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Belcher v. State

Supreme Court of Wisconsin
Apr 1, 1969
166 N.W.2d 211 (Wis. 1969)


pointing out that personal, but not subject matter, jurisdiction can be waived

Summary of this case from Gomez v. Bd. of Fire & Police Comm'rs for City of Milwaukee


Nos. State 42, 111.

Argued March 7, 1969. —

Decided April 1, 1969.

ERROR to review a judgment and orders of the circuit court for Milwaukee county: CARL H. DALEY, Reserve Circuit Judge, and LEWIS J. CHARLES, Circuit Judge of the Fifteenth circuit, Presiding. Affirmed.

For the plaintiff in error there was a brief and oral argument by Stanley F. Hack of Milwaukee.

For the defendant in error the cause was argued by Harold B. Jackson, Jr., assistant district attorney of Milwaukee county, with whom on the brief were Robert W. Warren, attorney general, and E. Michael McCann, district attorney.

On October 11, 1963, in the county of Milwaukee and at a business place called the Mayfair Shopping Center, a jewel robbery was committed during which a policeman was shot by one of the participants. Six persons, including John Belcher, were believed to have been parties to the commission of the two crimes.

On October 17, 1963, the district attorney of Milwaukee county advised the United States attorney for the Eastern district of Wisconsin that a warrant was pending against the defendant, John Belcher, his wife, Janice Belcher, and Walter Wheeler. The district attorney's letter stated that the warrant charged these individuals with armed robbery and attempted murder. It concluded by requesting that federal proceedings be commenced, charging the defendant and others with unlawful flight to avoid prosecution. Pursuant to such request, a federal complaint was issued on October 18, 1963. In fact, at this time and at all other times during the instant proceedings prior to approximately August, 1967, there were no state complaints or warrants on file herein or available to the defendant.

The defendant, his wife, and Walter Wheeler were arrested and taken into custody in late October, 1963, in North Hollywood, California, by agents of the Federal Bureau of Investigation. The FBI transferred custody of the defendant and others to authorities of the state California. Thereafter, Wisconsin authorities were apparently notified of their apprehension.

On November 1, 1963, officials of the state of California prepared, executed and filed a complaint-felony-fugitive against the defendant in the municipal court of Los Angeles judicial district, county of Los Angeles, state of California (case No. MC 187782). The complaint was sworn to by E. D. McClue and charged that on or about October 12, 1963, defendant had committed the crimes of attempted murder and armed robbery in Milwaukee county, Wisconsin. The complaint further charged that the defendant had been complained against before the clerk of county court of Milwaukee county, who had jurisdiction to examine and commit for trial in the proper court the person charged with said offenses and that a warrant of arrest was duly and regularly issued for his arrest and apprehension, and that said charges were then pending. Finally, the complaint stated that after committing said offenses, defendant voluntarily left Wisconsin and was a fugitive from justice in the county of Los Angeles, state of California.

Defendant was then turned over to Wisconsin authorities and conveyed to Milwaukee county jail.

On November 14, 1963, two informations were filed in circuit court, Milwaukee county, charging the defendant with armed robbery and attempted murder. On that same date, the defendant appeared in circuit court before the Honorable JOHN L. COFFEY, circuit judge. The defendant moved to dismiss and/or to remand for a preliminary examination under authority of sec. 955.18, Stats. However, no determination was then made on the motions.

The subject of bail was also considered at the initial hearing in the Milwaukee court. The district attorney recommended bail of $25,000 for armed robbery and $50,000 for attempted murder. Counsel for defendant objected on the ground that such amounts were excessive and pointed out that the court had before it only the informations dated November 14, 1963, and that there were no complaints or warrants indicating who had made accusations against the defendant which would justify such amounts. The court, however, followed the district attorney's recommendations.

On November 21, 1963, the Honorable JOHN L. COFFEY denied the defendant's motions to dismiss and for a preliminary examination and declined to review the matter of bail. The defendant was then arraigned. He pleaded not guilty and requested trial by jury.

Thereafter, the district attorney moved to consolidate the instant case with those against Janice Belcher and Walter Wheeler. The defendant opposed the motion on the ground that he could not get a fair and impartial trial. The court adjourned without making a decision.

On November 27, 1963, the district attorney withdrew the motion to consolidate inasmuch as the charges against the defendant and others were contained in joint informations and moved instead to transfer the cases to another court because of an affidavit of prejudice filed by a codefendant.

The defendant again moved for a separate trial. Since the court had disqualified itself in this matter, no decision was made.

