Garski v. State, 75--808--CR
| Decision Date | 06 January 1977 |
| Docket Number | No. 75--808--CR,75--808--CR |
| Citation | 75 Wis.2d 62,248 N.W.2d 425 |
| Court | Wisconsin Supreme Court |
| Parties | David L. GARSKI, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
Writs of error issued to review a judgment of conviction and sentence entered September 3, 1975, and an order denying a motion to modify certain conditions of probation entered on January 29, 1976.
Howard B. Eisenberg, State Public Defender (argued), on brief, for plaintiff in error.
Edward S. Marion, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.
On June 17, 1975, David L. Garski, plaintiff in error (hearinafter defendant) pleaded guilty in the county court of Marathon county to one count of theft in violation of sec. 943.20, Stats., and one count of forgery in violation of sec. 943.38(1). The guilty plea resulted from an agreement with the district attorney whereby the defendant would plead guilty to the two counts; three other forgery charges would be read into the record for sentencing purposes; and the district attorney would recommend probation conditioned on restitution of amounts involved in all counts, both charged and read in. The alleged offenses occurred between April and June of 1975.
The guilty plea was accepted and the defendant was convicted of the two charges. Sentence was withheld and the defendant was placed on probation for a period of two years with the conditions of probation that he pay costs and attorney's fees and make restitution on the two counts charged as well as on the read-ins.
Approximately two months later, on August 13, 1975, the defendant was charged with three new counts of forgery in violation of sec. 943.38(1), Stats., alleged to have occurred on or about July 25, 1975, in Marathon county. At the time, there were pending against the defendant in Oneida county, three other charges of forgery, in violation of sec. 943.38(2), alleged to have occurred in late June and early July, 1975, in Oneida county.
On August 28, 1975, an agreement was reached between the defendant and the district attorney whereby the Marathon county and Oneida county charges would be consolidated; the defendant would plead guilty to one Marathon county and one Oneida county charge; and the other four charges would be dismissed, but would be read into the record for sentencing purposes.
When accepting the defendant's guilty plea, the trial court ensured that the defendant knew that the district attorney would make no recommendations with respect to sentencing; that the defendant knew and understood the full implication of his plea, including the maximum fine and imprisonment that could be imposed; and that the defendant knowingly and voluntarily entered the guilty plea.
The guilty plea was accepted and the defendant was convicted. On the basis of the new conviction, and following the defendant's waiver of a revocation hearing, the trial court revoked the probation previously imposed on June 17, 1975, and proceeded with sentencing on a total of one theft and three forgery counts.
The trial court imposed sentences as follows: On the theft conviction, imprisonment for a term of not to exceed three years; on the June, 1975, Marathon county forgery conviction, imprisonment for an indeterminate term of not to exceed two years, such sentence to run consecutive to the sentence imposed on the theft conviction; on the September, 1975, Marathon county forgery conviction, imprisonment for an indeterminate term of not to exceed four years, such sentence to run concurrently with the two sentences previously imposed; and on the September, 1975, Oneida county forgery conviction, sentence was withheld and the defendant was placed on probation subject to the following terms and conditions as ordered by the trial court:
'. . . following your release from the State Prison System, you be placed on probation for a period of three years and as a condition of your probation during that three year period, Mr. Garski, you will be required to make full restitution, not only for the checks that are presently before the Court on the current information, but for the checks involved in the four counts which were dismissed in the current information, together with any restitution that may be required as a result of the felony theft or the prior forgery, together with the court costs and attorney's fees in the prior action and also the court costs and attorney's fees for the present action. . . .'
On December 26, 1975, the defendant filed a motion pursuant to the provisions of secs. 973.09(3) and 974.06(1), Stats., to modify the conditions of probation imposed so as to require restitution only on the one count for which the defendant was actually placed on probation. The motion was denied, and this review follows.
ISSUES.
Four issues are presented by the facts of this case:
1. Did the trial court err in imposing a term of probation to run consecutive to a term of imprisonment?
2. Did the trial court abuse its discretion in requiring the defendant to make restitution for charges dismissed in plea arrangement?
3. Did the trial court exceed its statutory authority or abuse its discretion in requiring the defendant to make restitution for the three charges for which he was sentenced?
4. Is the trial court, under these circumstances, required to inform the defendant of possible probation conditions prior to accepting a guilty plea?
PROBATION CONSECUTIVE TO IMPRISONMENT.
The defendant advances this issue by arguing that since the trial court found the defendant did not meet the criteria for the imposition of probation on three of the convictions, two of which were similar to the one for which he was placed on probation, it was thus inconsistent for the trial court to order probation on the fourth conviction.
The defendant, therefore, draws the conclusion that the only possible basis for the ordering of probation consecutive to the sentences was to collect restitution and that such is not a proper use of probation. The defendant argues that under these circumstances, the ordering of a term of probation consecutive to the term of imprisonment, constitutes an abuse of discretion. Defendant would not, however, have this court vacate the probation if an abuse of discretion were established. Rather, the defendant would have this court merely review and modify the conditions of probation.
The trial court possessed the statutory authority to impose, under these circumstances, a term of probation to run consecutive to a sentence of imprisonment and to impose on that probation any reasonable and appropriate conditions. Sec. 973.09(1), Stats., authorizes just such a disposition:
This court has held that the granting of probation is a matter of grace or privilege and not a right. State v. Gerard, 57 Wis.2d 611, 619, 205 N.W.2d 374 (1973); State ex rel. Johnson v. Cady, 50 Wis.2d 540, 545, 185 N.W.2d 306 (1971); Dobs v. State, 47 Wis.2d 20, 25, 176 N.W.2d 289 (1970); Brozosky v. State, 197 Wis. 446, 452, 453, 222 N.W.2d 311 (1928). In arriving at some reasonable basis for allowing trial courts to extend the privilege of probation to defendants, this court in Bastian v. State, 54 Wis.2d 240, 248, 194 N.W.2d 687 (1972), specifically adopted Standard 1.3 of the American Bar Association's Standards Relating to Probation (Approved Draft 1970), which provides:
'1.3 Criteria for granting probation.
'(i) confinement is necessary to protect the public from further criminal activity by the offender; or
'(ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or
'(iii) it would unduly depreciate the seriousness of the offense if a sentence of probation were imposed.
'(b) Whether the defendant pleads guilty, pleads not guilty or intends to appeal is not relevant to the issue of whether probation is an appropriate sentence.'
Under the provisions of Standard 1.3(a), in reaching a decision to grant probation, a trial court may consider the totality of the circumstances surrounding the commission of the crime or crimes, and the nature and extent of treatment which would best serve to rehabilitate the offender.
While restitution may well have been one of the trial court's considerations in imposing probation for the fourth count, the record supports the conclusion that the trial court was also interested in the defendant's rehabilitation. At the postconviction motion hearing, the trial court stated:
'. . . The Court . . . attempted to secure restitution and possibly some rehabilitory efforts by the Probation Officer following his release, when the Court could have just as well exercised its discretion and imposed another consecutive sentence.'
It is entirely consistent for a trial court, faced with four separate charges and four separate convictions, to conclude that a sentence of imprisonment would be appropriate for three of those four charges, followed by a consecutive term of...
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