Armstrong v. State, 202

• Decision Date: 30 June 1972
• Docket Number: No. 202,202
• Parties: Lawrence ARMSTRONG, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. State
• Court: Wisconsin Supreme Court

Page 357

198 N.W.2d 357

55 Wis.2d 282

Lawrence ARMSTRONG, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

State No. 202.

Supreme Court of Wisconsin.

June 30, 1972.

The defendant, Lawrence Joseph Armstrong, was charged with burglarizing the Left Guard Charcoal House on February 6, 1971, and Kyle's Garage on February 5, 1971. The defendant and an accomplice were apprehended while in the act of burglarizing the Left Guard restaurant. At the time of the apprehension defendant was attempting to open the safe with a lighted acetylene torch. Investigation revealed that the torch had been taken from Kyle's Garage a day earlier.

The defendant made an initial appearance before County Judge William L. Buenzli on February 8, 1971. Counsel was appointed and a preliminary examination was set for February 11. The preliminary examination was not held until March 1, 1971. Prior to the commencement of that hearing, the defendant, by court-appointed counsel, objected to the preliminary examination because, in violation of sec. 970.03(2), Stats., it was held more than ten days after the initial appearance, while the defendant was in custody. The magistrate denied the defendant's motion, proceeded to find probable cause, and bound Armstrong over to the circuit court for trial.

The defendant was arraigned on March 11, 1971, before Circuit Judge W. L. Jackman. He waived the reading of the information and pleaded guilty to both counts. After a colloquy between the court and the defendant, which included pointing out to Armstrong that he could be sentenced to ten years on each count, the pleas of guilty were accepted, and the defendant was found guilty on both counts. Following a presentence investigation, the trial judge, in accordance with the state's recommendation, sentenced the defendant to two concurrent terms to be served at the state prison. The defendant, by counsel appointed in this court, brought an order to show cause why the judgment and sentence should not be set aside. The motion was in fact a motion to withdraw the pleas of guilty. The motion was denied, and an order entered November 12, 1971. The writ of error is to review the order of that date.

Thomas W. Bertz, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

HEFFERNAN, Justice.

Defendant asserts that the conviction was a nullity because the court did not have personal jurisdiction over the defendant. His counsel correctly points out that the preliminary examination was not timely held. He is also correct when he states that the failure to hold the preliminary examination within the time provided by statute results in the loss of personal jurisdiction over the defendant. Crummel v. State (1970), 46 Wis.2d 348, 174 N.W.2d 517; Logan v. State (1969), 43 Wis.2d 128, 168 N.W.2d 171.

It is apparent that where, as here, a proper objection has been made to the holding of the preliminary, the magistrate was without jurisdiction to proceed further. Although jeopardy had not attached and, therefore, Armstrong could have been immediately recharged, it would have been appropriate, at this juncture, for the magistrate to dismiss the complaint. The defendant, however, did not stand on his objection at the time of arraignment. Since the record shows that defendant and his counsel asserted the lack of personal jurisdiction at the time the preliminary examination was called, it is apparent that the subsequent pleas to the information constituted a knowledgeable waiver of the previously asserted defense of lack of personal jurisdiction. A defense based on lack of personal jurisdiction is waived by pleading to the information. Belcher v. State (1969), 42 Wis.2d 299, 166 N.W.2d 211; Hanson v. State (1971), 52 Wis.2d 396, 190 N.W.2d 129. If the objection made prior to the commencement of the preliminary examination was to be preserved, it should have been reasserted at the time of arraignment.

Additionally, the defendant claims that the guilty pleas could not constitute a waiver because they were, in fact, coerced by the circumstances of the plea bargain. The argument carries with it the contention that the pleas themselves were therefore the result of a manifest injustice and should have been set aside by the trial court.

The defendant asserts that, prior to arraignment, the assistant district attorney informed his counsel that, if the defendant pleaded not guilty, was tried, and found guilty, a sentence of ten years on each count would be recommended, with the sentences to run consecutively. Prior to the arraignment, however, defendant's counsel and the state reached the agreement that the recommendation would be for a sentence of six years on each count, with the sentences to run concurrently. The guilty pleas were made. The prosecutor made the recommendation bargained for, and the circuit judge accepted his recommendation. These facts were fully set forth in the postconviction motion at the trial level.

The trial court made the finding that the pleas were voluntary and uncoerced. We agree with the trial court's conclusion that the pleas were not coerced merely because the district attorney's office indicated that a greater penalty would be sought in the event the case were tried. What the defendant really asserts is that, any time there is an intimation that a more severe penalty will be recommended after trial than will be recommended in the case of a plea, the plea is ipso facto coerced.

We think this position mistakes the nature of the agreement reached by defense counsel and a...