Spanbauer v. Burke

Decision Date28 December 1966
Docket NumberNo. 15645.,15645.
PartiesDavid Frank SPANBAUER, Petitioner-Appellant, v. John C. BURKE, Warden, Wisconsin State Prison, Respondent-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

L. C. Hammond, Jr., Milwaukee, Wis., for appellant.

Bronson C. La Follette, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, Wis., for appellee.

Before HASTINGS, Chief Judge, and KNOCH and KILEY, Circuit Judges.

HASTINGS, Chief Judge.

David Frank Spanbauer has appealed from an order of the district court, entered after a full evidentiary hearing, denying his petition for a writ of habeas corpus.

On February 29, 1960, Spanbauer, who waived counsel at his arraignment and later at time of trial, was convicted in a Wisconsin state court following his pleas of guilty to ten separate counts of an information charging him with armed robbery (two counts), rape, conduct regardless of human life, burglary, theft, attempted rape and armed burglary (three counts), all committed within a period of three to five weeks.

While Spanbauer pleaded guilty, a hearing was held, witnesses appeared, testimony was taken and copies of statements and confessions by Spanbauer to the police were admitted into evidence. At the end of the hearing, Spanbauer indicated that the testimony taken was a true and correct account of the various crimes contained in the information.

Spanbauer was sentenced to an aggregate of 70 years imprisonment for all but the sex crimes. Sentencing on the sex crimes was postponed until the Wisconsin State Department of Public Welfare, in whose custody Spanbauer was placed for examination, reported whether he was a fit subject for commitment for treatment at the Wisconsin sex deviate facility pursuant to sec. 959.15, Wis. Stats. On May 3, 1960, following that report, Spanbauer was committed to the sex deviate facility for treatment.

On appeal, it is argued that Spanbauer's waiver of counsel was ineffectual because the trial court failed to advise him of the possibility of appointed counsel, of the range of allowable punishments and of possible defenses and mitigating circumstances. It is also urged that Spanbauer was deprived of his right to counsel at the time of sentencing, when Spanbauer gave some indication to a prosecuting attorney that he desired counsel.

On February 15, 1960, Spanbauer was taken into police custody in Sheboygan, Wisconsin on charges of carrying a concealed weapon and petty larceny. Spanbauer admitted committing a burglary in Wauwatosa, Wisconsin, and two police officers from that city took custody of Spanbauer on February 18 and returned him to Wauwatosa.

These detectives testified that they advised Spanbauer of his right not to talk and of his right to an attorney, either retained or appointed.

On February 19, Spanbauer was questioned by police officers. He was questioned again the following day after bond had been set. In the afternoon of February 20, after having been moved to the Milwaukee County Jail, he gave a voluntary statement confessing crimes of which he had not been suspected. On February 21, he was questioned again by other officers, and gave two further statements.

Brown County district attorney Grant, the prosecuting attorney, testified he had a conversation with Spanbauer in his cell on February 24, 1960, that he explained to him procedures relating to arraignment and preliminary hearing; the right of counsel, including appointment of counsel; the plea of not guilty; and at least some of the charges. Grant further indicated to Spanbauer that he was likely to get a "good jolt" or sentence, although he apparently did not indicate the penalties for specific offenses.

On February 24, Spanbauer waived preliminary examination and appointment of counsel before the municipal judge as magistrate at Green Bay, and pleaded guilty to three counts of the information. The colloquy relating to appointment of counsel is set out in the margin.1

Thereafter, the various charges against Spanbauer were consolidated for trial in one place, the crimes having occurred in different counties. On February 29, in the Municipal Court for Brown County, Spanbauer waived preliminary examination on seven additional counts of the information, pleaded guilty to each of the ten counts and waived counsel on the seven additional counts. After a hearing, Spanbauer was convicted and sentenced on eight counts.

On May 3, when Spanbauer was returned to court for sentencing following the evaluation under the sex deviate law, Spanbauer informed Grant that he desired counsel to represent him. Although there is conflict in the evidence in the record, it appears that this request was not transmitted to the judge, but that Spanbauer was told to make the request to the judge himself, which he did not do.

Spanbauer's petition for a writ of habeas corpus to the Wisconsin Supreme Court was denied without opinion on September 11, 1964.

Following a habeas corpus hearing, the federal district court found that there had been explained to Spanbauer the detailed procedures relating to appointment of counsel and the fact that counsel would be appointed for him if he were indigent.

The record discloses that as a young adolescent, Spanbauer was arrested four times for purse snatching, burglary, disorderly conduct and window peeping. Entering the Navy at age 17, he was given a bad conduct discharge for repeated AWOL. Psychiatric treatment was recommended. Shortly after his discharge from the Navy, he committed the criminal acts for which he was convicted.

Spanbauer's mental examination reports disclosed that he was socially deviant in a fashion for which mental treatment was deemed appropriate. He was described as "sociopathic", "very disturbed", "extremely dangerous" and characterized as being impulsive, having poor judgment, being severely withdrawn and having a great potential for "an acute psychotic reaction." By and large, his thinking and intelligence were not found to be impaired. Without further detailing the impressions and findings in the reports, it is sufficient to state that they are of such a nature as to raise the question of Spanbauer's general competency.

Although the federal district court did not discuss in detail the question of Spanbauer's competency with respect to his waiver of counsel, it found his mental capacity and emotional state were not so impaired as to render his waiver of counsel invalid.

Although the record is not completely clear as to exactly what Spanbauer was told prior to his trial, for purposes of appeal, we shall assume that he was not informed of the range of allowable punishments and of possible defenses or mitigating circumstances.

There is no question that under the Sixth Amendment, Spanbauer was entitled to counsel in the state courts. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Furthermore, state defendants are guaranteed assistance of counsel under the Fourteenth Amendment, unless it is intelligently and understandingly waived. Carnley v. Cochran, 369 U.S. 506, 512-513, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). Waiver of counsel standards as articulated in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), have been said to be applicable to asserted waivers of the right to counsel in state criminal procedings. Carnley v. Cochran, supra, at 515, 82 S.Ct. 884.

In Zerbst, the Supreme Court stated:

"The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances, surrounding that case, including the background, experience, and conduct of the accused." Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023.

In Carnley the Court clarified what must be shown of record on the question of waiver under a petition for a writ of habeas corpus:

"The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver." Carnley, supra, 369 U.S. at 516, 82 S.Ct. at 890.

Thus, a federal court in coming to a decision after a hearing on a writ of habeas corpus alleging invalid waiver of counsel is, at the very least, to make a determination whether the accused intelligently and understandingly rejected counsel by applying the ad hoc test of Zerbst.

But we are faced with the further question whether the failure of the district court to enforce federal waiver standards as found in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), may lead to an undermining of the rights of indigent defendants to appointment of counsel as expressed in Gideon, supra.

In Von Moltke, the Supreme Court set out federal standards for the duty of a trial judge in determining whether a waiver of counsel has been intelligent and competent.

"To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge\'s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused\'s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered." Von Moltke, supra, at 723-724, 68 S.Ct. at 323.

It is urged upon us that these standards fully apply in the determination of a state prisoner's...

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