Summary
vacating attempted armed robbery conviction underlying felony murder conviction
Summary of this case from State v. CoxOpinion
June 3, 1964 —
June 30, 1964.
ERROR to review two judgments of the circuit court for Milwaukee county: JOHN L. COFFEY, Circuit Judge. One judgment affirmed; one judgment vacated, and cause remanded with directions.
For the plaintiff in error there was a brief and oral argument by Michael J. Barron of Milwaukee.
For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were George Thompson, attorney general, William A. Platz, assistant attorney general, William J. McCauley, district attorney of Milwaukee county, and Aladin A. De Brozzo, deputy district attorney.
A single writ of error purports to bring to this court for review two judgments in the sense that there were two offenses charged and the trial court pronounced separate judgments of conviction and separate sentences. The two offenses were treated separately in the proceedings below in that there were separate written informations and commitments.
One offense charged was attempted armed robbery. Armed robbery is a violation of sec. 943.32, Stats. and the maximum sentence for armed robbery is thirty years. An attempt is defined in sec. 939.32, and that section specifies that whoever attempts to commit a felony may be imprisoned one-half the maximum penalty for the completed crime. In this case, the maximum penalty for the attempted crime was fifteen years.
The second offense with which Ronzani was charged was a homicide. The charge was originally murder, first degree, a violation of sec. 940.01, Stats., but this was later amended to murder, third degree, commonly known as felony murder, a violation of sec. 940.030 Sec. 940.03 provides that one convicted of a felony murder may be punished by imprisonment for a period of not more than fifteen years in excess of the maximum provided by law for the felony. Ronzani was convicted and sentenced on the same day on both the charge of third-degree murder and the charge of attempted armed robbery.
Ronzani was prosecuted along with his alleged coconspirator, one Charles Brown, who was convicted and sentenced at the same time and received the same sentences. Each of them received a fifteen-year sentence on the third-degree murder charge, and each also received a ten-year sentence on the attempted armed-robbery charge. The sentences were ordered to run consecutively, for a total of twenty-five years. The fifteen-year sentence for felony murder was ordered to be served prior to the ten-year sentence for attempted armed robbery.
Ronzani and Brown both lived in Kenosha. Ronzani was twenty-three years old and Brown nineteen. Ronzani was badly in need of funds. He testified under oath that he had thought about a robbery prior to the time that he and Brown went to Milwaukee from Kenosha on July 3, 1962, the date of the offense. Ronzani claims, however, that he had never communicated this intent to Brown until shortly before the crimes occurred.
Both Brown and Ronzani gave statements to the police, and there are some discrepancies between the two statements when compared with each other and also as between the statements when compared with the testimony of the two defendants at the trial. In addition, there were discrepancies between the testimony of Ronzani and of Brown at the trial While we refer to the trial, there actually was none, since the evidence was adduced after pleas of guilty by both defendants.
On arriving in Milwaukee, the two young men stopped at a car-rental office, where Ronzani had business, and then they visited Brown's sister. At about 9:20 p. m., they walked in front of a tavern which Ronzani suggested would be an easy place to rob. Ronzani had a pistol in a holster which he had brought with him from Kenosha. Brown took the pistol from Ronzani and entered the tavern.
Brown seemed to get cold feet after entering the tavern and came back out and told Ronzani that he could not rob the tavern. It appears to be undisputed that Ronzani then said, in substance, that Brown should forget it. Ronzani did not ask Brown to return the gun at this time. Ronzani turned and started to walk away from the tavern. Brown, on the other hand, re-entered the tavern.
The events which occurred inside the tavern are not precisely clear, but it seems that the owner of the tavern, who also was the bartender at the time, resisted what he believed to be a genuine holdup attempt. There were three patrons in the tavern in addition to the owner when Brown entered. There was a scuffle inside the tavern. One of the three patrons, a thirty-year-old man, was killed by a bullet from Brown's gun, and the tavern owner sustained a wound in the arm, also from the gun carried by Brown. Brown rushed out of the tavern, and Ronzani, in the meantime, had walked back to the tavern. He aided Brown in escaping by breaking Brown free from the hold of a pursuer. There is evidence that Ronzani also attempted to mislead the police in their pursuit of Brown.
Ronzani was questioned at the police station the same evening as the shooting, July 3, 1962, about possible involvement, since he was at the scene of the crime. He was released, however, about midnight, and he spent the night at the North Shore Line railroad station as he had missed the last train back to Kenosha. The police had requested that he return to the police station the next morning, and he complied, arriving at about 8:30 that morning, July 4, 1962. He was questioned by the police intermittently from about 10 a. m. until midnight, at which time he gave a signed statement.
The statement detailed his activities in connection with the crime, and there is a conflict in the evidence as to whether Ronzani's statement was a mere narrative which the police officer wrote down for him or whether, on the other hand, the police officer obtained Ronzani's statement by question and answer and then paraphrased it for the finished statement which Ronzani signed. Ronzani claimed at the trial that he was tired and did not carefully read the statement before signing it. It is contended on this appeal that the statement signed by Ronzani was not so much his statement as the statement of the police officer who wrote it down, since it is claimed that there were words used in the statement which were beyond the educational and mental attainments of Ronzani, who had only a ninth-grade education. Brown was arrested on July 5th at Kenosha, and he also gave a statement, which he wrote himself, acknowledging his participation in the crime.
