Bergenthal v. State

Decision Date02 June 1976
Docket NumberNo. 75--252--CR,75--252--CR
Citation72 Wis.2d 740,242 N.W.2d 199
PartiesAugust K. BERGENTHAL, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.
CourtWisconsin Supreme Court

Dominic S. Amato, Milwaukee, argued, for plaintiff in error; John A. Fiorenza and Teper, Fiorenza, Weiss & Teper, S.C., Milwaukee, on briefs.

William L. Gansner, Asst. Atty. Gen., argued, for defendant in error; Bronson C. La Follette, Atty. Gen., on brief.

CONNOR T. HANSEN, Justice.

Defendant was convicted of one count of first-degree murder, and one count of entdangering safety by conduct regardless of human life. The judgment of conviction and sentence was affirmed by this court, upon defendant's appeal, in State v. Bergenthal (1970), 47 Wis.2d 668, 178 N.W.2d 16.

Subsequently, defendant instituted other proceedings, including appeal of this court's decision to the United States Supreme Court, certiorari denied, 402 U.S. 972, 91 S.Ct. 1657, 29 L.Ed.2d 136. A petition for a writ of habeas corpus was denied by the federal district court, Bergenthal v. Cady (E.D.Wis.1971), 326 F.Supp. 848, and that decision was affirmed by the court of appeals, Bergenthal v. Cady (7th Cir. 1972), 466 F.2d 635, certiorari denied, 409 U.S. 1109, 93 S.Ct. 913, 34 L.Ed.2d 690. Application for executive clemency was made to the governor, at which time defendant's life sentence was commuted to 50 years. The five-year consecutive sentence on the second count was commuted to run concurrently with the sentence on the first count.

On April 14, 1969, defendant was convicted of the murder of Russell Wirth. He was also convicted of endangering the safety of another by conduct regardless of human life. This conviction is based upon a gun shot wound received by Mary Wirth, wife of Russell. Both incidents occurred in the Wirth residence. Defendant pled not guilty and not guilty by reason of insanity. A bifurcated trial was held. The guilt phase of the trial consumed twelve day sessions and six night sessions. The sanity phase of the trial lasted seven days and included five night sessions. During the guilt phase of the trial the defendant testified in his own behalf. He testified as to the purchase of the gun, statements he made at the time of the fatal shooting at the Wirth home and described the shot being fired. State v. Bergenthal, supra.

Since the trial and subsequent appeal, Bergenthal has retained different counsel. This appeal follows a sec. 974.06, Stats., proceeding instituted by his present counsel. The issues raised relate to a 'brown sealed envelope' and the contents thereof which were examined by the trial court in camera during the 1969 trial.

In August of 1973, defendant petitioned for a writ of mandamus to the circuit court for Milwaukee county, ROBERT M. CURLEY, Circuit Judge, State ex rel. August K. Bergenthal v. Francis X. McCormack and Rose Nugent, Case #413--199. Defendant thereby sought to compel those respondents, as clerks of Milwaukee county circuit courts, to issue a certification of nonfiling for a missing 'brown sealed envelope.'

The mandamus action was initiated on the ground that the clerk's office had been unable to locate the envelope. The application for the writ further sought the production of the materials allegedly contained in the envelope and examined in camera by the trial court at the time of trial, if they could be found. The envelope was produced and the circuit court denied the writ.

Defendant then applied for another writ of habeas corpus in the federal district court. The writ was denied for failure to exhaust available state remedies, Bergenthal v. Mathews (E.D.Wis.1975), 392 F.Supp. 1267. Accordingly, defendant filed a motion in the circuit court for postconviction relief pursuant to sec. 974.06, Stats.

The motion alleged the following grounds for relief, all premised on the sixth and/or fourteenth amendments to the United States Constitution:

Paragraph 14A: The trial court failed to properly preserve the materials it had examined 'in camera' thus preventing defendant's access to a record of sufficient completeness for review of the motion for postconviction relief.

Paragraph 14B: Gross negligence was committed prior to and during the mandamus action in relation to the location of the 'brown sealed envelope' by the trial court and the clerks of the circuit court, thus preventing defendant's access to the materials examined 'in camera.'

Paragraph 14C: Following defendant's trial, his prior counsels failed to make an effort to have the materials examined 'in camera' transferred to this court for purposes of appellate review of the issue of exculpation, thus denying defendant effective assistance of counsel.

'Paragraph 14D: The 'brown sealed envelope' containing the materials examined 'in camera,' which was produced during the mandamus action, appeared to have been tampered with and materials and evidence which were supposed to be in the envelope were missing.

Paragraph 14E: The materials which are contained in the envelope exculpate the guilt and punishment of the defendant and impeach the credibility of the prime prosecution witness.

Paragraph 14F: The trial court failed to thoroughly examine the materials 'in camera' during the course of the trial.

Paragraph 14G: Newly discovered evidence showed that on the date of the offense the prime prosecution witness was suffering from physical and mental disability to the extent that her competency to testify was materially affected.

