Burkhalter v. State

• Decision Date: 05 October 1971
• Docket Number: Nos. S,s. S
• Citation: 190 N.W.2d 502,52 Wis.2d 413
• Parties: Roy BURKHALTER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error (three cases). tate 110--112.
• Court: Wisconsin Supreme Court

Page 502

190 N.W.2d 502

52 Wis.2d 413

Roy BURKHALTER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error (three cases).

Nos. State 110--112.

Supreme Court of Wisconsin.

Oct. 5, 1971.

The plaintiff in error, Roy Burkhalter (hereinafter defendant on Barkhalter), on January 27, 1970, pleaded guilty to three separate informations charging theft, operating a motor vehicle without the owner's consent, and escape from custody.

On December 31, 1969, the defendant Burkhalter took a 1970 Ford Torino two-door hardtop from the garage lot of Alphorn Ford, Monroe, Wisconsin. Sometime later that day he picked up Kurt Peterson at the Peterson home in Browntown. They then drove to Burkhalter removed parents' home where Burkhalter removed the dealer's license plates on the car and put on a different set of Wisconsin license plates. After leaving the Burkhalter home, Burkhalter told Peterson that the car had been stolen by him. Peterson asked to be let out. After being let out he hitchhiked into Monroe. He telephoned the Monroe police department and reported the car theft. An all-points police bulletin was put out. Later in the day the defendant was arrested by the Dane county sheriff's department after an accident with the Torino and a refusal to call the police.

On January 13, 1970, defendant made his initial appearance in court in connection with the charge of theft of the Torino from Alphorn Ford. He was informed of his right to counsel but he stated he wanted to plead guilty. The court refused to accept the plea and appointed an attorney to represent him.

The defendant appeared before the trial court on January 15, 1970, with his attorney. He waived the preliminary hearing and was bound over on the charge of theft. On January 16, 1970, he appeared once more. The information was read and the defendant again stated that he wished to plead guilty. The court questioned the defendant about the guilty plea and had some doubt as to whether the defendant understood one of the elements of the offense, e.g., whether the defendant intended to deprive Alphorn Ford of the possession of the car. The proceedings were then adjourned to January 20, 1970.

On January 20, 1970, the defendant was taken to county court in Green county. His defense attorney wanted a conference with him and they went to the west end of the courthouse hall. The defendant then told his defense counsel he was going to the rest room, went down to the basement and escaped.

A 1965 white Mercury Comet was reported stolen from Dearth Motors, Monroe, Wisconsin, on January 21, 1970. The next day a Woodford, Wisconsin police office recognized the white Comet parked near defendant's parents' home. He also recognized the defendant Burkhalter, who was sitting behind the wheel of the car. After a high speed chase the defendant was arrested.

On January 26, 1970, Burkhalter appeared in connection with the charges of escape and operating a vehicle without the owner's consent. The same attorney was appointed to defend him. At the January 27, 1970, hearing he waived a preliminary hearing and pleaded guilty to the three charges:

1. Theft of the Torino on December 31, 1969, a violation of sec. 943.20(1) (a), Stats.

2. Operating a car (the white Comet) without the owner's permission, a violation of sec. 943.23, Stats.

3. Escape from custody pursuant to a legal arrest for a felony, a violation of sec. 946.42(2)(a), Stats.

On the first charge the court sentenced the defendant to three years at the Wisconsin State Reformatory at Green Bay. The sentence was to be served concurrently with another sentence that was reinstated because the defendant's probation on another conviction had been revoked.

On the second charge, the court sentenced the defendant to three years at Green Bay, to be served concurrently with the first sentence. On the third charge of escape, respondent was sentenced to six months, to be served consecutively to the first two sentences imposed.

The defendant, by the State Public Defender, on October 27, 1970, filed a postconviction motion to withdraw his plea of guilty, and for an order vacating the sentences. The motion was denied on December 4, 1970, by the trial court. A writ of error directed to the order denying the motion was issued on December 7, 1970.

James H. McDermott, State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., William F. Eich, Asst. Atty. Gen., Madison, for defendant in error.

BEILFUSS, Justice.

There are six issues presented:

1. Did the defendant understand the range of punishments carried by the three violations charged?

2. Did the trial court fail to ascertain whether any promises or threats had been made in regard to the defendant's appearance?

3. Did the trial court establish that the defendant's conduct constituted the offense charged (the theft and escape charges)?

