Birts v. State
| Decision Date | 06 May 1975 |
| Docket Number | No. S,S |
| Citation | 228 N.W.2d 351,68 Wis.2d 389 |
| Parties | Berry W. BIRTS, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. tate 1. |
| Court | Wisconsin Supreme Court |
Laurence E. Norton II, Legal Aid Society of Milwaukee, Milwaukee, for plaintiff in error.
Robert W. Warren, Atty. Gen., and Christine M. Wiseman, Asst. Atty. Gen., Madison, for defendant in error.
The controversy on this review concerns an attempt by Berry W. Birts, the plaintiff in error, to withdraw his guilty plea that led to his conviction of battery to a police officer in violation of sec. 940.205, Stats., and carrying a concealed weapon in violation of sec. 941.23. He was sentenced to two years on the first charge, and one year on the second, the sentences to run concurrently with each other and with the sentence Birts was then serving for armed robbery. Birts' subsequent motion to withdraw his guilty plea was denied and this court issued writs of error to review both this order and the judgment of conviction. We affirm.
Birts was arrested on November 20, 1971, and charged with battery to a police officer and carrying a concealed weapon, as well as resisting arrest in violation of sec. 946.41, Stats. Birts was a passenger in a car involved in an accident. The arresting officer testified that he asked for identification from Birts who then started to draw a gun. The officer restrained him from drawing, Birts ran, the officer gave chase, and the pair scuffled. Birts then knocked the officer down and jumped on his back.
Before accepting the pleas, the trial court informed the defendant that it was not bound by the plea bargaining that had been agreed upon by defendant and the prosecution to the effect that the defendant would plead guilty to the first two charges and that the charge for resisting arrest would be dismissed. The court informed the defendant that it could sentence him for up to three years' imprisonment, consecutive to rather than concurrent with the armed robbery sentence he was presently serving. 1 The court further informed defendant in detail of the constitutional rights he was giving up. Birts then indicated that he understood everything the court said and had no questions. The court then accepted the defendant's guilty pleas and sentenced him to not more than two years for battery to a police officer and not more than one year for carrying a concealed weapon, the sentences to run concurrently with each other and with the armed robbery sentence he was already serving.
After the guilty pleas were taken and sentencing was completed in June, 1973, the defendant, in October, 1973, moved to vacate his guilty pleas on the ground of his alleged misunderstanding as to the effect of the concurrent sentences upon his mandatory release time. At the hearing on defendant's motion to withdraw his pleas, the defendant testified that at the time he entered his guilty pleas he thought the concurrent sentences would have no effect on his January, 1974, mandatory release date, based on the armed robbery conviction. In fact, however, the defendant testified, parole authorities informed him only two days after he pled guilty that his new mandatory release date would be December, 1974. Defendant contended at the hearing on his attempt to withdraw his guilty pleas that if he had known this effect on his mandatory release date at the time he entered his pleas he would not have pled guilty since he planned to attend college in the semester beginning January, 1974. At the hearing, an assistant district attorney said that he would stipulate to this fact, but the court refused to accept the stipulation. The court later denied the motion based on the court's conclusion that Birts did in fact understand that the new sentences would increase his mandatory release time.
The burden is upon a defendant who wishes to withdraw his guilty plea to show by clear and convincing evidence that the plea was not knowingly and voluntarily entered and that withdrawal is necessary to prevent manifest injustice. 2 This court, in proved by the defendant, justify withdrawal the American Bar Association Project on Minimum Standards for Criminal Justice relating to withdrawal of guilty pleas. The following four factual situations which, if provided by the defendant, justify withdrawal of the plea to correct manifest injustice were recognized in Reppin and in numerous later cases:
This court has held, of course, that situations presenting a manifest injustice are not necessarily limited to the four examples cited. The defendant, here, in fact does not contend that his understanding regarding his parole rights at the time he pled guilty presents a case that falls squarely within any of the enumerated factual situations. He now argues that lack of knowledge that 'the charge or . . . the sentence actually imposed could be imposed' should be extended to include a situation where the defendant does not understand the exact length of time he could spend in prison if he receives the sentence he bargains for.
