Summary
holding that the defendant's allegations were incredible because the defendant acknowledged how much time he had spent deliberating over his plea change
Summary of this case from State v. LopezOpinion
No. State 123.
Argued October 29, 1974 —
Decided November 26, 1974.
APPEAL from a judgment of the county court of Waukesha county: WILLIAM G. CALLOW, Judge. Affirmed.
For the appellant there were briefs by John J. Valenti, Earl A. Hagen and Valenti, Flessas Koconis, all of Milwaukee, and oral argument by John J. Valenti.
For the respondent the cause was argued by David J. Becker, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
This is an appeal to review a judgment of conviction which was based upon pleas of guilty by the defendant Lee M. McKnight, entered on November 7, 1973, to the seven counts contained in an amended information. On November 12, 1973, the defendant's request to be examined under sec. 971.14, Stats., and his motion to withdraw his pleas of guilty were denied and he was sentenced on that day.
On January 2, 1973, the defendant was charged in Waukesha county with one count of burglary under sec. 943.10, Stats. The defendant was released on bail. On February 8, 1973, the defendant was charged with three counts of forgery in Waukesha county under sec. 943.38 (2). The court allowed the bail set for the burglary charge to stand for the forgery charges.
Subsequent to the above charges, the defendant was charged in Milwaukee county with burglary, party to a crime, under secs. 943.10 (1) (a) and 939.05, Stats., and theft under sec. 943.20 (1) (a) and (3) (c), relating to an incident on May 14, 1973, and attempted burglary, party to a crime, under secs. 943.10 (1) (a), 939.32 and 939.05, relating to an incident on June 27, 1973. After these charges were brought, the defendant was confined to the county jails in Milwaukee and Waukesha counties.
As to the Waukesha county charges, the defendant initially entered pleas of not guilty in March and June of 1973. In October, 1973, E. Michael McCann, district attorney of Milwaukee county, signed a consent for consolidation in Waukesha county of the charges pending against the defendant. This was done pursuant to sec. 971.09, Stats. The consent states that it was made pursuant to an application for such consolidation submitted by the defendant on October 2, 1973.
November 12, 1973, had been set as the date on which these matters would be heard in the Waukesha county court. However, on November 2, 1973, the defendant, without his attorney being present, appeared before the court and requested that he be allowed to use personal property of his friends as surety to meet the bail set in Milwaukee county. He was told that the deputy district attorney for Waukesha county would have to check with Milwaukee county to see if it would accept sureties other than a commercial surety. The defendant asked if Waukesha county didn't have jurisdiction over him because consolidation was there. He was informed that the consolidation papers were not yet on file in Waukesha county.
On November 7, 1973, the defendant and his attorney, John Valenti, appeared before the Waukesha county court. Mr. Valenti informed the court that "consolidation has been effectuated" and that the purpose of this hearing was to have the court determine what the conditions of bail would be. The court pointed out that bail had already been fixed in the matters before it. The deputy district attorney had not yet filed the consent for consolidation. The court said that it felt that the defendant's plea of not guilty made "consolidation unrealistic, because until he changes his plea, it would be inappropriate to file the consolidation." Mr. Valenti agreed and asked the court if the plea could be changed at this time with regard to the Waukesha county matters. The court agreed it could be done but that a record of the defendant's free and voluntary choice to change his plea would have to be made. A recess was granted to allow counsel to explain all of the matters to the defendant.
After the recess, Mr. Valenti stated he discussed the matters very thoroughly with the defendant and the defendant wanted to change his pleas to guilty. The court accepted the defendant's pleas of guilty following a determination that the change of pleas was freely and voluntarily entered after consultation with his attorney without threat or promise.
The consent to consolidation was then filed and the defendant entered pleas of guilty to the three counts contained in the amended information which had originally been brought in Milwaukee county. These pleas were also determined to have been freely and voluntarily made. The deputy district attorney then made a statement as to the facts upon which the charges were based. Mr. Valenti stated he did not choose to challenge the sufficiency of the offer of proof and the defendant agreed that the statement was substantially true.
November 12, 1973, was set as the date for a hearing for purposes of sentencing. The defendant, through his attorney, then requested the court to set terms with regard to bail. After the statements were made, the court determined that it would not permit the defendant to post bond and revoked the existing bonds. The basis of this determination was that the court was satisfied that the defendant would be deprived of his liberty as well as the fact that the defendant had now been convicted of seven serious charges.
