Ernst v. State

Decision Date30 September 1969
Docket NumberNo. S,S
Citation43 Wis.2d 661,170 N.W.2d 713
PartiesLyle Lester ERNST, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 46.
CourtWisconsin Supreme Court

On December 4, 1964, a warrant was issued in which it was alleged that Lyle Lester Ernst (hereinafter the 'defendant') had committed seven burglaries, one attempted burglary, one offense of going armed with a concealed and dangerous weapon and one offense of reckless driving. Defendant was also charged under the repeater statute. His prior record included convictions for burglary, going armed with a concealed and dangerous weapon and traffic offenses.

That same day the defendant appeared before the magistrate, Judge CALLOW. The charges were read and the defendant expressed understanding of them. The defendant was informed of his right to counsel and indicated he did not desire counsel. Although the defendant sought to merely throw himself at the mercy of the court, he finally accepted the court's repeated attempts to appoint counsel for him.

On December 7, 1964, the defendant, in the presence of his court-appointed counsel, signed a statement whereby he expressed a desire to plead guilty to the information. He then appeared with his attorney, again waived preliminary hearing and pleaded guilty to each of the ten counts. The defendant, in response to questions by the court, indicated that there had been no threats or promises made to induce his pleas of guilty and that they were freely and voluntarily entered. The pleas were then accepted.

Approximately one year after his conviction and sentencing, thd efendant, through a new attorney moved to withdraw his guilty pleas, claiming that upon arrest he had been held incommunicado and subjected to unlawful searches and seizures.

The trial court denied defendant's motion to vacate the pleas of guilty and to grant a new trial. Defendant appeals from the order denying the motion.

Additional facts will be stated in the opinion.

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

Robert W. Warren, Atty. Gen., William A. Platz, and Betty R. Brown, Asst. Attys. Gen., Madison, Roger P. Murphy, Wauke Co. Dist. Atty., Waukesha, for defendant in error.

HANLEY, Justice.

The sole issue presented on this review is whether the trial court erred in denying defendant's postconviction motion to withdraw his pleas of guilty.

In State v. Reppin (1967), 35 Wis.2d 377, 385, 151 N.W.2d 9, this court adopted the 'manifest injustice' test, whereby the defendant should be permitted to withdraw his plea of guilty if he is able to prove by clear and convincing evidence that his plea was made under any of the following nonexhaustive situations:

"(1) he was denied the effective assistance of counsel guaranteed to him by constitution, statute, or rule;

"(2) the plea was not entered or ratified by the defendant or a person authorized to so act in his behalf;

"(3) the plea was involuntary, or was entered without knowledge of the charge or that the sentence actually imposed could be imposed; or

"(4) he did not receive the charge or sentence concessions contemplated by the plea agreement and the prosecuting attorney failed to seek or not to oppose these concessions as promised in the plea agreement."

The defendant contends that since he has shown by clear and convincing evidence that situations (1) and (3) existed at the time of his plea, the trial court erred in denying his motion to withdraw the pleas.

In claiming that he was denied effective assistance of counsel, he asserts that his attorney, who had conferred with him for only five minutes, failed to inform him of his constitutional rights. He points to the fact that he was not informed of the possibility of excluding an allegedly coerced confession and certain evidence which he now claims was obtained through an unlawful search and seizure.

The state argues that the allegations as to constitutional errors are immaterial and points to Hawkins v. State (1965), 26 Wis.2d 443, 132 N.W.2d 545, which held that where a plea of guilty is voluntarily and understandingly entered by one who is assisted by counsel, objections to alleged violations of constitutional rights which occurred prior to the plea are waived even though such violations were a direct cause of entering the guilty plea. The circumstances under which the same would be true if one were not represented by counsel were not delineated, but in State v. Biastock (1969), 42 Wis.2d 525, 532, 167 N.W.2d 231, this court stated that

'* * * if a defendant was not fully aware of a potential challenge to possible violations of his constitutional rights and his plea of guilty was the direct result of and caused by these possible constitutional violtions, Hawkins would permit the defendant, in this limited situation, to raise such constitutional objections in the petition for the withdrawal of the guilty plea.'

