Creighbaum v. State

• Decision Date: 09 May 1967
• Parties: Charles H. CREIGHBAUM, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 494

150 N.W.2d 494

35 Wis.2d 17

Charles H. CREIGHBAUM, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

May 9, 1967.

Robert H. Friebert, State Public Defender, Madison, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., William G. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, for defendant in error.

HANLEY, Justice.

Two issues are presented on this appeal:

1. Does the failure of the trial court to advise on the potential sentence compel a reversal as a matter of law?

2. Applying the totality of circumstances test, were the waiver of counsel and the pleas of guilty freely, voluntarily and understandingly made?

Defendant contends that the failure to advise him of the possible maximum penalty he might receive under the charges brought against him compels a reversal as a matter of law, not because the defendant did not know, but simply because the trial court failed to so state.

In support of his contention, the defendant first cites State ex rel. Burnett v. Burke (1964), 22 Wis.2d 486, 126 N.W.2d 91, for the correct proposition that this court formulated therein a desirable procedure recommended for the use of trial courts before accepting waivers of counsel and pleas of guilty.

The recommended procedure reads in part as follows, at p. 494, 126 N.W.2d at p. 95:

'2. To establish the accused's understanding of the nature of the crime with which he is charged and the range of punishments which it carries.'

However, in the subsequent case of State ex rel. Kline v. Burke (1965), 27 Wis.2d 40, 45, 133 N.W.2d 405, this court said:

'* * * Merely because all the precautionary steps recommended in Burnett may not have been followed does not render constitutionally tainted an acceptance of waiver of counsel and a plea of guilty. * * *'

The federal court similarly concluded that Burnett, supra, involves only suggested safeguards. That court in Horwath v. Burke (D.C.Wis., 1965), 236 F.Supp. 674, said:

'(2) The trial court, on arraignment and plea, did not take all the steps proposed by the Supreme Court of Wisconsin as means of ascertaining the voluntariness and understanding with which the waiver of counsel and plea of guilty were made. See State ex rel. Burnett v. Burke, 22 Wis.2d 486, 126 N.W.2d 91 (1964), and State ex rel. Drankovich v. Murphy, 248 Wis. 433, 22 N.W.2d 540 (1946). Failure to take the additional precautionary safeguards does not establish that petitioner's constitutional rights were violated. See Aiken v. United States, 296 F.2d 604, 607 (4th Cir. 1961); Bagley v. Washington State Board of Prison Terms and Paroles, supra (9 Cir., 323 F.2d 510).' (Emphasis supplied)

See also Kline v. Burke (D.C.Wis., 1965), 239 F.Supp. 798, 799.

The defendant attempts to escape this seemingly conclusive language by a very unique consideration of the cases dealing with withdrawals of guilty pleas. The cases are divided into pre-Burnett pleas versus post-Burnett pleas. The defendant correctly concludes that the cases involving a plea of guilty coming prior to Burnett, supra, have all been handled by applying the 'totality of the circumstances' test, i.e this court considered all of the circumstances in determining whether or not a guilty plea was voluntary.

Defendant Creighbaum then argues that the post-Burnett cases, namely, State v. Strickland (1965), 27 Wis.2d 623, 135 N.W.2d 295, and Eskra v. State (1965), 29 Wis.2d 212, 138 N.W.2d 173, by their very language created a wholly new approach in the consideration of guilty pleas.

It is only some of the language which may be relied upon because the actual holding of Strickland, supra, and Eskra, supra, was that the later appearance of trial counsel in the case waived any defects whether or not they be founded on constitutional rights. In neither case did this court hold that the pleas were involuntarily or unintelligently made. The language in State v. Strickland, supra, relied on heavily by the defendant reads, 27 Wis.2d at p. 629, 135 N.W.2d at p. 299:

'Furthermore, if an accused is not represented by counsel, it is the duty of the trial court before accepting a plea of guilty to make sure that the accused understands the nature of the crime with which he is charged and the range of punishments. * * * ' (Emphasis supplied)

Similar language directed to the conduct of trial courts is found in Eskra, supra, which states at p. 218 of 29 Wis.2d, at p. 176 of 138 N.W.2d:

'It is also undoubtedly true that before accepting a plea of guilty, it is necessary, particularly when the defendant is not represented by counsel, to make sure that accused understands the nature of the crime with which he is charged and the range of punishments. * * * ' (Emphasis supplied)

Although the above-quoted language is meaningful and seemingly not obscure, in neither case does the court state what procedural consequence attaches if the trial court fails to follow the suggested safeguards.

