No. State 115.
Argued April 12, 1968. —
Decided May 7, 1968.
ERROR to review an order of the county court of Brown county: JAMES W. BYERS, Judge. Affirmed.
For the plaintiff in error there was a brief by Bittner, Petitjean, Greenwood Hinkfuss of Green Bay, and oral argument by Robert L. Bittner.
For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, and William A. Platz, assistant attorney general.
This action was commenced by complaint and warrant on January 5, 1967. The information charged the defendant with seven counts of burglary and with one count of operating a motor vehicle without the owner's consent. On January 24, 1967, three counts of burglary and the count with respect to operating the motor vehicle without consent were dismissed with prejudice on motion of the state. Thereupon, with the advice and assistance of counsel, the defendant pleaded guilty to the remaining four counts of burglary and was sentenced to concurrent terms of five years each by the court.
Defendant Vieau, by his counsel, applied to the county court for permission to withdraw his pleas of guilty. He alleged that at the time of his pleas he was ill-advised as to the strength of the state's case, having waived preliminary examination, that he did not realize that he had in his possession evidence to rebut the circumstantial evidence upon which the state's case was based, that he was led to believe erroneously that the prosecuting attorney and the judge had a vindictive attitude toward him, and that he could only expect harsh treatment if he were found guilty after a trial.
The trial court denied his motion on October 10, 1967, whereupon this writ of error was obtained.
The above grounds for withdrawal of the pleas are abandoned here. The defendant's sole contention before the supreme court is that the plea was entered without knowledge that the sentence actually imposed could be imposed. In State v. Reppin the court adopted the standards relating to pleas of guilty issued by the American Bar Association Project on Minimum Standards for Criminal Justice according to which a defendant should be allowed to withdraw his plea of guilty whenever "withdrawal is necessary to correct a manifest injustice." As Reppin indicates, the "manifest injustice" test is adopted from Rule 32 (d) of the Federal Rules of Criminal Procedure. The ground alleged by the defendant is one of the four illustrations of "manifest injustice" to appear in the draft of the American Bar Association Project, concerning which it is stated in Reppin that a court would abuse its discretion if it denied a request to withdraw a guilty plea when any of the four grounds were proven.
Id. at page 386.
The defendant stops short of the direct allegation that he lacked knowledge that the sentence actually imposed could be imposed but argues that as a condition precedent to the acceptance of a plea of guilty, courts should be required to impart a full explanation of the consequences of such a plea. He asserts that Rule 11 of the Federal Rules of Criminal Procedure requires that federal courts must inform the accused of the consequences of a guilty plea even though he is represented by counsel. It is undisputed that the trial court gave no explanation to the defendant concerning the consequences of his plea.
". . . Courts have the right to assume in such a situation that counsel has fulfilled his duty of proper representation by fully explaining to the accused the nature of the offense charged, the range of penalties, and possible defenses thereto, and satisfying himself that the accused understands such explanations, before permitting the accused to authorize the entry of a plea of guilty. There is no allegation in defendant's motion that this was not done.
"We deem it inadvisable to lay down a rule that trial courts must, in every case, where an accused is represented by counsel at time of entering a plea, before accepting the plea interrogate defendant to make sure that the defendant has understandingly and intelligently entered the plea. However, we recommend that such practice be adopted."
Id. at pages 631 and 632.
In State v. Koerner the court was of the opinion that when competent counsel is appointed prior to arraignment, a presumption arises that the defendant has been informed of the nature of the offense he is charged with, the range of punishment, the possible defenses, and that he has understandingly considered these factors with the help of counsel. Such a presumption, the court continued, can be overcome only by a clear showing to the contrary.
We see no reason to depart from the precedent established by the holdings in Strickland and Koerner in light of the later decision in the Reppin Case. Reppin makes it clear that the burden of proof is on the defendant to show by clear and convincing evidence that a manifest injustice has occurred. Where the record shows that the defendant was not informed of the range of punishment but contains no indication that he was, in fact, ignorant on the subject, the proof falls far short of showing that manifest injustice has occurred. The record herein establishes that the defendant was previously convicted and sentenced under the burglary statute. It also indicates the state's motion to dismiss four counts was the result of negotiation by defense counsel and the state.
The exception to this rule is that when the record shows there has been a failure to provide counsel, it becomes the duty of the state to show the defendant was not prejudiced thereby and that no constitutional right was infringed as a result. See Curry v. State (1967), 36 Wis.2d 225, 229, 152 N.W.2d 906.
We also note that the sole ground presented by the defendant on appeal was not presented to the trial court.
We conclude that the defendant entered his pleas of guilty freely, voluntarily, and understandingly with the advice and assistance of competent legal counsel.
By the Court. — Order affirmed.