Ronzani and Brown originally waived their preliminary examinations but, on request of their separate counsel, the cases were remanded on July 13, 1962, for preliminary examinations, which were held. On September 21, 1962, the defendants were arraigned in the circuit court, and they each entered pleas of not guilty to both first-degree murder and attempted armed robbery. Jury trial was set for January 21, 1963; however, on October 29, 1962, the assistant district attorney asked permission of the court to amend the information so as to change the first-degree murder charge to third-degree murder. Permission was granted, and both defendants then entered pleas of guilty to both charges, third-degree murder and attempted armed robbery.
Immediately after they each entered their pleas, the trial court stated that the pleas were "accepted." A hearing which we have previously referred to as the "trial" was then held. The statements of Brown and Ronzani were read into the record without objections, although the attorneys for both defendants were present and did cross-examine certain witnesses. Both Brown and Ronzani testified personally under oath, and there is nothing in the record to show that either of them was given any promise of immunity as to prosecution for other offenses. At the conclusion of this hearing, the trial court then found the defendants guilty. Thereupon, they were sentenced as noted above.
Upon this writ of error, Ronzani has requested that his convictions be set aside in the interests of justice.
The state urges that the instant writ must be dismissed for the reason that there were two separate judgments of conviction and there is only one writ of error seeking a review of both of said judgments. Montgomery v. American Central Ins. Co. (1900), 106 Wis. 543, 545, 82 N.W. 532. We consider that this defect is cured in the instant case by sec. 269.51(1), Stats., which provides that when an appeal is attempted and a return is duly made, the respondent who has not moved to dismiss the appeal shall be deemed to have waived all objections to the regularity of the appeal. Ford v. Rothwell (1964), 23 Wis.2d 80, 83, 126 N.W.2d 489; Fox v. Koehnig (1926), 190 Wis. 528, 530, 209 N.W. 708. Since the state did not make a timely objection nor bring a motion to dismiss, we conclude that under sec. 269.51(1) the irregularity of attempting to have two judgments reviewed via one writ has been waived.
The gravamen of Ronzani's requested review is that a new trial should be granted in the interests of justice because the accused entered ill-advised pleas of guilty. It is contended that Ronzani had perfected a withdrawal before the commission of the crimes and also that he signed a statement at the police station which was not the product of his free will. Ronzani had the benefit of legal counsel and entered guilty pleas. The trial court made an adequate record before adjudging the accused to be guilty upon his pleas. Pulaski v. State (1964), 23 Wis.2d 138, 144, 126 N.W.2d 625.
The record before us does not disclose such probability of the miscarriage of justice to warrant our use of the discretionary power of sec. 251.09, Stats. See Ferry v. State (1954), 266 Wis. 508, 511, 512, 63 N.W.2d 741.
Although the issue is not urged in Ronzani's brief, the state has brought to our attention the fact that there is an overlapping in connection with the two charges of which Ronzani was convicted and sentenced. Ronzani was convicted of third-degree murder, also known as felony murder, under sec. 940.03, Stats. He was also convicted of the underlying felony of attempted armed robbery under secs. 943.32 and 939.32. There is no question but that Ronzani was adjudged guilty of both a felony and a murder which occurred in the course of the perpetration of such felony.
The sentences for the two respective crimes were made to run consecutively. The trial court did not assess the maximum sentence for the felony murder but instead actually sentenced Ronzani to fifteen years for such crime. The maximum punishment for the attempted armed robbery is fifteen years, and the trial court ordered a ten-year sentence in connection with such felony.
A fundamental error occurred when Ronzani was convicted on both charges and sentenced thereunder. In State v. Carlson (1958), 5 Wis.2d 595, 93 N.W.2d 354, this court pointed out that it is proper when a death occurs during the course of a felony to charge the accused with only third-degree murder. However, a separate verdict regarding the underlying felony is to be submitted to the jury. because such underlying felony is an included crime within the meaning of sec. 939.66(1), Stats. In the Carlson Case, this court said, at page 609:
"But the jury should be instructed to sign but one verdict, so that if they found the defendant guilty of third-degree murder they would make no finding with respect to the separate form of verdict of [the underlying felony]."
Unlike the Carlson Case, there is distinct prejudice to the accused in this case because of the fact that here the sentences for the separate crimes were made to run consecutively. It follows that the conviction and sentence for the attempted armed robbery must be set aside.
We find no irregularity, however, in the conviction for third-degree murder. In our opinion, Ronzani was "duly convicted" of such crime upon his plea of guilty thereto. Sec. 939.73, Stats. The sentence for such conviction should, however, be set aside and the cause remanded to the trial court for the purpose of resentencing as to the crime of third-degree murder. We have determined to remand for resentencing because the original sentence of Ronzani for third-degree murder may reflect the trial court's erroneous conclusion that a consecutive sentence could also be given for the attempted armed robbery. In connection with such resentencing, the trial court should give consideration to the time which Ronzani has already served. This is consistent with the spirit of ch. 22, Laws of 1963, amending sec. 958.06.
By the Court. — Judgment upon conviction of attempted armed robbery and the sentence based thereon are vacated. Judgment upon conviction for third-degree murder is affirmed, but the sentence of the circuit court for Milwaukee county upon the conviction for third-degree murder is vacated. The superintendent of the Wisconsin state reformatory, Green Bay, is ordered to remand the custody of Robert Reno Ronzani to the sheriff of Milwaukee county pending his resentence by the circuit court for Milwaukee county upon his conviction for third-degree murder.