The defendant also requested that the judge who presided at the trial disqualify himself from hearing the motion on the ground that he was a material witness to the merits of defendant's claimed constitutional violations. The trial judge did not disqualify himself.

The trial court determined that the record conclusively established that the defendant was entitled to no relief. Therefore, he denied defendant's motion for post-conviction relief without an evidentiary hearing.

Two questions are presented for consideration:

1. Did the trial court abuse its discretion in denying defendant's motion for postconviction relief without an evidentiary hearing?

2. Did the trial judge err in failing to disqualify himself from hearing defendant's motion for postconviction relief?

FAILURE TO GRANT AN EVIDENTIARY HEARING.

Sec. 974.06, Stats., provides in part, that a prisoner in custody under sentence may bring a sec. 974.06 motion on the grounds that the sentence was imposed in violation of the United States Constitution or the constitution or laws of this state. The statute further provides that unless the motion, files and records of the action conclusively show the prisoner is not entitled to relief, the trial court shall grant a prompt hearing, determine the issues and make findings of fact and conclusions of law.

We are of the opinion that, under the particular facts of this case, it was error for the trial court not to grant an evidentiary hearing and make appropriate findings of fact and conclusions of law. This is not to say that such a hearing would result in a vacation of the sentence or the granting of a new trial. We would further observe that if in fact a new trial were to be held as a result of such a hearing on remand, Bergenthal could be retried, and, if convicted of the same offenses, subject to the same sentences as originally imposed.

In the trial court's opinion, the motion made by defendant for postconviction relief basically alleged that error had been committed in the ruling as to the nonexculpatory nature of the materials examined in camera. The court concluded that the opinion of this court on direct appeal disposed of the issue. It therefore, determined that the motion could not be used as a vehicle for a second appeal on grounds already reviewed.

In State v. Bergenthal, supra, 47 Wis.2d pp. 673, 674, 178 N.W.2d p. 20, this court observed that:

'. . . On motions after verdict, one hundred claims of error were asserted in the trial court. In a motion before this court to stay execution of the sentence, defendant's counsel asserted that ninety-nine survived to be raised on this appeal. Those not commented upon in this opinion were considered and found to be repititious, without merit or without significant effect upon the verdict and judgment reached.' (Emphasis supplied.)

The conclusion of the trial court was error, no doubt because it was not aware of the fact the 'brown sealed envelope' was not a part of the record on the direct appeal. This fact is conceded by the state.

During the course of the defendant's trial, requests had been made, in accordance with Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, that the prosecution turn over to the court for in camera inspection all materials exculpating or tending to exculpate defendant's guilt or degree of punishment. Accordingly, the prosecution delivered to the trial court the requested materials. The court reviewed them and found nothing contained therein to be of an exculpatory nature. The court stated that the materials would be maintained, for appeal purposes, in the brown sealed envelope. On motion after verdict, the court's ruling as to the nature of the materials reviewed was challenged and the court indicated once again that the materials showed nothing which would be exculpatory of defendant's guilt or degree of punishment. The court's ruling was not directly challenged on appeal to this court, State v. Bergenthal, supra. It cannot be said the issue raised in the post-conviction motion was disposed of on direct appeal because the in camera materials contained in the brown sealed envelope were not transmitted to this court when the direct appeal was taken.

However, the state argues that, even though the alleged error was not raised on appeal, it had been properly preserved in motions after verdict, and, therefore, should have been raised on direct appeal. It is the state's position that defen...

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28 cases
  • State v. Lo
    • United States
    • Wisconsin Supreme Court
    • July 11, 2003
    ...textual analysis addressing the issue of when a claim was barred because of some prior proceeding. ¶ 25. In Bergenthal v. State, 72 Wis. 2d 740, 242 N.W.2d 199 (1976) (Bergenthal II), four years after Peterson, the court gave § 974.06 an expansive interpretation. Bergenthal was convicted of......
  • State v. Starks
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    • Wisconsin Supreme Court
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    ...a constitutional right. Id. at 180, 517 N.W.2d 157. In our decision, we began by overruling our own precedent in Bergenthal v. State, 72 Wis.2d 740, 748, 242 N.W.2d 199 (1976), which held that a court must always consider constitutional claims in a § 974.06 motion, even those that were forf......
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    • U.S. District Court — Eastern District of Wisconsin
    • December 13, 1999
    ...on the merits and did not finally adjudicate the issues raised. Petitioner also asserted, relying on Bergenthal v. State, 72 Wis.2d 740, 242 N.W.2d 199 (1976) (hereinafter "Bergenthal"), that even if Judge Raskin's decision was on the merits, an unappealed § 974.02 decision did not bar reli......
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    ...or amended motion, thereby cutting off successive frivolous motions.” Id. at 177, 517 N.W.2d 157. ¶ 25 In Bergenthal v. State, 72 Wis.2d 740, 748, 242 N.W.2d 199 (1976), the court interpreted § 974.06(4) as permitting a defendant to raise a constitutional issue in a § 974.06 motion, even if......
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