In State v. Wolfe (1970), 46 Wis.2d 478, 175 N.W.2d 216, we considered the impropriety of judicial participation in plea bargaining and stated that the vice of such judicial participation is that it destroys the voluntariness of the plea.Summary of this case from Seybold v. State
No. State 133.
Argued March 5, 1970. —
Decided March 31, 1970.
APPEAL from an order of the county court of Monroe county: JAMES W. RICE, County Judge. Affirmed.
For the appellant there were briefs by Arneson, Berg Doyle and Patrick R. Doyle, all of La Crosse, and oral argument by Patrick R. Doyle.
For the respondent the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Robert W. Warren, attorney general, and Donald L. Goodman, district attorney of Monroe county.
Appellant, Robert Lee Wolfe, Jr. (hereinafter referred to as defendant), a nineteen-year-old resident of Sparta, Wisconsin, was arrested on June 12, 1969, and charged with three offenses: (a) The delivery of lysergic acid diethylamide (LSD) to John Olson, a sixteen-year-old resident of Sparta, in violation of sec. 151.07 (2), Stats.; (b) the possession of dangerous drugs in violation of sec. 151.07 (7); and (c) a marijuana offense in violation of sec. 161.275.
The defendant on his own behalf privately retained his own counsel. A preliminary hearing was demanded and was held resulting in defendant being bound over for trial. An information was filed charging defendant with these three violations.
On August 18, 1969, Philip Arneson, defendant's attorney, met with the district attorney for Monroe county. It was then agreed that the district attorney would move to dismiss the information containing the three charges and that the defendant would then plead guilty to a new information containing only one count, violation of sec. 151.07 (2), Stats. — the delivery of LSD. The district attorney at this time refused to make any commitment about a sentencing recommendation.
On August 20, 1969, defendant and his attorney, Philip Arneson, appeared in answer to a complaint and warrant alleging only one violation, i.e., of sec. 151.07 (2), Stats. (the delivery of the LSD to the minor, Olson). By his attorney, the defendant waived the reading of the complaint, waived a preliminary hearing, waived a reading of the information, and agreed to enter a plea. The defendant entered a plea of guilty at which time the following colloquy took place:
" The Court: All right, are you then prepared to plead guilty or not guilty to this charge on behalf of your client, Mr. Arneson?
" Mr. Arneson: Yes, I am, your Honor, and the plea is guilty as charged.
" The Court: Now before I accept the plea of guilty we will, of course, have to have an evidentiary hearing under the new supreme court rule, but, Robert, you understand, do you not, just exactly what are the consequences of your plea of guilty, do you not?
" Defendant: Yes.
" The Court: And that you subject yourself to a sentence on your plea of guilty to —
" Mr. Arneson: This is his first offense, your Honor.
" The Court: Yes. Well, this looks like it is not more than a fine of $5,000 or for not more than five years or both. You understand that, do you not, Robert?
" Defendant: Yes.
" The Court: Do you understand that you are entitled to a trial by jury in this court? Do you understand that?
" Defendant: Yes.
" The Court: And at this trial the state must prove that you are guilty of this charge beyond a reasonable doubt. Do you understand that?
" Defendant: Yes.
" The Court: And that this is a very heavy burden for the state to prove. You understand that?
" Defendant: Yes.
" The Court: Now, has anyone promised you anything in any respect whatsoever if you did plead guilty to this charge? Has anyone promised or threatened you in any manner if you did not plead guilty?
" Defendant: No.
" The Court: And when I ask you this question I include the district attorney's office, the police of Sparta or me or your attorney or someone on behalf of me. Do you understand that?
" The Defendant: Yes.
" The Court: Has anyone promised you or threatened you in any way?
" Defendant: No.
" The Court: Then this is strictly a voluntary move on your part, is that right?
" Defendant: Yes.
" The Court: And you do not expect or no one has told you that you will receive any harsh or preferential treatment because of this plea?
" Defendant: No."