On November 12, 1973, Mr. Valenti requested the court to appoint a psychiatrist to examine the defendant. He said the defendant had told him he thought he should be examined for mental reasons. Mr. Valenti advised the court that he was of the opinion that the defendant was "either feeble-minded or insane." The court then questioned the defendant as to why he thought he was mentally ill. The court then concluded that it could not find that "the defendant is probably mentally ill and that an evaluation is appropriate."
Mr. Valenti then filed a motion prepared by the defendant himself entitled "Motion to Withdraw Plea of Guilty." The court considered the motion point by point. The first point related to the court speaking to Mr. Valenti regarding restitution being a factor in sentencing. This point was raised because defendant had desired more time in which to raise restitution. The court stated that such a consideration was appropriate and that this was not a reason for the defendant to withdraw his plea.
The second point in the motion was that the defendant was advised to enter a plea of guilty to have his request for bail brought before the court. Mr. Valenti stated:
"I did advise him unless he entered a plea of guilty, consolidation could not be effected; that unless consolidation was effected, this Court could not entertain a motion with regard to bail; that the only way he could have the matter of bail heard by this Court was to effect consolidation and enter a plea of guilty."
Mr. Valenti apparently did feel a plea of guilty was appropriate. The court indicated that the matter of the defendant being advised to enter a plea of guilty is a matter between the defendant and his counsel.
The third point was that the court saw a letter from the district attorney for Milwaukee county to the district attorney for Waukesha county which accompanied the consent for consolidation. The court stated it had not seen the letter and declined to hear anything about it.
The fourth point was that the defendant felt that the trial judge, his attorney and the district attorney were only concerned with sentencing and not with matters the defendant wished to present. The court found this to be without merit because after the acceptance of the guilty pleas, the case was adjourned for five days for the purpose of hearing the defendant's witnesses before sentencing.
The final point raised was that he did not understand the proceedings against him and wanted to be seen by a doctor. The court replied to this as follows:
"The court will find the defendant at all previous hearings acknowledged that he understood the proceedings, and I find that allegation does not warrant the court permitting withdrawal of the plea. Mr. Valenti has stated the defendant has been seen by a doctor. The defendant in his last paragraph indicates he feels he is not competent to be sentenced at this time and requests to be examined by a doctor for physical and mental reasons, and that he is in severe pain from a growth in his throat and does not understand a lot of things his attorney talks to him about. I will find the motion before the court is the best evidence of his ability to understand and recall the proceedings. The court will find his motion is indicative of the competency of the defendant. There is no offer for the court to believe there is a reasonable doubt as to his competency. If the defendant is suffering from a physical problem with regard to his throat, medical advice would be made available to him, although it appears he has seen Dr. Glaser (the prison doctor)."
The trial court then received testimony from Sgt. Spellman, the jailer in charge of the Waukesha county jail. He testified that the defendant had been seen by a doctor, that he was allowed to have his fiance visit him as a special privilege because of his need to contact people, that he only made one attempt to use the phone and that prisoners are permitted to write all the letters they wanted. The court then found that the motion to withdraw the plea is without merit, that there is no reasonable doubt as to the mental state of the defendant and that there are no grounds upon which the plea should be withdrawn.
Following this determination evidence with regard to sentencing was presented. The court then sentenced the defendant to terms not to exceed ten years in prison on both the first and fifth counts and not to exceed five years on the remaining five counts. Some of the sentences run concurrently and some consecutively to others so that the maximum time in prison would be thirty years.
Three issues are presented on appeal:
1. Were the pleas of guilty entered and induced as a result of the trial court's failure to completely advise the defendant as to the consequences thereof?
2. Should the defendant have been permitted to withdraw his pleas of guilty prior to sentencing?
3. Did the trial court err in failing to appoint a physician to examine the defendant under sec. 971.14, Stats?
Consequences of the guilty plea.
The defendant contends that the trial court should have informed the defendant that by pleading guilty there would be such a material change of circumstances that it would he compelled upon a subsequent bail review to not only deny bail, but also to revoke all outstanding bail and order the defendant held in the county jail without bond pending sentencing.The defendant argues that "basic judicial fairness" required the trial court to inform the defendant as to what its position on bail would be because it must have known what its position would be and it knew the defendant's only purpose for requesting the hearing was to obtain a bail review.
