Belcher v. State

• Decision Date: 01 April 1969
• Docket Number: Nos. 42,111,s. 42
• Parties: John BELCHER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. State
• Court: Wisconsin Supreme Court

Page 211

166 N.W.2d 211

42 Wis.2d 299

John BELCHER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

State Nos. 42, 111.

Supreme Court of Wisconsin.

April 1, 1969.

Stanley F. Hack, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Milwaukee Co., Harold B. Jackson, Jr., Asst. Dist. Atty., Milwaukee, for defendant in error.

WILKIE, Justice.

The first issue presented on this review is the significance of (1) defendant's efforts to gain the assistance of the court on his own initial motions in the trial court, and (2) his pleas of not guilty and guilty, all made or entered in the trial court without making and preserving objections to the court's personal jurisdiction over him.

Defendant contends that when the United States attorney for the Eastern district was requested to issue a fugitive warrant there were not on file in the Milwaukee courts the requisite complaints and accompanying warrants charging this defendant with these two crimes. He further contends that he objected to the jurisdiction of the Milwaukee circuit court when he was returned from California.

Notwithstanding these contentions, the fact is that the defendant submitted to the jurisdiction of the court by (1) making various motions to the trial court prior to pleading, and (2) twice pleading to the charges contained in the informations, all without making and preserving an objection to the trial court's jurisdiction over his person.

Jurisdiction over the person can be conferred by consent of the defendant, or a defense based on the lack of personal jurisdiction can be waived by pleading to the information without making proper objection. In State ex rel. La Follette v. Raskin, ² this court stated that, '* * * (a)lthough jurisdiction of subject matter is derived from law and cannot be waived nor conferred by consent, this is not true of jurisdiction over the person.' ³

In Raskin, this court was dealing with the timeliness of an objection to the sufficiency of a warrant being challenged on the grounds of State ex rel. White v. Simpson. ⁴ It was held that the motion to dismiss on White ground was not timely when it was 'made for the first time only after the defendant had been arraigned, entered a plea, and had a jury trial which resulted in a mistrial.' ⁵

Relying upon Kushman v. State ex rel. Panzer, ⁶ and State ex erl. Wojtycski v. Hanley, ⁷ this court stated that 'a defendant who has appeared in court with counsel without contesting the validity of the arrest, has submitted to the jurisdiction of the court and waived his right to attack the arrest warrant.' ⁸

In Kushman the court stated:

'* * * Defendant entered a plea of not guilty, demanded a jury trial, and the trial proceeded without any challenge as to the sufficiency of the complaint. If it was insufficient for any reason it should have been challenged before proceeding with the trial. * * * (Citing the forerunner of sec. 955.09, Stats.)' ⁹

Sec. 955.09(3), Stats., provides as follows:

'(3) Defenses and objections based on defects in the institution of the proceedings, insufficiency of the information or indictment, invalidity in whole or in part of the statute on which the prosecution is founded, or the use of illegal means to secure evidence (except confessions) must be raised before trial by motion or be deemed waived. * * *'

In Hanley, the court stated that, '(i)n entering his plea in abatement, (comparable to a motion to dismiss under the present sec. 955.09(1), Stats.) relator acknowledged and submitted to the jurisdiction of the municipal court.' ¹⁰

The opinion further provided that:

'At the time the writ was filed in the instant case, relator had appeared in the municipal court and entered a plea of abatement, and upon the overruling thereof, a plea of not guilty. Jurisdiction to try an offender for a crime of which the court has jurisdiction is obtained by his appearance in court, and by pleading guilty or not guilty, jurisdiction of his person is conferred on the court.' ¹¹

When the defendant entered his plea of not guilty on November 21, 1963, and his plea of guilty after four days of trial he did not object to the trial court's jurisdiction over his person.