In Biastock there was no allegation that the accused was unaware of possible violations of his constitutional rights at the time he pleaded guilty. The court therefore refused to allow him to raise such issues in his motion to withdraw the plea. In the instant case such issues were properly raised in the motion because the defendant asserted that by virtue of his 'ineffective' counsel he was 'unaware' of the potential challenge to the admissibility of the allegedly coerced confession and the tainted evidence. If in fact he had been denied a relevant constitutional right, he would have been able to withdraw his plea as of right. Creighbaum v. State (1967), 35 Wis.2d 17, 29, 150 N.W.2d 494.

Although this defendant may well have been unaware of the potential challenges to possible constitutional violations, the fact that an attorney does not discuss them does not in all cases render one 'unaware.' Subsequent to the hearing of the defendant's motion the trial court issued its findings of fact and conclusions of law in which it noted that '* * * the extensive record of the defendant justifies the Court in concluding that he was knowledgeable as to legal procedures involving criminal offenses.' However, assuming Arguendo that he was unaware of potential challenges to constitutional violations, the court which heard the motion found that '* * * the testimony of the defendant that he was denied his constitutional rights is without substance.'

This court has continually stated that it would not upset factual findings of the trial court unless contrary to the great weight and clear preponderance of the evidence. Schroedel Corp. v. State Highway Comm. (1968), 38 Wis.2d 424, 157 N.W.2d 562. Upon presentation of the motion the trial court heard the defendant's direct testimony as well as his cross-examination. Having heard such testimony the court found '* * * From the record it is apparent that the defendant's memory is dimmed by the passage of time and that his testimony at this hearing is not reliable. * * *'

In asserting that he has met his burden of proof as to his allegations of constitutional violations, the defendant points to the fact that the state failed to present any witnesses to testify at the hearing of his motion. In Mueller v. State (1966), 32 Wis.2d 70, 145 N.W.2d 84, however, it was stated that a court is not bound to accept the accused's contentions as constituting facts.

'Questions of fact are for the trial court to determine and it is not required to give full credence to the testimony of accused. * * *' 22 C.J.S. Criminal Law § 421(5), p. 1161.

Just as the trial court is not obligated to accept the defendant's statements as verities, this court is not obligated to upset the findings of the trial court and thereby under Creighbaum allow the defendant to withdraw his plea as of right.

Regardless of any actual constitutional violations, the defendant apparently argues that an attorney's failure to advise as to the admissibility of suspected evidence renders him 'ineffective' within the meaning of situation (1) of the 'manifest injustice' test. Although not knowing the admissibility of certain evidence may diminish the intelligence with which the defendant enters his plea, the state's position is that

'When defense counsel makes sure that the defendant understands the charges, is guilty of them, wishes to plead guilty to them and understands the possible consequences of doing so he has performed his duty. He has no obligation to try to talk a guilty defendant into pleading not guilty and it is only when a defendant wishes to plead not guilty that questions about the admissibility of evidence at a trial arise.'

This position appears to be well taken when viewed in light of the tremendous burden which would be imposed upon court-appointed attorneys if they were required to make a detailed study of the evidence in order to withstand the accusation of 'ineffectiveness' which would thereby stain their professional reputations and automatically vitiate the pleas entered on behalf of their clients.

In State v. Willing (1968), 39 Wis.2d 408, 159 N.W.2d 15, this court held that to establish 'ineffective' assistance of counsel, the defendant must show that the representation was of such low competence as to constitute no representation at all. There, as in the case at bar, the attorney conferred with his client for only a brief time (five to ten minutes), yet the court held this was insufficient to establish that there was 'no representation at all.' In so holding the court stated that

'* * * Before the plea was entered, retained counsel conferred with the defendant. He explained the charges to the defendant and was of the opinion that he understood them. In the conference, they discussed the situation and counsel was convinced of defendant's guilt and was satisfied that defendant was equally convinced of his own guilt. Possible penalties were discussed. The defendant knew that upon conviction he could be sentenced to imprisonment in the state prisons * * *. Coun...

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