The cases were then referred to the court administrator for assignment to a new judge. On December 20, 1963, the court administrator assigned the cases to the Honorable HERBERT J. STEFFES, circuit judge. They were then referred back to the court administrator on January 10, 1964, for reassignment. On January 17, 1964, the cases were assigned to the Honorable CARL H. DALEY, reserve circuit judge.

On February 21, 1964, the district attorney moved to consolidate the instant informations with informations charging John Seybold, George Spies and Ruth DelVecchio with armed robbery and attempted murder. The defendant again requested a separate trial. The trial court held both motions in abeyance.

On May 4, 1964, the trial court ordered consolidation and denied the defendant's motion for a separate trial. At this point, several codefendants and the defendant asked for a change of venue because of inflammatory and adverse newspaper and radio publicity. After examining the basis for this motion, the trial court denied the request.

Finally, on May 7 and May 8, 1964, a jury was impaneled and the trial commenced on May 8th. The district attorney asked that the court and jury view the scene of the alleged crime. This request was granted and the scene was viewed.

The trial continued with several witnesses testifying on behalf of the state.

On May 13, 1964, after several days of trial, and prior to any witnesses testifying on behalf of the defendant or any of the codefendants, all of the defendants requested leave to withdraw their pleas of not guilty. Thereafter, certain charges were dropped against the female defendants because the district attorney said that he lacked evidence to obtain convictions on such charges. The defendant pleaded guilty and was sentenced to two indeterminate terms of twenty years each to run consecutively.

After sentencing, the defendant sought judicial review. He requested this court to appoint counsel to prosecute an appeal. On February 22, 1965, this court appointed an attorney. The defendant requested said attorney to file a motion to withdraw the pleas of guilty and for new trials. After some disagreement, the defendant himself filed a motion on March 9, 1965. This was approximately ten months after conviction and within one year as required by statute. He then sought a hearing.

On April 30, 1965, the attorney asked this court to issue a writ of error to preserve the defendant's rights. The writ issued May 3, 1965. Several months later and prior to any hearing on the defendant's pending motion in circuit court, the first attorney asked to withdraw and permission was granted.

The defendant then requested a second attorney. On October 1, 1965, this court granted his request. Approximately three weeks later, the second attorney asked to withdraw, stating that he had reviewed the files, conferred with the district attorney and found no arguable merit. This request was granted.

The defendant's motion having not been heard, he sought a third attorney. This court denied his request.

On December 9, 1965, the defendant filed a petition with the United States Supreme Court requesting a writ of certiorari to review the order of this court denying the appointment of counsel and other issues. The state of Wisconsin was asked to respond.

On December 9, 1965, this court issued an order to show cause why the writ of error issued on May 3, 1965, should not be dismissed for failure to prosecute. This matter was held in abeyance while the United States Supreme Court considered the defendant's petition of December 9, 1965.

On February 7, 1966, the defendant filed a supplement to the March, 1965, motion pending in circuit court, Milwaukee county. In this supplement, defendant alleged that there had never been warrants or complaints on file. He again requested a hearing. At a hearing before the Honorable CARL H. DALEY, on March 18, 1966, the defendant requested the court to provide counsel, but his request was denied. After the above motions of the defendant were denied, this court appointed present counsel in April, 1966. Since the United States Supreme Court was considering various aspects of this case, matters were held in abeyance pending its decision.

In May, 1967, the United States Supreme Court granted the defendant's petition for a writ of certiorari and remanded the case to this court for further consideration in light of Anders v. California. Present counsel was then authorized to prosecute the original writ of error (May 3, 1965), and this court dismissed its order to show cause.

On June 23, 1967, a hearing was held on the defendant's motions before the Honorable CARL H. DALEY. However, inasmuch as this court had not yet formally acted on the mandate from the United States Supreme Court, the hearing was adjourned. It was stipulated that the hearing would be completed at the convenience of the parties as soon as this court acted, i.e., this court's reconsideration of the appointment of third counsel in the light of Anders v. California. This court acted with the appointment of present counsel but Judge DALEY found himself unable to act further at this time and he withdrew (no record). Thereafter, the Honorable LEWIS J. CHARLES was appointed to hear postconviction motions.

Evidentiary hearings were held on November 7, 8, and 15, 1967.

On June 18, 1968, Judge CHARLES denied the defendant's motions. Asked to reconsider this denial, the court denied the motion to reconsider on July 11, 1968. Two writs of error were issued to review these two errors.

Thus, this review is asked on these two writs of error and the original May 3, 1965, writ.

The first issue presented on this review is the significance of (1) defendant's efforts to gain the assistance of the court on his own initial motions in the trial court, and (2) his pleas of not guilty and guilty, all made or entered in the trial court without making and preserving objections to the court's personal jurisdiction over him.

