Hatcher v. State

• Decision Date: 06 June 1978
• Docket Number: No. 76-344-CR,76-344-CR
• Parties: Herman HATCHER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 320

266 N.W.2d 320

83 Wis.2d 559

Herman HATCHER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 76-344-CR.

Supreme Court of Wisconsin.

Submitted on Briefs May 3, 1978.

Decided June 6, 1978.

The plaintiff in error, Herman Hatcher (hereinafter defendant) was charged with armed robbery in violation of sec. 943.32(1) and (2), Stats. At arraignment, the defendant pleaded not guilty and demanded a jury trial. About fourteen months and several reassignments later, the defendant demanded a speedy trial. A trial to the jury was held three months later, but the jury could not reach a unanimous verdict. About twenty months after the issuance of the complaint and before a second trial could be had, the defendant entered a plea of guilty pursuant to a plea negotiation. The trial court accepted the plea and sentenced the defendant to nineteen years at the Wisconsin State Prison at Waupun, where the defendant was then serving a seven year term for a conviction on an unrelated offense.

The defendant subsequently brought motions to withdraw his guilty plea and, alternatively, to amend the sentence. Both motions were denied, and writs to review the judgment of conviction and post-judgment order denying defendant's motions were issued.

Howard B. Eisenberg, State Public Defender, and Barbara B. Berman, Asst. State Public Defender, on brief for plaintiff in error.

Bronson C. La Follette, Atty. Gen., and Michael R. Klos, Asst. Atty. Gen., on brief for defendant in error.

HANLEY, Justice.

The issue presented on this appeal is whether the trial court erred in refusing to permit the defendant to withdraw his guilty plea on the grounds that the defendant had been denied his constitutional right to a speedy trial.

It is a general principle of criminal law that a guilty plea, voluntarily and understandingly made, constitutes a waiver of various defects and defenses arising from events preceding the plea. Among the defenses which are waived by a guilty plea are those which may be based upon constitutional grounds. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). This court has applied this rule to hold that a guilty plea, properly made, will waive a defense based upon the right to a speedy trial. Foster v. State, 70 Wis.2d 12, 233 N.W.2d 411 (1975).

Since a guilty plea acts to cut off a defendant's right to assert various constitutional privileges and the defenses based thereon, this court, in accordance with the mandate of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), has held that in accepting a guilty plea a trial court must personally establish a record which demonstrates that the defendant's plea was voluntarily and knowingly made. Ernst v. State, 43 Wis.2d 661, 170 N.W.2d 713 (1969). To do this, trial courts were instructed to interrogate the defendant as to the defendant's education and general comprehension, his understanding of the nature of the crime with which he is charged and the range of punishment it carries. The trial court must also ascertain whether any promises or threats have been made to the defendant in connection with his appearance, refusal of counsel, or proposed plea of guilty; that the defendant understands that if he does not have counsel and cannot afford one, counsel will be provided; and that the defendant understands that a lawyer might discover defenses or mitigating circumstances which might not be apparent to him. The trial court must also satisfy itself that the conduct to which the defendant admits constitutes the offense charged or an included one to which he pleads guilty. Ernst v. State, supra 43 Wis.2d at 674, 170 N.W.2d 713.

Once a defendant has pleaded guilty, and thus waived these various defenses and constitutional challenges, he will be permitted to withdraw that plea only under certain circumstances. In State v. Reppin, 35 Wis.2d 377, 151 N.W.2d 9 (1967), this court adopted the "manifest injustice" test under which a defendant will be entitled to withdraw a previous guilty plea only when he is able to show that his plea was made under any of the following or similar situations:

" '(1) he was denied the effective assistance of counsel guaranteed to him by constitution, state, 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.' " State v. Reppin, supra at 385, n. 2, 151 N.W.2d at 14; See also Ernst v. State, supra, 43 Wis.2d at 666, 170 N.W.2d 713.

