Drake v. State

• Decision Date: 19 December 1969
• Docket Number: Nos. S,s. S
• Citation: 172 N.W.2d 664,45 Wis.2d 226
• Parties: Wallace Leon DRAKE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 87, 88.
• Court: Wisconsin Supreme Court

Page 664

172 N.W.2d 664

45 Wis.2d 226

Wallace Leon DRAKE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Nos. State 87, 88.

Supreme Court of Wisconsin.

Dec. 19, 1969.

On April 22, 1968, Wallace Leon Drake, hereinafter referred to as defendant, entered a plea of guilty to a charge of contributing to the delinquency of a minor. Defendant was found guilty and sentenced to one year in the county jail.

On December 1, 1968, while defendant was a prisoner in the Marathon county jail, a jailbreak occurred. On December 5, 1968, defendant and his wife were questioned about the jailbreak by the Marathon county district attorney. On that same day, defendant was charged with a violation of sec. 946.44(1)(b), Stats., assisting in a jail escape. Appearing before Judge Keberle, sitting as magistrate, defendant waived the appointment of counsel and preliminary hearing. Arraigned before Judge Keberle, defendant again waived counsel and entered a plea of guilty. Defendant was found guilty and sentenced to four years' imprisonment.

On May 15, 1969, a motion for leave to withdraw the guilty plea was filed. Grounds alleged were (1) the waiver of counsel was not knowingly and intelligently made; (2) the plea of guilty was not voluntarily entered. Following a hearing on the motion, the trial court made findings that the waiver and plea were knowledgeably and voluntarily entered, and denied the motion. By writ of error, this order and the judgment of conviction are challenged.

Roy T. Traynor, Wausau, for plaintiff in error.

Robert W. Warren, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, Daniel L. La Rocque, Marathon County Dist. Atty., Wausau, for defendant in error.

ROBERT W. HANSEN, Justice.

To prevail here, the defendant must establish that setting aside the judgment and order of the trial court and allowing the defendant to withdraw his guilty plea is '* * * necessary to correct a manifest injustice.' ¹ Where, as here, the record shows compliance with sec. 957.26(2), Stats., and an apparent waiver of counsel, the burden of proof is on the defendant to establish that his waiver of counsel was not made voluntarily, knowledgeably and intelligently. ² The burden to show that the plea of guilty is involuntary likewise rests with the defendant. ³ Such burden has not been met, and on this record it is difficult to see how it could have been. The temptation is strong to affirm without saying more. However, the competent and conscientious thoroughness of the trial court in establishing a factual basis for both waiver of counsel and plea of guilty merits a more extended comment and commendation. It makes, not a good target, but a good model.

WAIVER OF COUNSEL.

As to waiver of counsel, here are the bases touched in the court's interrogation of the defendant, at the initial hearing and at the arraignment.

CHARGE: 'There is a complaint that on the first day of December, 1968, in the City of Wausau, you unlawfully, feloniously, with intent to aid prisoners to escape from custody, introduced into the Marathon county jail where said prisoners were detained, hacksaw blades which were useful in making an escape contrary to section 946.44 of the Wisconsin Statutes.'

COUNSEL: 'Q. Do you have a lawyer? A. No, sir. Q. Do you intend to get one? A. No, sir. Q. Are you able to hire one? A. No, sir.'

RIGHTS: 'Q. Do you understand that under the law in Wisconsin you are entitled to be represented by a lawyer and, if you have no money or property to hire a lawyer, the Court could appoint one for you at county expense? A. Yes, sir.'

FEES: 'Q. You are further advised that, if you are convicted after a plea of guilty or a trial and if you should be placed on probation, the Court could order you to pay the reasonable attorney's fees it might allow if it did appoint an attorney for you. A. Yes, sir. Q. Do you understand what your rights are in that regard? A. Yes, sir.'

ADVICE: 'Q. Did anyone advise you not to ask the Court to appoint a lawyer for you? A. No, sir. Q. Did anyone make any promises or threats or use any force to get you not to ask the Court to appoint a lawyer for you? A. No, sir. A. And you are doing this freely and voluntarily? A. Yes, sir.'

SCHOOLING: 'Q. How far did you go to school, Mr. Drake? A. Second year high school. Q. Senior? A. Second year. Q. Have you ever been in a mental institution? A. No, sir.'

WORK: 'Q. What was your last work? A. Hammer Blow Tool. Q. In Wausau here? A. Yes, sir. A. How long did you work there? A. About four months.'

PENALTY: 'Q. This charge is a felony for which you could be sentenced to not more than five years in prison or a $500.00 fine or both * * * Do you understand that? A. Yes, sir.'

COUNSEL: 'Q. Sometimes an attorney might find circumstances that would provide a defense or other circumstances that might go to mitigate the penalty the Court might otherwise impose. Do you understand your rights in that respect? A. Yes, sir. Q. Nevertheless you wish to proceed at this time without counsel? A. Yes, sir.'

PLEA OF GUILTY.

As to the plea of guilty, at the time of arraignment the trial court asked the following additional questions:

THREATS: 'Q. Did anybody make any promises or use any threats or use any force to get you to plead guilty? A. No, sir.'

CHARGE: (After the reading of the information to the defendant.) 'Q. Do you understand what you are pleading guilty to? A. Yes, sir. Q. What? A. Taking hacksaw blades into the county jail.'

JURY: 'Q. And you understand that by pleading guilty there will not be a jury trial? A. Yes, sir. Q. In effect, you are waiving your rights to a jury trial by pleading guilty? A. Yes, sir. Q. And you are doing this freely and voluntarily? A. Yes, sir.'

PENALTY: 'Q. And knowing that you could be sentenced to five years in prison or fined $500.00 or both, do you want me to accept your plea of guilty? A. Yes, sir.'

SUMMARY: 'Q. I think the record should show that the Court, as I indicated this morning, has presided over matters where Mr. Drake has appeared before it as a defendant and I am satisfied that he understands his rights * * * and on his statement in open court I am going to receive his plea of guilty as being freely and voluntarily made by him at this time, is that right? A. Yes, sir.'

PRIOR APPEARANCES.

Defendant's brief contends that the trial court had a greater duty to 'scrutinize' the situation because the judge knew that the defendant, in his earlier skirmishes with the law, had been represented by counsel. The record appears to establish that the defendant had been in court eighteen times from 1947 through 1968, and had been represented by counsel on previous occasions as late as 1968. If this fact of prior involvements with the law is given weight, it leans against the position of the defendant. Familiarity may or may not breed contempt, but familiarity with court procedures strengthens the assurance that the defendant knew his exact situation and the alternatives open to him.

TERSENESS OF RESPONSES.

Defendant's brief stresses the fact that '* * * of the 55 answers given by the defendant on December 5, 1968, the defendant answered, 'Yes, sir,' or 'No, sir,' 41 times.' Brevity has been termed the soul of wit. Certainly it is not the foe of responsiveness. Where a Yes or No answer is all that is required by the form of the question, that is all that need be given. There is no basis in law or semantics for the idea that terseness erodes either completeness or persuasiveness of a reply. One President of the United States, Calvin Coolidge, walked the route of monosyllabic replies all the way to the White House.

DUTY TO LOCATE?

Defendant's brief claims that the trial court had an additional duty, left...