If the court intended such failure to result in a reversal as a matter of law, it would have so stated clearly and concisely.

Moreover, in Rafferty v. State (1966), 29 Wis.2d 470, 474, 138 N.W.2d 741, this court held the plea of guilty was intelligently and voluntarily entered even though the trial court as shown by the record failed to determine explicitly the extent of the defendant's education and also failed to alert the accused that a lawyer might be of service in discovering defenses or mitigating circumstances. The court, in so holding, said:

'* * * A review of the record makes it apparent that counsel was waived and the plea of guilty entered freely, voluntarily, and understandingly. That is all that justice and due process require. State ex rel. Kline v. Burke (1965), 27 Wis.2d 40, 45, 133 N.W.2d 405.'

The importance of the above language is that it demonstrates clearly that this court did not compel or even consider compelling a reversal by law, but, in fact, made a determination upon the record as a whole.

Another case which completely opposes the proposition of the defendant is that of State v. Pierce (1966), 33 Wis.2d 104, 146 N.W.2d 395.

In that case, the trial court did not follow the Burnett recommendations. Although the trial court in Pierce did advise the defendant on the range of punishment, the judge did not ascertain whether any promises or threats had been made to the accused and also did not ascertain the extent of the defendant's educational background. This court weighed all of the factors and concluded that there was an intelligent waiver of counsel. This court also ordered that the matter be remanded to the trial court for a specific finding of fact as to the issue of inducement. The court did not compel a reversal as a matter of law, but determined that a hearing was in order.

To get around this case, it seems that the defendant would have to take the untenable position of arguing that it is less of a defect if the trial court fails to ascertain whether any threats or promises were made than if the trial court fails to advise on the range of punishments. This court has never made any such appraisal.

No case, federal or state, is cited wherein the court held that there would be a reversal as a matter of law if the trial court failed to advise on the range of punishment.

Defendant takes us through the foregoing arguments in an attempt to persuade the court that the failure of the trial court to advise on the hypothetical maximum sentence possible upon conviction is a violation of the defendant's constitutional rights.

Proceeding with the defendant's argument, it follows that if the failure to advise is a violation of a constitutional right, and if the failure to advise is shown on the record, then the defendant would be able to withdraw his guilty plea as a matter of right. Van Voorhis v. State (1965), 26 Wis.2d 217, 223, 131 N.W.2d 833; State v. Strickland, supra; Mueller v. State (1966), 32 Wis.2d 70, 145 N.W.2d 84; State v. Koerner (1966), 32 Wis.2d 60, 145 N.W.2d 157. But as the brief of the state points out, a discussion on how to best guarantee a constitutional right does not of itself create that constitutional right. If the circumstances, as gleaned from the whole record (including any post-conviction hearings), demonstrate that a defendant is aware of the range of punishment, no violation of a constitutional right can be predicated upon the failure of the trial judge to expressly and explicitly advise on the range of punishment.

The constitutional right involved is not that one must be advised of the range of punishment, but is that one may not be convicted on a plea of guilty following a waiver of counsel when said waiver and plea are not freely, voluntarily, and understandingly made. This would violate the due process clause of the Fourteenth Amendment.

It may be true, as defendant contends, that the totality of circumstances test when used to determine what a defendant knew is open to criticism because it utilizes subjective judgment which can never be more than speculation even though the subjective judgment be based on certain objective evidence found in the record as a whole.

However, in Spanbauer v. Burke (7th Cir., 1966) 374 F.2d 67, decided December 28, 1966, the circuit court of appeals affirmed the district court's denial of a petition for a writ of habeas corpus. The court, in Spanbauer, said at p. 74 of the opinion:

'* * * A preponderance of the evidence is not created by allegations and a showing that the state court trial judge did not literally fulfill all elements of a formula describing his responsibilities for acceptance of waiver of counsel. Substance rather than form is the guiding criterion for reviewing courts.' (Emphasis supplied)

And it would clearly be a triumph of form over substance were this court to hold that a reversal as a matter of law was compelled because 'all elements of a formula' were not precisely followed.

Ordinarily the question of...