4. Did the trial court lack jurisdiction because the information charged an offense in futuro (theft charge)?

5. Did the trial court fail to establish defendant's understanding of the nature of his crime (escape charge)?

6. Did the trial court have jurisdiction over the escape charge since the complaint alleged a violation which was a crime not known to law?

A defendant wishing to withdraw a guilty plea has the burden of establishing that his plea was made involuntarily and without understanding. Drake v. State (1969), 45 Wis.2d 226, 172 N.W.2d 664. He must also demonstrate that the denial of a motion to withdraw a plea of guilty works a manifest injustice. Martinkoski v. State (1971), 51 Wis.2d 237, 186 N.W.2d 302; State v. Reppin (1967), 35 Wis.2d 377, 151 N.W.2d 9.

The defendant's counsel first argues that the court 'did not fully establish that defendant knew the range of punishment,' and that under Ernst v. State (1969), 43 Wis.2d 661, 170 N.W.2d 713, he is entitled to withdraw his plea of guilty.

The record reveals that at a hearing held on January 16, 1970, the defendant testified that he had participated in court procedures in criminal matters before and that he knew of his 'rights' and 'procedure in court.'

At the January 27, 1970, hearing before his pleas to the three charges were accepted, together with other relevant Ernst inquiries, the court informed and questioned the defendant as follows:

'COURT: And in regard to the penalties, you understand as indicated before, the first charge today would carry on conviction, or guilty plea, a fine of up to $1,000 or five years imprisonment or both; the driving without owner's consent. And the charge of escape, carries a maximum fine of $500 or one year in jail or prison, or both. You fully understand that?

'DEFENDANT: Yes.

'COURT: And in regard to the other charge, 943.20(3), it was alleged it was in excess of $2500 so it makes the penalty not more than 15 years, a fine of not more than $10,000, or both. You understand that?

'DEFENDANT: Yes.

'COURT: And you have been represented by Mr. Randal Elmer as your attorey throughout all these proceedings, is that correct?

'DEFENDANT: Yes.

'COURT: Have you had an ample opportunity to talk with him, going over the details with him?

'DEFENDANT: Yes.'

The combined statutory maximum for the three crimes was twenty-one years. The judge did not tell the defendant that consecutive sentences would not be imposed. The total maximum of the three indeterminate sentences imposed was three and one-half years. Three years on the theft count, three years on the operating-without-consent-count to be served concurrently, and six months on the escape count to be served consecutively. In addition, the three-year sentences were concurrent with a previously imposed sentence. Neither the defendant nor his counsel state that the defendant was in fact misled or induced to enter the pleas by virtue of any false or incomplete information concerning the range of punishments. We have no hesitation in deciding that this error, if it can be considered error, was completely harmless.

The defendant contends the trial court failed to ascertain whether any threats or promises had been made in connection with his appearance.

In Ernst v. State, supra, this court set forth guidelines that trial court should use before accepting pleas of guilty. One of the guidelines taken from State ex rel. Burnett v. Burke (1964), 22 Wis.2d 486, 494, 126 N.W.2d 91, 95, provides: '3. To ascertain whether any promises or threats have been made to him in connection with his appearance, his refusal of counsel, and his proposed plea of guilty.'

The troublesome phrase of the guideline is 'promises or threats * * * in connection with his appearance.' Ordinarily, in most if not all cases, appearances in court in response to criminal charges are, in a sense, coerced or forced. A defendant is arrested, subjected to bail requirements or confined to await trial, and faced with the realities of a criminal trial. The overriding requirement of this guideline is that the plea of guilty is freely and voluntarily made, and that it is not the result of threat, promise, coercion or fear of the consequences if a plea is not entered.

There may be some instances where, literally, an appearance is the result of threat, coercion or fear, such as a threat of mob violence to the accused (such as Burnett), or a prolonged by stay in jail awaiting trial. In those and similar instances it is not the appearance in court that is constitutionally unfair, but the threat or coercion that induce a willingness to enter a plea of guilty 'to get it over with' that lacks necessary due process.

In this record there is not the slightest hint of any threats or promises that improperly or unfairly induced the pleas of guilty. The record abounds with questions by the court and answers by the defendant that lead to the conclusion that the pleas of guilty were understandingly, freely and voluntarily made.

The phrase 'in connection with his appearance,' as it appears in the guilty plea guidelines of...