State ex rel. Warren v. County Court of Shawano-Menominee County

• Decision Date: 04 May 1972
• Docket Number: SHAWANO-MENOMINEE,No. S,S
• Citation: 54 Wis.2d 613,197 N.W.2d 1
• Parties: STATE of Wisconsin ex rel. Robert W. WARREN, Attorney General, Petitioner, v. The COUNTY COURT OFCOUNTY, Wisconsin, Branch I thereof, and Honorable M. G. Eberlein, County Judge, Respondents. tate 219.
• Court: Wisconsin Supreme Court

Page 1

197 N.W.2d 1

54 Wis.2d 613

STATE of Wisconsin ex rel. Robert W. WARREN, Attorney General, Petitioner, v. The COUNTY COURT OF SHAWANO-MENOMINEE COUNTY, Wisconsin Branch I thereof, and Honorable M. G. Eberlein County Judge, Respondents.

No. State 219.

Supreme Court of Wisconsin.

May 4, 1972.

On December 29, 1971, the petitioner Robert W. Warren, Attorney General, filed a petition for a writ of certiorari on the ground the Honorable M. G. Eberlein, County Judge, Branch I, Shawano-Menominee County, was without jurisdiction when on December 7th, 1970, he amended a judgment of sentencing entered on March 14, 1958, by reducing the sentence of one Robbert Peters. A hearing was had and the writ issued, requiring a return of the record. The record was returned and briefs have been filed for the petitioner by Robert W. Warren, Attorney General, and for the respondents by Douglas D. Winter, attorney and by County Judge M. G. Eberlein, pro se.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for petitioner.

Douglas Winter, Shawano, for respondents.

HALLOWS, Chief Justice.

It appears from the return that on March 14, 1958, Judge C. B. Dillett, the then county judge of Shawano county, sentenced Robert Peters for a term not exceeding ten years for forceful robbery, five years for causing great bodily harm, and thirty years for forceful rape. These sentences were the maximum for the crimes. All sentences were ordered to run consecutively which made a total period of incarceration of not more than 45 years. The record discloses other uncharged crimes allegedly committed by Robert Peters and other circumstances which at the time caused the judge to pronounce the sentences he did. Twelve years later, Robert Peters filed in the Shawano County Court a motion for a reconsideration of the sentence.

The respondent County Judge M. G. Eberlein appointed Douglas D. Winter as counsel for Robert Peters and conducted a hearing on December 7, 1970. After the hearing, the respondent Judge Eberlein modified the sentence pronounced by his predecessor in office by reducing the 30-year sentence for rape to 20 years and changing the three sentences from being consecutive to concurrent. The effect of the changes reduced the total time of imprisonment by 25 years. He also recommended to the parole board that Peters be paroled in 1971. Peters was 18 years old when he was convicted of the crimes. At the time of resentencing, he was 31 years of age and had served somewhere between 12 and 13 years of his sentences. The record shows he had been paroled several times but was returned to prison for violations. While Judge Eberlein gives his reasons for reducing the sentences, we do not reach the question of whether the three consecutive maximum sentences constituted cruel and unusual punishment on the facts.

The writ of certiorari is discretionary with this court. No good cause has been shown why over a year has been allowed to pass before the petitioner sought the aid of this court. The resentencing order might have been appealed within the time allowed for such an appeal but was not. Matters of this kind should be promptly reviewed if they are to be reviewed at all. We are not inclined to entertain the writ as a basis for reviewing what should have been brought up on appeal.

This view requires the dismissal or quashing of the writ but we deem it advisable because of the views expressed in the briefs to comment on the case of Hayes v. State (1970), 46 Wis.2d 93, 175 N.W.2d 625. The petitioner views Hayes as holding a trial court has no jurisdiction or power to reconsider sentencing after 90 days from the date of the original sentence. On this theory, it is claimed the resentencing by the court below is void. The respondent urges that Hayes should no longer be the law and is in conflict with the post-conviction remedy provided by sec. 974.06, Stats. Both views are in error. Hayes recognized the inherent power in a trial court to review its sentencing. The 90- day limitation is not jurisdictional but regulatory upon the exercise of that power. Hayes deals with the ordinary case of a rehearing on resentencing or a reconsideration thereof while the matter was fresh. Such an application is in the nature of reconsideration on the merits. For this reason a short period of time was provided within which the remedy would normally be used.