After this questioning by the court, Gerald Donovan, Sparta's police chief, testified to establish the factual basis for the charge and the plea.
After adjudging the defendant guilty, the trial court ordered a presentence investigation and postponed the matter.
Prior to this hearing, during which the court accepted the guilty plea, there was a pretrial conference between Judge RICE, the presiding judge, Attorney Arneson, defendant's counsel, and Donald Goodman, the district attorney. The defendant did not attend this conference and no record was made of the proceedings.
Subsequently, a presentence investigation report was received by the court. This report contained no recommendation on sentencing. On October 14, 1969, the trial court sentenced the defendant to not more than two years at the Green Bay reformatory. The defendant at that time, by his attorney, Patrick Doyle, Arneson's partner, indicated that the defendant would move to withdraw his guilty plea as being involuntary, and a hearing on this motion was set for October 22, 1969.
At this hearing on October 22, 1969, the defendant by his attorney filed what was denominated "Petition to Withdraw Plea and Set Aside Sentence." The petition claimed that the defendant did not receive the sentence concession, viz., probation, which Attorney Arneson had told him Judge RICE had agreed to at the pretrial conference, if the presentence investigation did not recommend a jail sentence.
Judge RICE also presided at this hearing and heard testimony from defendant that Attorney Arneson had told him immediately after the pretrial conference that the judge would require a presentence report and that if the report recommended he not go to jail, he would not receive a prison sentence. Attorney Arneson also testified at this hearing and testified in support of this version of what he had told the defendant. Arneson also testified that he told defendant that since he was a first offender, in Arneson's opinion the defendant would be placed on probation.
After this testimony, Judge RICE made the following statement for the record.
"I do want the record to show also that I have not ever made the statement in this case or in any case that I would follow the recommendation of a presentence investigation. It is my duty to make the decision myself. It is my sworn duty to make the decision myself and I have always made it. I have said in this case and in many, many, many other cases that I would give the defendant the benefit of a presentence investigation and no further."
Donald Goodman, the district attorney, did not testify at this hearing.
By decision dated October 24, 1969, the trial court denied the motion to withdraw the guilty plea. The defendant appeals from the order denying his motion to withdraw the guilty plea.
Two, issues are presented by this appeal:
1. Did the defendant establish that his motion for leave to withdraw his guilty plea should have been granted to correct a manifest injustice?
2. Did the trial court adequately interrogate the defendant at the time of the acceptance of the defendant's guilty plea?
In State v. Reppin, this court adopted the "manifest injustice" test which provided that a defendant would be permitted to withdraw his plea of guilty if he could prove by clear and convincing evidence that his plea was made under any of the following nonexhaustive situations:
"(1) [H]e was denied the effective assistance of counsel guaranteed to him by constitution, statute, or rule;
"(2) the plea was not entered or ratified by the defendant or a person authorized to so act in his behalf;
"(3) the plea was involuntary, or was entered without knowledge of the charge or that the sentence actually imposed could be imposed; or
"(4) he did not receive the charge or sentence concessions contemplated by the plea agreement and the prosecuting attorney failed to seek or not to oppose these concessions as promised in the plea agreement."
Id. at page 385, note 2, and page 386.
Situations (3) and (4) are the critical ones in issue on this appeal.
Defendant argues that he should be permitted to withdraw his plea because under (4) "he did not receive the charge or sentence concessions contemplated by the plea agreement." He further argues even if there was no plea bargain that was violated, his trial attorney misinformed him of what the plea bargain would be and that therefore under situation (3) his plea was "entered without knowledge . . . that the sentence actually imposed could be imposed." Finally, defendant also contends that the plea was involuntary under (3) because the trial judge participated in the plea bargain.
Violation of the plea agreement.
Our first inquiry must be directed to whether the alleged plea bargain was violated. What then was the alleged plea bargain?
This court has said:
". . . If it is going to be permissible to withdraw a guilty plea because a plea agreement was violated, the first element which the accused should have to prove is that a plea agreement was actually made."