Defendant contends that when the United States attorney for the Eastern district was requested to issue a fugitive warrant there were not on file in the Milwaukee courts the requisite complaints and accompanying warrants charging this defendant with these two crimes. He further contends that he objected to the jurisdiction of the Milwaukee circuit court when he was returned from California.

Notwithstanding these contentions, the fact is that the defendant submitted to the jurisdiction of the court by (1) making various motions to the trial court prior to pleading, and (2) twice pleading to the charges contained in the informations, all without making and preserving an objection to the trial court's jurisdiction over his person.

Jurisdiction over the person can be conferred by consent of the defendant, or a defense based on the lack of personal jurisdiction can be waived by pleading to the information without making proper objection. In State ex rel. La Follette v. Raskin, this court stated that, ". . . [a]lthough jurisdiction of subject matter is derived from law and cannot be waived nor conferred by consent, this is not true of jurisdiction over the person."

Id. at page 45.

In Raskin, this court was dealing with the timeliness of an objection to the sufficiency of a warrant being challenged on the grounds of State ex rel. White v. Simpson. It was held that the motion to dismiss on White grounds was not timely when it was "made for the first time only after the defendant had been arraigned, entered a plea, and had a jury trial which resulted in a mistrial."

Supra, footnote 2, at page 43.

Relying upon Kushman v. State ex rel. Panzer, and State ex rel. Wojtycski v. Hanley, this court stated that "a defendant who has appeared in court with counsel without contesting the validity of the arrest, has submitted to the jurisdiction of the court and has waived his right to attack the arrest warrant."

Supra, footnote 2, at page 47.

In Kushman the court stated:

". . . Defendant entered a plea of not guilty, demanded a jury trial, and the trial proceeded without any challenge as to the sufficiency of the complaint. If it was insufficient for any reason it should have been challenged before proceeding with the trial. . . . [Citing the forerunner of sec. 955.09, Stats.]"

Supra, footnote 6, at page 139.

Sec. 955.09 (3), Stats., provides as follows:

"(3) Defenses and objections based on defects in the institution of the proceedings, insufficiency of the information or indictment, invalidity in whole or in part of the statute on which the prosecution is founded, or the use of illegal means to secure evidence (except confessions) must be raised before trial by motion or be deemed waived. . . ."

In Hanley, the court stated that, "[i] n entering his plea in abatement, [comparable to a motion to dismiss under the present sec. 955.09 (1), Stats.] relator acknowledged and submitted to the jurisdiction of the municipal court."

Supra, footnote 7, at page 112.

The opinion further provided that:

"At the time the writ was filed in the instant case, relator had appeared in the municipal court and entered a plea of abatement, and upon the overruling thereof, a plea of not guilty. Jurisdiction to try an offender for a crime of which the court has jurisdiction is obtained by his appearance in court, and by pleading guilty or not guilty, jurisdiction of his person is conferred on the court."

Id. at page 113.

When the defendant entered his plea of not guilty on November 21, 1963, and his plea of guilty after four days of trial he did not object to the trial court's jurisdiction over his person.

By pleading guilty to the charges defendant did not necessarily waive his right to jurisdictional defenses. In Hawkins v. State, this court stated:

"It appears to be the general rule, that a plea of guilty, voluntarily and understandingly made, constitutes a waiver of nonjurisdictional defects and defenses, including claims of violation of constitutional rights prior to the plea. As the plea itself provides the basis for conviction no evidence need be introduced, and the right to a trial free of evidence illegally obtained is forfeited."

Id. at page 448.

Also, in Pillsbury v. State, this court said that, ". . . [o]ne cannot waive lack of jurisdiction of the subject matter or confer it on a court by consent." The opinion went on to define "subject matter jurisdiction" as follows:

Id. at page 94.

". . . Criminal jurisdiction of the subject matter is a power of a court to inquire into the charge of the crime, to apply the law, and to declare the punishment in the court of a judicial proceeding and is conferred by law."


But here as in Raskin the defendant submitted to the jurisdiction of the court over his person by his initial plea and his later plea, both made without making or reserving his objection to the court's personal jurisdiction.

In Raskin, this court also noted that a defendant submits to the personal jurisdiction of the court if the defendant himself invokes that jurisdiction by asking for affirmative assistance of that court.

Raskin, supra, footnote 2, at pages 47, 48.

The record in the present case reveals that when defendant appeared in court on November 14, 1963, his counsel made two motions: (1) Counsel moved for dismissal of the informations and remand to the county court for a preliminary examination; and (2) counsel moved for a reduction in the amount of bail. In making the motion for reduction in bail, counsel indicated to the court that there was no complaint or warrant on file to indicate who made the accusations against defendant which would justify such a high bail. However, the record does not reveal that on this date counsel in any way challenged the jurisdiction of the trial court over the person of defendant.

