Opinion
No. State 140.
Decided April 20, 1973.
ORIGINAL ACTION for writ of habeas corpus. Petition denied.
For the petitioner the cause was submitted on the brief of Howard B. Eisenberg, state public defender, and Ronald L. Brandt, assistant state public defender.
Fact finding was ordered by this court as prescribed in State ex rel. White v. Gray in connection with this original action for a writ of habeas corpus. The petitioner was convicted by the county court of Racine county, branch II, County Judge WILLIAM F. JONES presiding, of burglary contrary to sec. 943.10 (1) (a), Stats., following his plea of guilty on March 24, 1971. Petitioner was later sentenced to eight years. He then moved to withdraw his guilty plea. Following a hearing on that motion on August 2, 1971, the motion was denied. The state public defender was appointed to represent the petitioner and the time for appeal having expired, a petition for habeas corpus was filed with this court raising the question of the alleged involuntariness of the plea.
(1973), 57 Wis.2d 17, 203 N.W.2d 638.
Essentially, petitioner contended that there was an alleged plea bargain which induced his guilty plea, which bargain was to the effect that if the petitioner Raymond White would plead guilty, the state would drop charges related to this burglary incident against his brother, Joseph White. It was contended that the plea bargain was against public policy, resulted in an involuntary plea, and that there was a conflict of interest when the petitioner's trial counsel, James Bremer, participated in the bargaining agreement under which Raymond pleaded guilty in exchange for the dropping of charges against his brother, Joseph. Because of the incompleteness of the record in the trial court, both at the time the guilty plea was taken and at the time the motion for withdrawal of the plea was heard, this matter was referred to the trial court for further fact finding as spelled out in the original decision of this court, entered on January 30, 1973.
Id.
An extensive hearing on remand was conducted by the trial court on February 21, 1973, and again on March 1, 1973. As a result, the trial court submitted on March 16th its findings and conclusions, entered March 14, 1973. As pertinent here, these findings are as follows:
"(17) That an alleged plea bargain did not exist. . . .
"(18) That there was no misconception of the consequences of the plea of guilty entered March 24, 1971. . . .
"(19) That he knew his past record of convictions, he heard the recommendations of the prosecutor for maximum incarceration under the statute, and that he had an opportunity to make some objection before sentencing, as he has made after sentencing, and that he had a choice and he chose not to object.
"(20) That no. coercion was used, the decision of what plea to enter was up to Raymond White. . . .
"(21) That the testimony of Raymond White and Joseph White is considered in the light of their interest in the matter, and the testimony, considered with all the facts and circumstances, lacks the quality of truth.
"(22) That no conflict of interest came to exist between the two defendants and their attorney, Mr. James Bremer, which also was admitted by Ronald L. Brandt [assistant state public defender].
"(23) That the totality of the factual circumstances preceding and entering the plea of guilty, is completely devoid of any physical or psychological pressures, including threats or promises aimed at, or which resulted in the making of his plea of guilty, which was obtained under such factual circumstances that the plea was freely and voluntarily made, and that he knowingly and intelligently entered such plea, and it was his free and deliberate choice."
The trial court found as conclusions of law that no plea bargain existed and that petitioner's plea of guilty was freely and voluntarily made. The court also concluded that no conflict of interest came to exist by virtue of Attorney Bremer representing both White brothers. Competing motions have been made to affirm and modify the findings as made.
There is a single issue now before the court. It is: Should this court affirm the trial court's findings of fact and conclusions of law?
When a reference is made for fact finding on a habeas corpus question, the standard of this court's review of the findings is that we will affirm the findings unless they are against the great weight and clear preponderance of the evidence. Credibility of witnesses in these fact findings is in the particular province of the fact finder as is true generally in the conduct of criminal trials. As indicated in our prior decision, at the hearing on the motion to withdraw the guilty plea held on August 2, 1971, the petitioner Raymond White testified that there had been a plea bargain agreed upon prior to his guilty plea. The alleged bargain was that the charges against his brother Joseph would be dropped if he would plead guilty. Because the record left some doubt whether there actually was this or any other plea bargain, this court called for additional fact finding. At the further hearing held February 21, 1973, the petitioner continued to assert his basic claim that there was such a plea bargain. On the other hand, both the assistant district attorney for Racine county, who prosecuted the petitioner on the burglary charge, and Attorney James Bremer, his court-appointed trial counsel, testified that there was no such bargain. Thus a clear question of credibility is presented and the trial court's findings indicate that it considered the testimony of Attorneys Ruzicka and Bremer credible, whereas the testimony of the petitioner was incredible. This was for the trial court to determine and its finding that there was no plea bargain is not against the great weight and clear preponderance of the evidence. The contention that the plea was involuntarily made because of the alleged plea bargain necessarily falls as does the claim that there was a conflict of interest on the part of Attorney Bremer when he continued to represent both brothers. The extensive additional hearing here has clarified the situation surrounding the guilty plea and is a further illustration of the desirability of making a complete record at the time a guilty plea is made of any alleged plea bargain which has preceded that plea.
State ex rel Casper v. Burke (1959), 7 Wis.2d 673, 676, 97 N.W.2d 703.
Gauthier v. State (1965), 28 Wis.2d 412, 416, 137 N.W.2d 101.
Supra, footnote 1.
Supra, footnote 1, at pages 22-25.
The findings of fact and conclusions of law are affirmed.
By the Court. — Petition for writ of habeas corpus denied.