It is apparent that some sort of agreement was made between the district attorney and the defense counsel before pleading since the original three charges were reduced to only one. This could likely have been a charging concession agreement. It was not violated and there is now no allegation that it was.
Assuming there was also an agreement on sentencing, was it violated? As defendant understood the agreement, he was to receive a jail sentence unless the presentence report recommended otherwise. The report contained no recommendation either way. The trial court sentenced him to two years. He cannot assert any violation of any sentencing agreement since, according to his own understanding, there was no violation.
Trial attorney's report to defendant of plea agreement.
At this point defendant contends that his trial attorney reported incorrectly to him on the nature of the plea bargain and that this mistaken understanding led the defendant to plead guilty. Attorney Arneson claims he told the defendant that a jail sentence would not be imposed unless there was a recommendation in the presentence investigation. The defendant testified that it was his understanding if the presentence investigation recommended that he not go to jail, he wouldn't. A shorthand way to phrase these understandings would be:
Arneson: No jail unless otherwise recommended.
Defendant: Jail unless otherwise recommended.
Thus, from the defendant's viewpoint, he knew that unless the presentence report contained an affirmative recommendation that he not go to jail, a jail sentence would be imposed. The presentence report here contained no recommendation either way. According to defendant's understanding of the alleged agreement then, he knew he would receive a jail sentence. Thus, there was no violation.
Under this interpretation of the alleged agreement, the attorney general is correct in contending that the defense attorney's mistaken understanding is immaterial. We are concerned with preventing a manifest injustice to the defendant, not to his attorney. There was no manifest injustice here because from the defendant's testimony he knew what the alleged agreement was and there was no violation of it.
Trial judge's participation in plea bargaining.
Defendant was not personally present at the pretrial (preplea entering) conference held in the trial judge's chambers. The conference was attended by his trial attorney, the district attorney and the trial judge. Defendant now contends that the trial judge participated in the plea bargaining by agreeing during that conference to rely on the recommendation of the presentence report in sentencing defendant.
Unfortunately, no record was made or kept of that conference. Such record has been recommended. We do so again. If such a record were kept no question could arise as to what took place. Judge RICE emphatically denies ever making an agreement that he would rely on the presentence report recommendation. He states that the only statement made regarding the sentence was that the defendant would be given the benefit of a presentence investigation.
In any event, under defendant's version of what transpired, no plea bargain was violated. Furthermore, defendant cannot now object to Judge RICE'S hearing the motion to withdraw defendant's guilty plea on the ground that Judge RICE'S personal participation in the plea bargain was being questioned. This follows from the fact that defendant did not object to Judge RICE hearing that motion.
While we are satisfied that in this case there was no violation of a plea bargain, we are also satisfied that the trial judge here did not participate in plea bargaining. A trial judge should not participate in plea bargaining. This is true because (1) the defendant can receive the impression from the trial judge's participation in the plea discussions that he would not receive a fair trial if he went to trial before the same judge; (2) if the judge takes part in the preplea discussions, he may destroy his objectivity when it comes to determining the voluntariness of the plea when it is offered; (3) judicial participation to the extent of promising a certain sentence is inconsistent with the theory behind the use of the presentence investigation report, and (4) the defendant may feel that the risk of not going along with the disposition which is apparently desired by the judge is so great that he will be induced to plead guilty even if innocent.
American Bar Association Project on Minimum Standards for Criminal Justice — Pleas of Guilty (Approved Draft, 1968), p. 71, sec. 3.3. See also Myartt v. State (1964), 25 Wis.2d 634, 131 N.W.2d 371, certiorari denied, 382 U.S. 855, 86 Sup. Ct. 107, 15 L. Ed. 2d 93.
The vice of judicial participation in the plea bargaining is that it destroys the voluntariness of the plea.
