Drinkwater v. State, 75--181--CR

• Decision Date: 05 October 1976
• Docket Number: No. 75--181--CR,75--181--CR
• Citation: 73 Wis.2d 674,245 N.W.2d 664
• Parties: Willie Lee DRINKWATER, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.
• Court: Wisconsin Supreme Court

Page 664

245 N.W.2d 664

73 Wis.2d 674

Willie Lee DRINKWATER, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. 75--181--CR.

Supreme Court of Wisconsin.

Submitted Sept. 14, 1976.

Decided Oct. 5, 1976.

Howard B. Eisenberg, State Public Defender, and Robert J. Paul, Asst. State Public Defender, for plaintiff-in-error.

Bronson C. La Follette, Atty. Gen., and Thomas J. Balistreri, Asst. Atty. Gen., for defendant-in-error.

HANLEY, Justice.

Two issues are presented for review:

1. Was defendant denied equal protection of the law and thus penalized for exercising his sixth amendment right to a jury trial in that his co-defendant received a lesser sentence?

2. Is the defendant's sentence excessive and an abuse of discretion?

Disparity Between Sentences

Defendant contends that the trial judge punished him for exercising his right to a jury trial by sentencing him to two consecutive twenty-five year terms while his co-defendant received a twenty-five year term, a second twenty-five year term which was stayed, and fifteen years of consecutive probation.

Defendant's claim is based upon the rule of law that a defendant may not receive a harsher sentence solely because he availed himself of the constitutional right to a jury trial. United States v. Stockwell (9th Cir. 1973), 472 F.2d 1186, cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409; United States v. Wiley (7th Cir. 1960), 278 F.2d 500. This court recognizes this rule. Buckner v. State (1972), 56 Wis.2d 539, 550, 202 N.W.2d 406.

It is also well settled, however, that a mere disparity between a sentence imposed on a defendant who pleads guilty and on another who is convicted after trial is not enough to establish that the latter has been punished for exercising a constitutional right. United States v. Wilson (7th Cir. 1974), 506 F.2d 1252, 1259--60. This court has held on numerous occasions that the mere fact an accused who pleaded not guilty received a substantially greater sentence than an accomplice who pleaded guilty does not constitute a violation of due process or equal protection of the laws guaranteed by the constitution. Ocanas v. State (1975), 70 Wis.2d 179, 186--87, 233 N.W.2d 457; Jung v. State (1966), 32 Wis.2d 541, 145 N.W.2d 684. It likewise, therefore, may not establish that a defendant was punished for exercising his sixth amendment right to jury trial.

While equal protection of the laws requires substantially the same sentence for substantially the same case histories, it does not preclude different sentences for persons convicted of the same crime based upon their individual culpability and need for rehabilitation. Jung v. State, supra, at p. 548, 145 N.W.2d 684.

In Ocanas v. State, supra, this court stated 70 Wis.2d at p. 187, 233 N.W.2d at p. 462:

'(I)t has been made clear that a finding that there has been a denial of equal protection must rest upon a conclusion that the disparity was arbitrary or based upon considerations not pertinent to proper sentencing discretion. In short, insofar as the length of sentence (within the statutory maximum) is left to the sound discretion of the trial judge, there can be no denial of equal protection of the law unless that discretion has been abused.'

A review of the record here does not reveal that the trial court based its determination upon factors not proper or irrelevant to sentencing. The record shows that the disparity between the sentences in this case was the result of the trial judge's consideration of factors pertinent to sentencing procedure.

The trial judge found a difference in attitude and demeanor between the two defendants. He stated the plaintiff in error was 'vehement and angry and violent to the moment he walked from the courtroom,' while his co-defendant Young was co-operative and willing to testify. Young personally told the court that he was sorry the incident had occurred.

The trial judge at the hearing for the motion for modification of the sentences also made clear his impression that while Young had fired the shot that wounded Nienow, the defendant was the more culpable of the co-defendants. The trial judge noted that the defendant directed the firing of the near fatal shot by twice insisting that Young shoot Nienow. He noted that it was only after this insistence that Young did fire the gun. The judge also placed significance upon the fact that defendant attempted to shoot Nienow a second time when he was wounded and on bended knees.

The record established that the trial judge considered the difference between the past criminal records of the co-defendants. It is apparent that defendant's record is considerably longer than his co-defendant's. Defendant Drinkwater, as an adult, had been convicted of twelve other crimes, including burglary in 1970 and rape in 1973, and the trial judge referred to him as 'one of the most violent, hardened criminals who has ever appeared before me.' Young's record showed one prior offense, armed robbery.

The trial judge also expressed a belief that it would take longer to rehabilitate the defendant.

Each of the above factors may be properly considered in sentencing. State v. Tew (1972), 54 Wis.2d 361, 367--68, 195 N.W.2d 615.

The defendant contends that it was improper for the trial judge to take into consideration the fact that Young had pleaded guilty and was willing to testify in granting Young a lesser sentence. Defendant has quoted from this court's opinion in Jung v. State, supra, 32 Wis.2d at pp. 550--51, 145 N.W.2d 684, stating that a plea of guilty should not be a factor in giving a lenient sentence. He argues that if the judge did consider Young's guilty plea, then he, Drinkwater, was punished for exercising his right to a jury trial.

The state, on the other hand, has pointed out that this court has recognized plea bargaining as a legitimate technique in expediting criminal prosecutions in Armstrong v. State (1972), 55 Wis.2d 282, 198 N.W.2d 357, as has the United States Supreme Court in Santobello v. New York (1971), 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427.

It does not necessarily follow, however, that where a judge makes reference to a guilty plea as a consideration in granting a lesser sentence, he is actually punishing a defendant who stands trial. United States v. Lehman (7th Cir. 1972), 468 F.2d 93, cert. denied, 409 U.S. 967, 93 S.Ct. 273, 34 L.Ed.2d 232.

There is another line of reasoning which also supports the proposition that consideration by a sentencing judge of a plea of guilty as a factor in imposing a lenient sentence does not necessarily result in punishment of a defendant who elects to stand trial. The basis of this line of reasoning is that recognition of guilt is the first step toward rehabilitation. It has been held that if the statements of the sentencing judge, which relate the imposition of a lenient sentence to a guilty plea, merely reflect the judge's consideration of the extent of the defendant's rehabilitation at the time of the sentence, then no fault can be found of the judge. United States v. Floyd (2nd Cir. 1974), 496 F.2d 982, cert. denied, 419 U.S. 1069, 95 S.Ct. 654, 42 L.Ed.2d 664; Gollaher v. United States (9th Cir. 1969), 419 F.2d 520, cert. denied 396 U.S. 960, 90 S.Ct. 434, 24 L.Ed.2d 424.

The language in Jung v. State, supra, cited by the defendant for the proposition that pleas of guilty may not be considered in sentencing, recognizes this reasoning. In that case 32 Wis.2d at p. 550, 145 N.W.2d at p. 689, this court stated:

'Unless it can be shown in each case that a guilty plea is in fact evidence of repentance and demonstrates a readiness to accept responsibility for the criminal acts, it is difficult to see how a plea of guilty should be a factor in giving a lenient sentence.'

We are satisfied that the record discloses that the trial judge believed Young's guilty plea and co-operation did evidence repentance. In conjunction with Young's statement that he was sorry, such a conclusion is not unreasonable. The consideration of Young's guilty plea was not improper or irrelevant to sentencing.

The case at bar is easily distinguishable from United States v. Wiley, supra, upon which defendant relies. In Wiley the trial judge had flatly stated that he would not...