Brisk v. State
| Decision Date | 25 November 1969 |
| Docket Number | Nos. S,s. S |
| Citation | 44 Wis.2d 584,172 N.W.2d 199 |
| Parties | Leon R. BRISK, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. Leon R. BRISK, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 30, 31. |
| Court | Wisconsin Supreme Court |
In case number State 30 the writ of error seeks a review of a judgment of conviction and sentencing. In case number State 31 the writ of error seeks to review an order denying the motion of Leon R. Brisk for leave to withdraw his plea of guilty. The plaintiff in error Leon S. Brisk, aged 19 years, was charged with intentionally taking a motor vehicle in the city of Sturgeon Bay on May 8, 1968, without the consent of the owner contrary to sec. 943.23, Stats. At a preliminary hearing a confession was admitted in evidence over the objection of Brisk, his counsel then attempted to plead him guilty, and he was bound over for trial. Two days later he waived a jury and entered a plea of guilty before the same judge to an information charging him with operating a vehicle without the owner's consent. The plea was accepted and after a presentence investigation, Brisk was sentenced for not more than three years in a Wisconsin state prison. He later moved to withdraw his guilty plea and to vacate the sentence; after a hearing, his motion was denied.
Roger Pinkert, Sturgeon Bay, for plaintiff in error.
Robert W. Warren, Atty. Gen., William A. Platz and Donald R. Zuidmulder, Asst. Attys. Gen., Madison, James Pankratz, Door County Dist. Atty., Sturgeon Bay, for defendant in error.
At the preliminary hearing, Brisk took the stand to testify the confession was not voluntary. His testimony was either not believed by the magistrate or was not deemed to constitute involuntariness.
After the judge allowed the confession in evidence, the district attorney asked Brisk whether or not he had actually committed the crime. Brisk claimed his right under the fifth amendment not to answer on the ground he might incriminate himself. The county court, however, instructed Brisk he was required to answer the question and in response he admitted he took the car. On the hearing on the motion to withdraw the plea, the trial court admitted error in requiring Brisk to incriminate himself but held the error was nonprejudicial and considered the police officer's false statement to be mere puffing and the case to be ruled by Hawkins v. State (1965), 26 Wis.2d 443, 132 N.W.2d 545.
The issue on this appeal is whether the trial court abused its discretion in failing to allow Brisk under the circumstances to withdraw his plea; we think it did. To withdraw a plea of guilty in Wisconsin, it must be shown that a manifest injustice would exist if the plea were allowed to stand. We orginally said in recognizing the procedure to withdraw a plea of guilty in Pulaski v. State (1964), 23 Wis.2d 138, 126 N.W.2d 625, that the motion was addressed to the discretion of the court in the interest of justice and the court had inherent power to hear and determine such a motion. This remedy was further developed in State v. Reppin (1967), 35 Wis.2d 377, 151 N.W.2d 9, wherein the court adopted the manifest injustice test for allowing the withdrawal of a plea of guilty approved in the standards of the American Bar Association Project on Minimum Standards for Criminal Justice relating to Pleas of Guilty. 1
In Reppin, four illustrative situations were set forth which constituted manifest injustice. Those situations were:
"(ii) Withdrawal is necessary to correct a manifest injustice whenever the defendant proves that:
'(1) he was denied the effective assistance of counsel guaranteed to him by constitution, statute, or rule;
'(2) the plea was not entered or ratified by the defendant or a person authorized to so act in his behalf;
We expressly pointed out in Reppin that these situations were not exclusive and other facts could constitute a manifest injustice which would require the granting of the withdrawal of the plea of guilty. The burden of proving manifest injustice is on the person seeking the withdrawal of his plea. The Reppin doctrine has been recognized by this court since its announcement. See Galvin v. State (1968), 40 Wis.2d 679, 162 N.W.2d 622; State v. Biastock (1969), 42 Wis.2d 525, 167 N.W.2d 231.
The facts before us fall outside these illustrations and it is argued this case is controlled by Hawkins v. State, supra, and the Biastock Case. In both of those cases we held that by pleading guilty the defendant waived the errors which occurred up to that time. In Reppin, this court reviewed Hawkins and pointed out the waiver doctrine did not prevent the application of Reppin because the withdrawal of the plea is dictated by the demands of manifest injustice. To be sure, the effects of a knowledgeable voluntary plea of guilty is a waiver of prior errors. But the question under Reppin is whether the...
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State v. Harris
...the accused has waived his rights but whether he should be relieved from such a waiver.'" Id. at 565 (quoting Brisk v. State, 44 Wis. 2d 584, 588, 172 N.W.2d 199 (1969)). Harris argues he is entitled to withdraw his guilty plea as a result of the State's violation of the discovery statute. ......
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State v. Taylor, 2011AP1030–CR.
...v. Wolfe, 46 Wis.2d 478, 484, 175 N.W.2d 216 (1970); Meunier v. State, 46 Wis.2d 271, 277, 174 N.W.2d 277 (1970); Brisk v. State, 44 Wis.2d 584, 587, 172 N.W.2d 199 (1969); Ernst v. State, 43 Wis.2d 661, 666, 170 N.W.2d 713 (1969); State v. Biastock, 42 Wis.2d 525, 529, 167 N.W.2d 231 (1969......
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State v. Krieger
...Potential flaws in the process have included the improper taking of a guilty plea at a preliminary examination, Brisk v. State, 44 Wis.2d 584, 588-89, 172 N.W.2d 199, 202 (1969); failure to establish a factual basis to support a plea, White v. State, 85 Wis.2d 485, 488, 271 N.W.2d 97, 98 (1......
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Edwards v. State
...of the court, was first stated in State v. Reppin (1967), 35 Wis.2d 377, 151 N.W.2d 9, and has been followed since. Brisk v. State (1969), 44 Wis.2d 584, 172 N.W.2d 199; Gibson v. State (1970), 47 Wis.2d 810, 177 N.W.2d 912. But a plea may be withdrawn as a matter of right when the acceptan......