We conclude that the defendant submitted to the jurisdiction of the trial court over his person and waived any objection he may have had thereto.

As to the defendant's contentions about the missing complaints and warrants, the trial court found that on October 12, 1963, a member of the Wauwatosa police department appeared at the office of the district attorney of Milwaukee county and signed two complaints against defendant; that following the signing of the complaints, the warrants were issued; that the two complaints remained in the office of the clerk of courts and the warrants were delivered to and taken by Milwaukee county law enforcement officers; that thereafter application was made to the United States district court for the Eastern district of Wisconsin for issuance of a fugitive warrant which was issued; that a short time later, the defendant, his wife, and one other codefendant were taken into custody by federal officers in North Hollywood, California.

The trial court further found that the three defendants waived extradition and were returned to Milwaukee; that the warrants were returned to the office of the district attorney of Milwaukee county by the officers in whose hands they had been placed on or about October 12, 1963; that these warrants remained in the office of the district attorney until sometime in August, 1967, at which time they were placed in defendant's court file. The trial court also found that the criminal complaints supporting the warrants had found their way into the district attorney's office and were not placed in defendant's court file until August of 1967.

None of these findings is against the great weight and clear preponderance of the evidence. Because the defendant submitted to the jurisdiction of the court we do not reach the question of what effect, if any, the temporary misplacement of the complaints and related warrants may have had.

The second issue presented on this review is whether the defendant's plea of guilty was voluntarily and understandingly made.

In State v. Reppin, this court adopted the "manifest injustice" test as set forth in the American Bar Association Project on Minimum Standards for Criminal Justice — Pleas of Guilty. Those standards provide that the court should permit a guilty plea to be withdrawn whenever the defendant proves that: "(3) the plea was involuntary. . . ." Defendant contends that his plea was changed to guilty because of fear and not out of free choice, i.e., that it was involuntary. He claims that the only reason he pleaded guilty was to save his wife from a long prison term.

(Tentative Draft, February, 1967), Part II, sec. 2.1 (a) (ii) (3), pp. 9, 10.

As previously indicated, the record in this matter reveals that the defendant did not initially plead guilty to the offenses charged. On November 21, 1963, defendant originally pleaded not guilty. Not until four days of trial had elapsed in May of 1964 did the defendant request leave to change his plea to guilty. The actual circumstances of that change of plea are shown dramatically by the actual trial record. During the testimony of one of the state's witnesses, Attorney Dominic Frinzi, representing defendant, requested a five-minute conference because of a "new development." After this conference the following occurred:

"Mr. Frinzi: Your Honor, before the jury returns, on behalf of the defendant John Belcher, at this time I'd like to beg leave of the court to withdraw our plea of not guilty on both counts, the robbery armed, and the attempted murder; and at this time we are prepared to enter a plea of guilty on both counts.

"I'd like to also ask the court whether the court wants the record to show that this act is the free and voluntary act of the defendant for the purposes of the record.

" The Court: Yes.

" Mr. Frinzi: Mr. Belcher, as your lawyer, you have heard the statement I have just made to the court?

" Defendant John Belcher: Yes.

" Mr. Frinzi: Now, is it your wish and desire that we withdraw the plea of not guilty in both counts, the armed robbery and the attempted murder, and enter a plea of guilty on both counts?

" Defendant John Belcher: That's right.

" Mr. Frinzi: You understand that under the law of the state of Wisconsin, the Constitution of the state of Wisconsin, and the United States Constitution, that you have a right to have both these matters determined by a jury of your peers?

" Defendant John Belcher: Correct.

" Mr. Frinzi: Knowing that, is it still your desire to withdraw your plea of not guilty and enter pleas of guilty on both counts?

" Defendant John Belcher: It is.

" Mr. Frinzi: And you are doing this freely and voluntarily; is that correct?

" Defendant John Belcher: That is correct.

" Mr. Frinzi: And no promises or threats have been made to you in order to obtain this plea; is that correct?

" Defendant John Belcher: That's correct.

" Mr. Frinzi: That is it, Your Honor."

Thereafter all of the other male defendants changed their pleas. At the request of the assistant district attorney the court inquired as to the defendant's guilty plea:

" The Court: Mr. Belcher.

"(Defendant John Belcher stands.)

" The Court: Were there any inducements offered to you in order to get you to change your pleas of guilty?

" Defendant John Belcher: No, sir.

" The Court: Of not guilty to guilty?

" Defendant John Belcher: No.