The premise that the court knew that the only purpose for the hearing was to review the bail is not supported by a fair reading of the record. The record indicates that the trial court apparently considered that the matter of consolidation was the primary object of the November 7th hearing. When the defendant's case was called on November 7, 1973, the trial court indicated: "I understand there is before the Court a matter of consolidation or at least there are papers filed." At the beginning of the hearing during which the defendant eventually changed his plea, the court referred to the matter of consolidation. When Mr. Valenti brought up the matter of bail, the court said it felt consolidation was unrealistic because of the defendant's plea of no contest. Mr. Valenti agreed and asked if the plea could be changed at the time.
From the record, then, it is difficult to find either that the court was aware that defendant's only purpose for the hearing on November 7, 1973, was to have his bail reviewed or that defendant was induced to plead guilty because he felt that it was the only way to have the question of bail brought before the court.
In Drake v. State (1969), 45 Wis.2d 226, 233, 172 N.W.2d 664, this court stated:
"The inquiry that the trial court is required to make relates solely to the voluntariness of the plea or waiver and to their being knowledgeably and intelligently made. The decision as to waiver or plea is for the defendant to make. He is not required to state his reasons, and the court is not required to locate them."
The Drake Case and Seybold v. State (1973), 61 Wis.2d 227, 212 N.W.2d 146, recognize that the fact that an element of compulsion exists does not necessarily render guilty pleas involuntary. In Drake, the defendant's desire to plead guilty in order to avoid his wife's implication in his jail break was found to be a self-imposed coercive element which did not destroy the voluntariness of his plea. In Seybold, it was held that even assuming that the defendant was promised that if he pled guilty his wife would be given probation, this would not, ipso facto, render the plea involuntary.
In Rahhal v. State (1971), 52 Wis.2d 144, 151, 187 N.W.2d 800, this court stated:
". . . [A] plea otherwise valid is not involuntary because induced or motivated by the defendant's desire to get the lesser penalty."
Under the reasoning of these cases, even if the defendant's plea was motivated by a desire to have his bail reduced, this would not render the plea involuntary.
Additionally, the standards relating to the acceptance of guilty pleas as set forth in Ernst v. State (1969), 43 Wis.2d 661, 170 N.W.2d 713, do not require the trial court to tell the defendant exactly what will happen to him upon acceptance of the plea of guilty. This point was made clear in State v. Erickson (1972), 53 Wis.2d 474, 192 N.W.2d 872. There the defendant had pled guilty to a charge of selling heroin. When he appeared before the court for sentencing, the trial court said that it consistently denied probation where the sale of heroin was involved. The defendant, in seeking a reversal and withdrawal of his plea, argued that any judge who consistently denied probation to sellers of heroin must inform one charged with its sale of such prior dispositions or consistent policy before accepting the plea of guilty and that the failure to do so constituted a manifest injustice. In rejecting this argument, this court said:
"The defendant, at the time of entry of plea, is entitled to know what might or could happen to him, but not to an advance indication of what will happen." State v. Erickson, supra, at page 480.
Although this case dealt with the sentence imposed upon the defendant, it would apply equally to fixing bail pending sentence.
The acceptance of defendant's plea, then, was not error. The trial court owed no duty to question defendant as to why he was entering it after it was determined that it was voluntarily being done. Withdrawal of guilty plea.
The question of the withdrawal of a guilty plea prior to sentencing was fully discussed in Libke v. State (1973), 60 Wis.2d 121, 208 N.W.2d 331. After noting that it should be easier to withdraw a guilty plea before sentencing than after, this court reaffirmed its approval and adoption of sec. 2.1 (b) of the American Bar Association Standards Relating to Pleas of Guilty. That section provides in part:". . . Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea."
The "fair and just reason" test was said to contemplate the mere showing of some adequate reason for defendant's change of heart.
The defendant correctly points out that there are decisions which hold that a motion to withdraw a guilty plea made prior to sentencing should be permitted as a matter of course, absent a showing that the prosecution would be substantially prejudiced. See, for example, Commonwealth v. Santos (1973), 450 Pa. 492, 301 A.2d 829. This court was aware of such decisions at the time of the decision in Libke v. State, supra, at page 128.
While some courts have gone this far, others have not. In United States v. Webster (9th Cir. 1972), 468 F.2d 769, 771, certiorari denied, 410 U.S. 934, 93 Sup. Ct. 1385, 35 L. Ed. 2d 597, the circuit court of appeals said:
"It has long been clear that leave to withdraw a guilty plea should be freely granted prior to sentencing where there is a fair and just reason for doing so, Kercheval v. United States, 274 U.S. 220, 47 S. Ct. 582, 71 L. Ed. 1009 (1927); Kadwell v. United States, 315 F.2d 667 (9th Cir. 1963). It is equally clear, however, that withdrawal is not an absolute right and that the determination of whether it is to be permitted is committed to the sound discretion of the district court and will be reversed only for an abuse of that discretion."