The respondent attempts to justify his jurisdiction on the ground the post-conviction remedy of sec. 974.06, Stats., in effect abrogates Hayes and any sentence may be reviewed without a time limit when it is claimed the sentence violates constitutional guarantees. Hayes was decided in the light of the application of sec. 974.06 providing a post-conviction remedy. That section has no time limitation within which the remedy may be sought, but the section is restricted to sentences imposed in violation of the United States Constitution or the constitution or laws of this state, or where the court is without jurisdiction to impose the sentence, or the sentence was in excess of the maximum authorized by law or as otherwise subject to collateral attack. Sentences in excess of the maximum authorized by law will seldom be the subject of this remedy because sec. 973.13 invalidates the excess of a sentence and provides that the sentence 'shall stand commuted without further proceedings.'

Thus sec. 974.06, Stats., is not a remedy for an ordinary rehearing or reconsideration of sentencing on its merits and while under Hayes constitutional and jurisdictional questions as well as the appropriateness of the sentence may be reviewed, only the constitutional or jurisdictional questions can be raised by the remedy afforded in sec. 974.06. Recently in Nelson v. State (1972), 54 Wis.2d 489, 195 N.W.2d 629, and Peterson v. State (1972), 54 Wis.2d 370, 195 N.W.2d 837, this court dealt with the trial and appellate procedure of post-conviction petitions under sec. 974.06.

While there is doubt the statutory remedy provided in sec. 974.06, Stats., would apply to this case because the posecution predated July 1, 1970, we considered in Zdiarstek v. State (1972), 53 Wis.2d 420, 424, 192 N.W.2d 833, the merits of a sec. 974.06 motion although it dealt with a pre-July 1, 1970, prosecution. In the aid of uniformity of post-conviction remedies, we think a sec. 974.06 remedy may be used to review sentencing and convictions involving constitutional issues regardless of the date of prosecution.

No claim is made in this case that the court presided over by Hon. C. B. Dillett was without jurisdiction in imposing the original sentence. What is claimed is that the original sentence violated the constitution because Robert Peters was not afforded counsel at the trial and the sentences were 'cruel and inhuman.' These are not valid grounds because: (1) The record shows Peters was advised of his rights by Judge Dillett and that Peters waived counsel, and (2) mere excessiveness of a sentence, judged by today's standards, cannot be applied to sentences which have stood for 12 years. If this were not so, all sentences of convicts now incarcerated could be re-examined and changed by trial courts according to the individual standards of successor judges. While strides are being made in this state and in other states to develop guidelines for uniform sentencing and treatment of criminals, trial judges should not replow the criminal field in order to apply current concepts to old sentences.

But the respondent claims the sentence was 'cruel and inhuman treatment' because of excessiveness. Both the federal constitution, Eighth Amendment, and the Wisconsin Constitution, Article I, Section 6, prohibit cruel and unusual punishments. In McCleary v. State (1971), 49 Wis.2d 263, 182 N.W.2d 512, it was claimed a sentence less than the maximum raised the constitutional question on the ground of denial of equal protection of the laws and its excessiveness amounted to cruel and unusual punishment. This court viewed the issue as not involving a constitutional issue but as raising a question of abuse of the trial court's sentencing discretion. McCleary, however, did not hold that the excessiveness of a sentence within the maximum or of concurrent sentences, although within the maximums, cannot reach constitutional proportions. The concurring opinion pointed out that excessiveness of a sentence may reach constitutional proportions and Weems v. United States (1910), 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793, was cited for the proposition that excessiveness may constitute cruel and unusual punishment. In Kasper v. Brittain (6th Cir., 1957), 245 F.2d 92, 96 it was said, 'Punishment is not 'cruel and unusual,' unless it is so greatly disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice,' citing Weems and United States v. Rosenberg (2d Cir., 1952), 195 F.2d 583, cert. den. 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652. Substantially this test was adopted in State v. Seraphine (1954), 266 Wis. 118, 62 N.W.2d 403, for a fine and was applied to punishment in State v. Pratt (1967), 36 Wis.2d 312, 153 N.W.2d 18, and followed in State v. Morales (1971), 51 Wis.2d 650, 187 N.W.2d 841.

Just recently, our sister state of Michigan in reversing itself said it will now review sentences for excessiveness and held that a 9 and 1/2 to 10-year sentence for possession of marijuana violated the Eighth Amendment and the Michigan Constitution against cruel and unusual punishment. People v. Sinclair (1972), Mich., 194 N.W.2d 878. In People v. Lorentzen (1972), Mich., 194 N.W.2d 827, the Michigan court held a statute, providing for a mandatory minimum sentence of 20 years for sale of marijuana, unconstitutional as cruel and unusual punishment when applied to a first offender.

The standards of what constitutes cruel and unusual punishment vary in the progress of human society in its enlightenment 'by a...