" The Court: And nobody has made any statements to you as to what the district attorney would recommend or what the court would do?

" Defendant John Belcher: None whatsoever.

" The Court: You realize the seriousness of the offense and what the punishment is for each crime, don't you?

" Defendant John Belcher: I do.

" The Court: That is all."

Thereafter, defendants were found guilty.

At the postconviction hearing, defendant testified that because of the psychological coercion and the promises of Attorney Goldsmith at the trial, he found it necessary to plead guilty in order to have his wife get probation. However, Attorney Goldsmith testified for the state that he never made threats or guarantees to defendant as to what would happen to his wife if he pleaded guilty. He stated that he told defendant that whether or not he pleaded guilty it was his opinion that Mrs. Belcher would be placed on probation.

The trial court's memorandum opinion, dated June 18, 1968, stated in part as follows:

"It is the position of the defendant that his plea was not voluntary in that it was made for the purpose of assuring that his then wife, Janice Belcher, would be placed on probation; and that if he had not entered a plea of guilty and if Janice Belcher was found guilty by the jury she would receive a substantial sentence to the Wisconsin Home for Women. Aside from the fact that we have been long associated upon the bench with the Hon. Carl H. Daley and are satisfied that his professional standards would not permit him to enter into any presentence bargain, the record discloses affirmatively that all defendants were clearly and unmistakenly advised throughout the trial and before entry of their pleas of guilty that no commitment of any nature had been made by the trial judge, or by any one else. Mr. Belcher was advised by Mr. Max Goldsmith, an attorney of the highest ability and competence, counsel for Janice Belcher, that in his opinion no matter whether Janice Belcher was found guilty by way of a plea or by verdict of a jury she would receive probation."

As to the credibility of defendant's witnesses at the postconviction hearing, the trial court stated:

"The recollections of the witnesses called by the defendant were far from crystal clear, except as to matters favorable to him. We observed each witness on the stand and his and her manner of testifying. Where there is a conflict between their testimony and that of any other witness their testimony is rejected. We are satisfied, and so find and determine, that there were no promises made by any one to John Belcher; there was no commitment, prior to the plea of guilty, made by the trial judge; there was no agreement by the prosecuting attorney that he would act favorably should a guilty plea be entered; there were no threats made by anyone; there were no inducements offered by counsel for the defendants or by anyone else. The most that was said by any defense counsel was that, should there be guilty pleas, it was believed that the two women would be placed on probation."

Continuing, the court stated that:

"It may be that in entering his plea of guilty John Belcher was motivated by a desire to see his wife avoid incarceration. It may properly be assumed that his desire was also shared by his wife, Janice. She did receive probation and is now beyond all reach of the law insofar as the events of October 11, 1963, are concerned. Both received precisely what they wanted. Now, the defendant says this was wrong. Wrong not by reason of any threats, promises or inducements made by defense counsel, by the court or by the prosecution; but wrong because, though free and voluntary, the choice was one he should not have made. Upon reflection, he tells us now, he should have forced his wife to take her chances on going to prison, while at the same time he should have taken the gamble of his going free on a not guilty verdict by the jury."

Thus, the trial court found as a matter of fact that there was no psychological coercion; that no threats were made to defendant; and that the guilty pleas were freely and voluntarily entered. These findings are not against the great weight and clear preponderance of the evidence.

As a third issue, defendant presents three other questions as to nonjurisdictional errors occurring in the trial, i.e., the denial of a preliminary hearing, the denial of a separate trial, and the amount of bail.

Hawkins v. State holds that a plea of guilty, voluntarily and understandingly made, constitutes a waiver of nonjurisdictional defects and defenses.

Supra, footnote 12.

Id. at page 448. See State v. Lampe (1965), 26 Wis.2d 646, 648, 133 N.W.2d 349; McLaughlin v. State (1966), 32 Wis.2d 124, 131, 145 N.W.2d 153.

Defendant's pleas were voluntarily and understandingly made and accordingly we cannot properly consider these allegations of error.

By the Court. — Judgment and orders affirmed.

Summaries of

Belcher v. State

Supreme Court of Wisconsin
Apr 1, 1969
166 N.W.2d 211 (Wis. 1969)

pointing out that personal, but not subject matter, jurisdiction can be waived

Summary of this case from Gomez v. Bd. of Fire & Police Comm'rs for City of Milwaukee
Case details for

Belcher v. State

Case Details

Full title:BELCHER, Plaintiff in error, v. STATE, Defendant in error

Court:Supreme Court of Wisconsin

Date published: Apr 1, 1969


166 N.W.2d 211 (Wis. 1969)
166 N.W.2d 211

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