This list is not exhaustive, but the defendant has the burden of proving grounds for withdrawal of his guilty plea by clear and convincing evidence. State v. Carlson, 48 Wis.2d 222, 230, 179 N.W.2d 851 (1970); Reiff v. State, 41 Wis.2d 369, 164 N.W.2d 249 (1969). Ordinarily, the question of withdrawal of a guilty plea under the manifest injustice test is addressed to the discretion of the trial court, and ordinarily the court's decision will not be disturbed on appeal unless an abuse of discretion is shown. Creighbaum v. State, 35 Wis.2d 17, 29, 150 N.W.2d 494 (1967).

There is an exception to this rule, however, so far as a motion to withdraw a guilty plea poses a question addressed to the discretion of the trial court. Under this exception, where a defendant establishes a denial of a relevant constitutional right, he may withdraw his guilty plea as a matter of right. Creighbaum v. State, supra at 29, 150 N.W.2d 494; See also, Ernst v. State, supra, 43 Wis.2d at 667, 170 N.W.2d 713. To withdraw a plea as a matter of right on constitutional grounds, a defendant must show (a) that a violation of a constitutional right has occurred; (b) that this violation caused him to plead guilty; and (c) that at the time of his plea he was unaware of the potential constitutional challenges to the case against him because of the violation. Edwards v. State, 51 Wis.2d 231, 234, 186 N.W.2d 193 (1971).

Regardless of which approach is utilized, the fact that a defendant has waived a defense, constitutional or otherwise, by entering a plea of guilty is not dispositive of his right to seek the withdrawal of the plea; "The question on a motion to withdraw a plea is not whether the accused has waived his rights but whether he should be relieved from such a waiver." Brisk v. State, 44 Wis.2d 584, 588, 172 N.W.2d 199, 201 (1969).

Here, the defendant structures his arguments in a manner which was suggested by this court in Foster v. State, supra. In Foster, the defendant sought to collaterally attack his conviction on the grounds that he had been denied a speedy trial. The defendant had been convicted after entering a guilty plea. Though the defendant, together with counsel, had raised the issue before pleading guilty, he neither appealed the judgment of conviction nor moved the trial court to withdraw the plea. On appeal, this court found no merit in the defendant's speedy trial claim, but nevertheless, in closing dicta, indicated that such an assertion would more properly "provide a basis for a claim that the plea of guilty was not knowledgeably entered, since it was based on a misunderstanding as to the effect of a plea of guilty on the right to pursue, on appeal, a challenge on the speedy trial ground." Foster v. State, supra, 70 Wis.2d at 21, 233 N.W.2d at 415.

The defendant argues that the record does not support a finding that his plea of guilty was knowingly and voluntarily waived because it does not indicate that he was informed, either by his attorney or by the trial court, that the right to pursue his challenge to the proceeding on speedy trial grounds would be waived by entering such a plea.

Because the defendant asserts the violation of a constitutional right as the basis of his request to withdraw the guilty plea, the issue here must be resolved under the withdrawal as a matter of right test set forth in Edwards v. State, supra. Consequently, it must first be determined whether the defendant suffered a violation of a constitutional right.

The test for determining whether there has been a deprivation of the right to speedy trial was set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) and followed by this court in Day v. State, 61 Wis.2d 236, 242-47, 212 N.W.2d 489 (1973). Under the test enunciated in these cases, four factors are considered: (1) the length of the delay; (2) the reason for the delay; (3) the assertion, if any, by the defendant for a speedy trial; and (4) the prejudice to the defendant. See also, Hipp v. State, 75 Wis.2d 621, 625, 250 N.W.2d 299 (1977). The first factor presents a threshold question is the length of delay presumptively prejudicial which must be answered in the affirmative before inquiry can be made into the remaining three factors.

A chronology of the events of this case runs from April 4, 1974 until December 16, 1975. The state contends that this chronology may be divided into three distinct periods. The first period the five months between the filing of the complaint on April 4, 1974 and the return of the case to Judge JOHN F. FOLEY on September 4, 1974 was necessary for the orderly preparation of the case for trial and thus not delay which could be charged against either the state or defendant. Scarbrough v. State, 76 Wis.2d 87, 101, 250 N.W.2d 354 (1977); Norwood v. State, 74 Wis.2d 343, 354-55, 246 N.W.2d 801 (1976). The second period the twelve months between September 4, 1974 and the defendant's trial on September 15-17, 1975 is conceded to be delay which must be charged against the state. The third period the three months between September 17...