A preliminary issue presented on this review is whether the defendant in fact did think that by pleading guilty to two crimes and receiving concurrent sentences he would not spend any additional time in jail and that this misunderstanding actually motivated him to plead guilty. The trial court found to the contrary.
The trial court found that defendant did in fact realize that his plea of guilty would increase his time of imprisonment, and further, that whatever defendant's expectations of parole were, they were not the sole or even primary reason for the plea. We have held that in determining whether to grant a motion to withdraw a guilty plea, 'the trial court is not obligated to accept the defendant's statements as verities.' 4 The court's findings cannot be upset unless they are against the great weight and clear preponderance of the evidence, 5 and here that standard has not been fulfilled. Defendant has had considerable education and previous experience with the prison and parole system. He personally took an active role in the plea bargaining process. He now claims that his plea was motivated by his belief concerning when he would be released from prison, yet nothing in the record suggests he ever expressed his desires regarding parole to either his counsel or the assistant district attorney, or to the trial court when questioned at the time of the giving of the plea. There is no claim that the assistant district attorney made any representations at all to defendant concerning parole. If this particular matter was, in fact, of crucial importance to defendant it is difficult to understand why he never brought it up. Moreover, in a letter to the trial court subsequent to pleading guilty defendant indicated that his alleged expectation concerning parole time was only one of the factors leading to the plea. His letter said, in part:
'. . . 'May I further state that I pled guilty to come clean, but I certainly was unaware that a new two-year term carried that amount of gravitation, and I certainly am aware that the offenses of which I was convicted are serious offenses. After being reimprisoned for 13 months prior to the convictions of June 27, 1973, I wanted to come clean and to divest myself of the anticipation that I endured as to what the final outcome of these charges would be."
The defendant argues here that the trial court was actually foreclosed by stipulation of the parties from making factual findings contrary to his position. This is simply not so. The fact that a stipulation was recited in court as between the defendant and the prosecutor does not mean that the stipulation was final and binding and thus not subject to judicial scrutiny. Sec. 269.46(2), Stats., provides:
'(2) No agreement, stipulation or consent, between the parties or their attorneys, in respect to the proceedings in an action or special proceeding, shall be binding unless made in court and entered in the minutes or made in writing and subscribed by the party to be bound thereby or by his attorney.' 6
This section has been interpreted by this court in Schmidt v. Schmidt 7 as follows:
'. . . oral stipulations made in open court during trial, taken down by the reporter and acted upon by the parties and the court are valid and binding.' (Emphasis supplied.)
To continue reading
Request your trial
-
State v. Taylor, 2011AP1030–CR.
...be rendered powerless to reject a conclusory allegation—“I didn't know”—that is disproven by the existing record.4 [347 Wis.2d 75]¶ 83 In Birts v. State, the court said: “We have held that in determining whether to grant a motion to withdraw a guilty plea, ‘the trial court is not obligated ......
-
State v. Byrge
...parole eligibility did not render the plea defective. Byrge, 225 Wis. 2d at 718. The court relied in part on Birts v. State, 68 Wis. 2d 389, 398-99, 228 N.W.2d 351 (1975), in which we held that a circuit court is not required to notify defendants about parole rights. Byrge, 225 Wis. 2d at 7......
-
State v. Byrge
...." Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Wisconsin law is in accord. In Birts v. State, 68 Wis.2d 389, 398-99, 228 N.W.2d 351, 356 (1975), our supreme court held that a trial court was not required to inform defendants of their parole We acknowledge that H......
-
Melby v. State
...to a very significant degree, any factual stipulations entered into by the parties can be rejected by the trial court. Birts v. State (1975), 68 Wis.2d 389, 228 N.W.2d 351. It has been held also that failure to receive sentence concessions contemplated by a plea agreement is no longer avail......
-
WI Court of Appeals rules that trial courts must tell defendants about Truth in Sentencing mandates.
...effect on the range' of punishment (cites omitted)." The court also rejected the State's reliance on the holding in Birts v. State, 68 Wis.2d 389, 397, 228 N.W.2d 351 (1975), that the defendant could not withdraw his pleas, because his "beliefs concerning his release time were the product o......