Hanneman v. State
| Decision Date | 30 March 1971 |
| Docket Number | No. S,S |
| Citation | 50 Wis.2d 689,184 N.W.2d 896 |
| Parties | Gerald HANNEMAN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 50. |
| Court | Wisconsin Supreme Court |
The plaintiff in error, hereinafter defendant, was convicted on his plea of guilty to two counts of burglary, in violation of sec. 943.10(1)(a), Stats. He was sentenced to a term of six years on each count, the sentences to run concurrently. The defendant's motion to withdraw his pleas and for a trial were denied. Writs of error were issued to review the judgments of conviction and the order denying the motion.
Stanley F. Hack, Milwaukee, for plaintiff in error.
Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Milwaukee, for defendant in error.
The sole question presented in this case is whether the trial court abused its discretion, or erred as a matter of law, in imposing sentence.
One of the burglaries to which the defendant pleaded guilty involved a co-defendant, Gary Babian. By agreement, two other burglaries involving the defendant and Babian were read-into the record for consideration in sentencing.
The second burglary to which the defendant pleaded guilty was committed by the defendant alone, and occurred while he was free on bond after his arrest for the prior offenses.
After the proper procedures had been followed for receiving the plea of guilty, the trial court asked the defendant if he wished to testify, and his counsel replied that he did not. Counsel then advised the court that Babian, who had participated in the first-charged burglary and the two read-in burglaries, had been given a suspended sentence and one year under the Huber Act (apparently meaning sec. 56.08, Stats.). The court responded, stating that it did not follow the practice of extending probation to defendants who did not take the witness stand when the only question before the court was sentence. Defendant's counsel then informed the court the defendant had been in custody eight months and urged probation. The state asked for a lengthy sentence, 1 and the court reiterated its position in regard to not considering probation for a defendant who, by his own choice, did not make himself available to the court at the time of sentencing for questioning concerning his previous history. The defense counsel then offered to make the defendant available, and the trial court refused the offer.
The defendant now asks for remand for resentencing, or reversal for trial, contending that the trial court refused to grant probation because the defendant failed to testify, and thus violated his privilege against self-incrimination guaranteed by the fifth and fourteenth amendments.
If the foregoing facts constituted the whole story, we would agree with the defendant and remand the case for resentencing. However, this is not the entire story.
It is well settled that a sentence imposed may not be based on constitutionally invalid grounds, for example, because the defendant has exercised his right to a trial by jury. United States v. Wiley (7th Cir. 1960), 278 F.2d 500. See also Jung v. State (1966), 32 Wis. 541, 145 N.W.2d 684. However, in this case there was no violation of the defendant's constitutional rights. The defendant admitted his guilt by entering a plea of guilty to the crimes charged. A plea of guilty is an admission of guilt and a waiver of the privilege against self-incrimination. See Anno., Plea of Guilty of Conviction as Resulting in Loss of Privilege Against Self-incrimination as to Crime in Question, 9 A.L.R.3d 990.
This court has held that the trial court abuses its discretion where it imposes a sentence on the basis of improper factors. In Jung v. State, supra, p. 548, 145 N.W.2d 684, 688, the court stated:
* * *'
See also State v. Tuttle (1963), 21 Wis.2d 147, 124 N.W.2d 9; Embry v. State (1970), 46 Wis.2d 151, 174 N.W.2d 521; McCleary v. State (1971), 49 Wis.2d 263, 182 N.W.2d 512.
It would be an abuse of discretion for the trial court to deny probation only because the defendant refused to testify at a hearing on sentencing. If the defendant refused to testify at postconviction hearing on sentencing and the trial court was of the opinion that more information about the defendant's background was necessary before imposing sentence, a pre-sentence investigation could always be ordered. 2
Also, under the facts in this case, we do not consider the trial...
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...for which he pled no contest and had been convicted, because the privilege continues at least until sentencing. In Hanneman v. State, 50 Wis.2d 689, 691, 184 N.W.2d 896 (1971), the trial court stated that it did not follow the practice of extending probation to defendants who did not take t......
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