Butler v. Burke, 15310.

• Decision Date: 15 April 1966
• Docket Number: No. 15310.,15310.
• Citation: 360 F.2d 118
• Parties: Robert L. BUTLER, Petitioner-Appellant, v. John C. BURKE, Warden, Wisconsin State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

360 F.2d 118 (1966)

Robert L. BUTLER, Petitioner-Appellant, v. John C. BURKE, Warden, Wisconsin State Prison, Respondent-Appellee.

No. 15310.

United States Court of Appeals Seventh Circuit.

April 15, 1966.

Donald S. Eisenberg, and Douglas R. Zilz, Madison, Wis., for appellant.

Bronson C. La Follette, Atty. Gen., William A. Platz, Asst. Atty. Gen., John H. Bowers, Deputy Atty. Gen., Madison, Wis., for appellee.

Before HASTINGS, Chief Judge, and KILEY and MAJOR, Circuit Judges.

MAJOR, Circuit Judge.

Robert L. Butler, petitioner, by this action sought a Writ of Habeas Corpus directed at respondent, John C. Burke, Warden, Wisconsin State Prison. Petitioner is in custody of respondent by virtue of a commitment to the State Department of Public Welfare for treatment under provisions of Sec. 959.15(6) of the Wisconsin Statutes (known as the Wisconsin Sexual Deviates Act), following his conviction in the County Court of Walworth County, Wisconsin, on August 13, 1962, on a plea of guilty to an information charging a violation of Sec. 944.12 of the Wisconsin Statutes, "enticing a child for criminal purposes."

Prior to the instant proceedings, petitioner sought a Writ of Habeas Corpus in a State Court of Wisconsin, relying on the same grounds for relief as he does here. By order of the State Supreme Court, an evidentiary hearing was held before Honorable M. Eugene Baker, Circuit Judge, whose findings of fact were subsequently confirmed by the Supreme Court and the petition denied.

In the instant proceeding, the parties agreed that the case be submitted on the pleadings and transcripts of record made in the original State Court proceeding and in the evidentiary hearing before Judge Baker. In this posture and without further evidence, the matter was heard on oral argument and written briefs by Honorable Robert E. Tehan, United States District Judge, who rendered a well considered opinion, in conformity with which the petition was dismissed on July 12, 1965. From this order the appeal comes to this Court.

The contested issue was stated by Judge Tehan in his opinion, 250 F.Supp. 178:

"The sole issue raised by this petition is whether the petitioner\'s ignorance of the provisions of the Sex Deviate Law, and the failure of the court and any other person to apprise him of said provisions, compels a finding, as a matter of law, that petitioner did not voluntarily waive his right to counsel."

While this is the primary issue for decision here, petitioner broadens the issues with the contention that the Court's failure to advise him as to his right to counsel at his preliminary hearing as well as when his plea of guilty was entered was a violation of both the State and Federal Constitutions.

Petitioner does not contend that he failed to receive a full and fair hearing on the disputed factual issues in the State Court Habeas Corpus proceeding. We doubt if we are under any obligation to review the findings made at that time and approved by the Supreme Court, particularly in view of the stipulation that the record made there was to stand as the record in the District Court. Townsend v. Sain, 372 U.S. 293, 319, 83 S.Ct. 745, 9 L.Ed.2d 770. Even so, as a matter of precaution, we have read the testimony and conclude that it furnishes substantial support for the State Court's findings of fact.

Petitioner was arrested and taken into custody on Saturday evening, August 11, 1962, while under the influence of alcohol. On Sunday morning, August 12, at the office of Chief Deputy Sawyer, he was identified by the boy involved in the alleged crime and was interviewed by the officer. During this interview he was informed of the charge against him. A complaint and warrant charging a violation of Sec. 944.12 had already been issued by the District Attorney.

At that time petitioner made and signed a statement relating to the events upon which the criminal charge was based, and a copy was given to Sawyer. (No contention is made but that this statement was voluntary.) Before signing the statement, petitioner was advised that he was entitled to counsel, although he was told by Sawyer that it was doubtful if a lawyer could do very much to help him. He requested a bondsman but was informed there was no professional bondsman in the area and that bail would be fixed by the Judge on his appearance in court. Petitioner during the interview expressed his concern and fear of the publicity which a court trial would engender because of its effect on his job, his friends and his family, and stated that he wanted to get the matter over as quickly as possible. In this conversation, Sawyer informed petitioner that it would take less time and involve less publicity if he waived an attorney and pleaded guilty to the charge, but that he (Sawyer) could not guarantee anything with respect to the outcome of his court hearing.