In this case the defendant has not presented a "fair and just reason" for withdrawal of his pleas. Therefore, the trial court did not abuse its discretion in denying the motion to withdraw those pleas. The defendant argues that he was induced to plead guilty in return for a bail hearing and in the trial court he informed the court orally and in his motion that his attorney advised him that he would have to plead guilty before he could get a bail hearing. Furthermore, he asserts that he did not understand the proceedings.
While under certain situations these reasons may be sufficient to support a motion to withdraw a guilty plea, the failure to grant that motion in this case does not amount to an abuse of discretion. Here, the initial charge was brought on January 2, 1973. The defendant pled guilty on November 7, 1973. At the time defendant changed his plea to guilty, the trial court indicated its concern that the change of pleas was properly considered by the defendant. It said prior to the change of pleas:
"I would want the record to show that Mr. McKnight has anticipated changing his plea from not guilty to guilty for a considerable period of time. This is an important decision and I would want the charge to have been deliberated over by Mr. McKnight for a considerable time."
When questioning the defendant as to the voluntariness of the plea, the court asked how long he had contemplated changing his plea. The defendant replied "three or four weeks." This statement is supported by the consent for consolidation signed by the district attorney of Milwaukee county which states that on October 2, 1973, the defendant applied for consolidation under sec. 971.09, Stats., which necessarily involves pleading guilty to the charges. Considering these facts, it would not be an abuse of discretion to deny the motion based on defendant's assertion that he was induced to plead guilty to have a bail hearing.
With regard to the defendant's understanding of the proceedings against him, it should be noted that all of the way through these proceedings the defendant indicated he did understand what was happening. At the hearing scheduled to hear evidence with regard to sentencing, the defendant brought up his not understanding the proceedings for the first time before the court. At the same time defense counsel presented a motion the defendant prepared, which, from the court's discussion of it, would indicate that he understood the proceedings. Previously the defendant had pointed out to the court that jurisdiction over the Milwaukee county charges had been transferred to Waukesha county by virtue of the consolidation. This indicates a personal understanding of the proceedings. Question of defendant's competency.
The Wisconsin procedure regarding a determination of the defendant's competency is set forth in sec. 971.14, Stats. It provides that "whenever there is reason to doubt a defendant's competency to proceed," the court must appoint at least one physician to examine the defendant or order the defendant committed to a state or county hospital or other suitable facility for the purpose of examination. Prior to such an examination there must be either a determination of probable guilt or an adjudication of guilt. Because the defendant had pled guilty in this case, such a hearing to determine probable guilt would be unnecessary.It is obvious, however, that "extensive hearings and thorough psychiatric examinations are not vital prerequisites to the prosecution of every criminal case." Grissom v. Wainwright (5th Cir. 1974), 494 F.2d 30, 31. Before the competency of the defendant at the time of the proceedings must be looked into, there must be some evidence raising doubt as to his competence or a motion for a determination on the question setting forth the grounds for belief that such competency is lacking. Nathaniel v. Estelle (5th Cir. 1974), 493 F.2d 794.
The defendant here contends that the suggestion by counsel was sufficient to raise the question and thereby require the appointment of a physician to examine the defendant. We disagree. The suggestion of competency must be supported by facts giving rise to the doubt.
In this case the only factual basis for the requests for an examination were the defendant's own statements that he didn't understand the proceedings. At the same time defendant was claiming he didn't understand the proceedings, he was submitting a motion he prepared for withdrawal of his guilty plea. The motion was of such a nature to indicate to the court that the defendant did understand what the proceedings were about. The defendant had also written the court about matters relating to his bail which also led the court to believe that he had sufficient understanding of the proceedings.
The defendant points to the trial court's references to "reasonable doubt," while sec. 971.14, Stats., refers to "reason to doubt;" the inference being that the trial court applied the wrong standard. We think the trial court's finding of "no reasonable doubt" as to the defendant's competency to proceed is tantamount to a finding that there is no "reason to doubt" the defendant's competency to proceed. Therefore, the standard set forth in sec. 971.14 was in fact applied by the trial court in rejecting defendant's request.
From the record in this case we conclude that the trial court did not abuse its discretion in denying the defendant's motion to withdraw his pleas of guilty or in refusing to appoint a physician to examine the defendant to determine his competency to proceed.
By the Court. — Judgment affirmed.