By pleading guilty to the charges defendant did not necessarily waive his right to jurisdictional defenses. In Hawkins v. State, ¹² this court stated:

'It appears to be the general rule, that a plea of guilty, voluntarily and understandingly made, constitutes a waiver of non-jurisdictional defects and defenses, including claims of violation of constitutional rights prior to the plea. As the plea itself provides the basis for conviction no evidence need be introduced, and the right to a trial free of evidence illegally obtained is forfeited.' ¹³

Also, in Pillsbury v. State, ¹⁴ this court said that, '* * * (o)ne cannot waive lack of jurisdiction of the subject matter or confer it on a court by consent.' ¹⁵ The opinion went on to define 'subject matter jurisdiction' as follows:

'* * * Criminal jurisdiction of the subject matter is a power of a court to inquire into the charge of the crime, to apply the law, and to declare the punishment in the court of a judicial proceeding and is conferred by law.' ¹⁶

But here as in Raskin the defendant submitted to the personal jurisdiction of the court by his initial plea and his later plea, both made without making or reserving his objection to the court's personal jurisdiction.

In Raskin, this court also noted that a defendant submits to the personal jurisdiction of the court if the defendant himself invokes that jurisdiction by asking for affirmative assistance of that court. ¹⁷

The record in the present case reveals that when defendant appeared in court on November 14, 1963, his counsel made two motions: (1) Counsel moved for dismissal of the informations and remand to the county court for a preliminary examination; and (2) counsel moved for a reduction in the amount of bail. In making the motion for reduction in bail, counsel indicated to the court that there was no complaint or warrant on file to indicate who made the accusations against defendant which would justify such a high bail. However, the record does not reveal that on this date counsel in any way challenged the jurisdiction of the trial court over the person of defendant.

We conclude that the defendant submitted to the jurisdiction of the trial court over his person and waived any objection he may have had thereto.

As to the defendant's contentions about the missing complaints and warrants, the trial court found that on October 12, 1963, a member of the Wauwatosa police department appeared at the office of the district attorney of Milwaukee county and signed two complaints against defendant; that following the signing of the complaints, the warrants were issued; that the two complaints remained in the office of the clerk of courts and the warrants were delivered to and taken by Milwaukee county law enforcement officers; that thereafter application was made to the United States district court for the Eastern district of Wisconsin for issuance of a fugitive warrant which was issued; that a short time later, the defendant, his wife, and one other co-defendant were taken into custody by federal officers in North Hollywood, California.

The trial court further found that the three defendants waived extradition and were returned to Milwaukee; that the warrants were returned to the office of the district attorney of Milwaukee county by the officers in whose hands they had been placed on or about October 12, 1963; that these warrants remained in the office of the district attorney until sometime in August, 1967, at which time they were placed in defendant's court file. The trial court also found that the criminal complaints supporting the warrants had found their way into the district attorney's office and were not placed in defendant's court file until August of 1967.

None of these findings is against the great weight and clear preponderance of the evidence. Because the defendant submitted to the jurisdiction of the court we do not reach the question of what effect, if any, the temporary misplacement of the complaints and related warrants may have had.

The second issue presented on this review is whether the defendant's plea of guilty was voluntarily and understandingly made.

In State v. Reppin, ¹⁸ this court adopted the 'manifest injustice' test as set forth in the American Bar Association Project on Minimum Standards for Criminal Justice--Pleas of Guilty. ¹⁹ Those standards provide that the court should permit a guilty plea to be withdrawn whenever the defendant proves that: '(3) the plea was involuntary * * *.' Defendant contends that his plea was changed to guilty because of fear and not out of free choice, i.e., that it was involuntary. He claims that the only reason he pleaded guilty was to save his wife from a long prison term.

As previously indicated, the record in this matter reveals that the defendant did not initially plead guilty to the offenses charged. On November 21, 1963, defendant originally pleaded not guilty. Not until four days of trial had elapsed in May of 1964 did the defendant request leave to change his plea to guilty. The actual circumstances of that change of plea are shown dramatically by the actual trial record. During the testimony of one of the state's witnesses, Attorney Dominic Frinzi, representing defendant, requested a fiveminute conference because of a 'new development.' After this conference the following occurred:

'MR. FRINZI: Your Honor, before the jury returns, on behalf of the defendant John Belcher, at this time I'd like to beg leave of the court to withdraw our plea of not guilty on both counts, the robbery armed, and the attempted murder; and at this time we are prepared to enter a plea of guilty on both counts.

'I'd like to also ask the court whether the court wants the record to...