On Sunday evening, when petitioner was in jail, a Deputy Sheriff read him the provisions of the statute which he was charged with violating, which was an old statute and incorrectly stated the penalty as a fine of not more than $500 or not more than five years in prison, or both.

On August 13, petitioner was taken before Judge Erwin C. Zastrow, sitting as a Magistrate for a preliminary hearing which petitioner stated he understood and desired to waive. He was bound over to the County Court and immediately arraigned before the same Judge. Both prior to his preliminary hearing and again at the time of his arraignment, he was correctly informed by the District Attorney that the violation with which he was charged was a serious offense and carried a possible maximum penalty of ten years' imprisonment. At the time of his arraignment, the charge was read to him in open court, and he was advised by the Court of his right to be represented by counsel of his own choice and that if he was without funds, an attorney would be appointed for him. In response to the Court, he stated that he understood the charge, that he was not indigent and that he preferred to proceed without an attorney.

The District Attorney offered and the Court received three exhibits: (1) a statement made and signed by petitioner on Sunday afternoon during his interview with Sawyer, (2) a written statement by a witness to the alleged crime, and (3) interviews of Sawyer with the boy involved in the incident from which the charge stemmed. Petitioner entered a plea of guilty. No threats or promises were made to him. The trial Court did not specifically point out to petitioner that an attorney might be helpful in discovering possible defenses or mitigating circumstances of which a layman might not be aware.

Shortly prior to petitioner's appearance before the Court on August 13, he had appeared before the same Judge on a charge of disorderly conduct which involved an act by petitioner in relation to an adult male, similar in part to that involved in the instant matter. In that case petitioner changed a plea of not guilty to guilty for the stated reason that a trial would interfere too much with his employment.

At the time of his appearance in court on August 13, petitioner knew the nature of the charge brought against him and that taking indecent liberties with a small boy were illegal, but he did not believe it was a particularly violent act. Based on his plea of guilty, the nature of the charge and the exhibits introduced, the Court found that petitioner was "probably directly motivated by a desire for sexual excitement in the commission of the crime," and requested that the Department of Public Welfare accept him for treatment and observation, under the provisions of Sec. 959.15(2), after which the Department certified that it would accept him. On the following day, the Court committed petitioner to the Department for such presentence investigation.

On October 15, 1962, the Court, consistent with the Department's recommendation, found petitioner to be sexually deviated and in need of treatment for his mental abnormalities, and committed him to the Department of Public Welfare for treatment, pursuant to Sec. 959.15 (6).

The Circuit Court in the State Habeas Corpus proceeding found that petitioner was 34 years of age at the time of his arrest; that he had been employed by the International Business Machines Corporation in Chicago for slightly less than three years before his conviction; that his intelligent quotient was 115; that he had a B.A. degree from Beloit College, from which he graduated with a "B" average, and attended the Graduate School of Business Administration at Northwestern University during the years 1957 to 1959, but did not receive a degree, and that at no time did petitioner take any course in law or study courtroom procedure. The Court concluded:

"That petitioner deliberately and knowingly waived his right of counsel and entered a plea of guilty; that his conduct in this regard was motivated by his desire to avoid the publicity which a trial would likely engender coupled with his erroneous assumption that his acts, though wrong and illegal, were not so violent as to either require or induce a Court to impose any extended confinement upon him."

The State Supreme Court, after a review of the transcript of testimony and the exhibits, concluded that the findings were "amply supported by the evidence," "that petitioner voluntarily waived his right to counsel," and denied his petition for Habeas Corpus.

Petitioner first contends that the State Court in the original case failed to inform him adequately as to his right to counsel as required by Sec. 7, Article I, of the Wisconsin Constitution, and cites a number of State Court decisions. Assuming there may be confusion, even conflict, in these decisions, as petitioner argues, we see no point in citing or discussing them for the reason that the highest Court of the State has decided that petitioner was sufficiently advised and that his plea of guilty was voluntary, with a full understanding of the nature of...