It has been said:
"The unequal positions of the judge and the accused, one with the power to commit to prison and the other deeply concerned to avoid prison, at once raise a question of fundamental fairness. When a judge becomes a participant in plea bargaining he brings to bear the full force and majesty of his office. His awesome power to impose a substantially longer or even maximum sentence in excess of that proposed is present whether referred to or not. A defendant needs no reminder that if he rejects the proposal, stands upon his right to trial and is convicted, he faces a significantly longer sentence."
The ABA standards, it should be noted, only preclude a judge's participation in the plea bargaining process before a plea bargain or agreement has been reached. These standards indicate that the judge may be informed of the final bargain once it has been reached and before the guilty plea is formally offered:
"3.3 Responsibilities of the trial judge.
"(a) The trial judge should not participate in plea discussions.
"(b) If a tentative plea agreement has been reached which contemplates entry of a plea of guilty or nolo contendere in the expectation that other charges before that court will be dismissed or that sentence concessions will be granted, upon request of the parties the trial judge may permit the disclosure to him of the tentative agreement and the reasons therefor in advance of the time for tender of the plea. He may then indicate to the prosecuting attorney and defense counsel whether he will concur in the proposed disposition if the information in the presentence report is consistent with the representations made to him . . . ."
American Bar Association Project, supra, footnote 6, at pages 11, 12, sec. 3.3.
This limited action by the trial judge is allowed on the theory that a greater degree of certainty that the bargain will be accepted is necessary for the operation of the system.
Adequacy of trial court's plea-taking record.
As a basis for establishing an abuse of discretion on the part of the trial court in denying defendant's motion to withdraw his guilty plea, defendant argues that the record made for the acceptance of the guilty plea was insufficient because the trial judge did not follow the mandates of Boykin v. Alabama, as interpreted by this court in Ernst v. State.
Since the defendant raises this objection for the first time on this appeal we are not obliged to consider this ground. This is particularly true in the instant case for the reason that the defendant filed his motion in the trial court on October 22, 1969, and his unraised argument is based upon Boykin, which was decided on June 2, 1969, and applied to all pleas taken subsequent to that date.
From the record it is clear that the trial court was aware of the United States Supreme Court decisions (presumably Boykin and McCarthy) requiring the trial court to make a record of its own to satisfy itself that the plea is made voluntarily and understandingly. It apparently took the plea with these requirements in mind. For that reason we consider defendant's objection, although he has no right to raise it here. It is obvious that since this plea was taken subsequent to June 2, 1969, Boykin did apply. Important to this case is the fact that this court has very recently considered Boykin as having made McCarthy binding upon the states as a matter of due process under the federal constitution. The significance of McCarthy was explained in Ernst.
"In McCarthy the court held that Rule 11 is not complied with unless the judge personally questions the defendant and exposes the defendant's state of mind on the record. The record of the judge's interrogation must reveal that the plea was voluntary and that the defendant understood both the charge and its consequences.
". . . the record must also indicate `that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty.' . . ."
Ernst v. State, supra, footnote 11, at pages 672, 673.
In the instant case the trial court did, prior to the acceptance of the plea, personally address the defendant many times. The defendant indicated that the plea was a voluntary move on his part. The defendant also in response to the judge's questioning, expressed understanding of the consequences of his plea both in terms of the punishment to which he could be subjected and in terms of the waiver of such constitutional rights as trial by jury and the right to require the state to prove his guilt beyond a reasonable doubt.
In McCarthy the court stated that the plea taking "cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts." But McCarthy makes it clear that the record made by the trial court will be adequate if the facts of the crime as related to the applicable law are brought out in the record and this need not be by specific questions and answers addressed by the court to the defendant, but, as here, may be supplied by questions and answers directed at other witnesses such as the policeman. We are satisfied that the record presented here does reveal that the defendant understood the charge and that the requirements of Boykin, McCarthy, and, indeed, Federal Rule 11 were all met.
McCarthy, supra, footnote 13, at page 466.
By the Court. — Order affirmed.