Jung v. State

• Decision Date: 04 November 1966
• Parties: Phillip H. JUNG, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 684

145 N.W.2d 684

32 Wis.2d 541

Phillip H. JUNG, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Nov. 4, 1966.

Rehearing Denied Jan. 3, 1967.

Lawrence D. Gillick, Milwaukee, Edward F. Neubecker, Milwaukee, of counsel, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., Robert E. Sutton, Asst. Dist. Atty., Milwaukee, for defendant in error.

HALLOWS, Justice.

Jung raises two issues on this appeal: (1) Did the trial court abuse its discretion in granting the state's motion to consolidate the three cases for trial over Jung's objection, and (2) did the trial court deny Jung the equal protection of the laws guaranteed by the Fourteenth amendment to the United States Constitution by the sentences it imposed upon him? On the first argument, Jung seeks a new trial. His second argument, if successful, will result only in resentencing. While the severity and the disparity of a sentence are factors which might be considered in granting a new trial in the interest of justice, the severity of a sentence or its disparity with other sentences standing alone does not ground a new trial because they do not relate to the merits of the conviction. Such error as there may be in such a sentence can be corrected through the process of re-sentencing by the trial court. State v. Tuttle (1963), 21 Wis.2d 147, 151, 124 N.W.2d 9; State v. Woodington (1966), 31 Wis.2d 151, 183, 142 N.W.2d 810.

The record discloses this is a question of consolidation of three cases for trial, although the state argues in its brief as if the problem was a question of severance. However, we think the problems are basically the same and the same principles are applicable. Whether three cases should be consolidated for trial or whether three jointly-accused defendants should receive separate trials is not a question of the trial court's power but of its discretion. A trial court has power to try cases together when the defendants are charged with the same offenses arising out of the same transaction and provable by the same evidence. State ex rel. Nickl v. Beilfuss (1962), 15 Wis.2d 428, 113 N.W.2d 103. Whether such defendants should be tried separately or together is a matter resting in the discretion of the trial court. Cullen v. State (1965), 26 Wis.2d 652, 133 N.W.2d 284, certiorari denied Howard v. Wisconsin (1965), 382 U.S. 863, 86 S.Ct. 126, 15 L.Ed.2d 101; 23 C.J.S. Criminal Law, § 931, p. 677. On appellate review, this discretion is not the subject of correction in the absence of abuse. State v. Nutley (1964), 24 Wis.2d 527, 129 N.W.2d 155; Mandella v. State (1947), 251 Wis. 502, 29 N.W.2d 723; Pollack v. State (1934), 215 Wis. 200, 253 N.W. 560. What constitutes an abuse of discretion, of course, depends upon the facts of each case and although a single trial may be desirable from the standpoint of economical or efficient criminal procedure, the right of a defendant to a fair trial must be the overriding consideration. United States v. Echeles (7th Cir. 1965), 352 F.2d 892, 896.

When antagonistic defenses are asserted by codefendants, the demands of a fair trial require that the cases be tried separately because the defendant should not be forced to face the double burden of having to meet the attack both of the prosecutor and of his codefendant. State v. Nutley, Mandella v. State, and Pollack v. State, supra.

On this ground Jung argues the trial court abused its discretion in ordering his case consolidated with that of Watkins and Miles. At the trial, Jung defended on the ground he did not know the other defendants were planning a robbery and was not aware of what was happening on the night of May 5, 1964, until after the robbery had taken place when he was asked to drive the wounded Miles to a hospital. As his defense, Watkins claimed he became a part of the conspiracy to perpetrate the armed robbery in order to aid the police in the arrest of the members of the gang. These defenses are not intrinsically antagonistic to each other. It is true, the testimony in support of Watkins' defense indicated that Jung was present while the robbery was being planned, and that Jung's role was to be that of the driver of the get-away car, the other participants to ride in the trunk and be warned by certain signals if Jung were stopped by the police. But, when this evidence was introduced, Jung might have made a motion or a request for a severance but he did not. State v. Nutley, supra, 24 Wis.2d at p. 544, 129 N.W.2d 155.

The trial court's alleged abuse of its discretion in consolidating the cases must be viewed in light of the facts presented to it at the time the objection was made to the consolidation. The objection was in general terms, stated no reasons, and did not indicate the testimony of Watkins or Miles which might be prejudicial to Jung. An objection to consolidation should set forth the grounds relied on and preferably should be supported by affidavit. There was no abuse of discretion in consolidating the cases for the purpose of trial and we cannot find such abuse because it ultimately turned out some unknown prejudicial testimony was introduced.

Jung next contends his right to equal protection of the laws under the Fourteenth amendment was violated in his sentencing and therefore the trial court abused its discretion. We think a violation of a constitutional right in sentencing, even though the sentence is within the statutory limits for the offense, is error. An objection to a sentence on constitutional grounds is directed not to this court's superintending power over a trial court's administration of criminal justice, but to our appellate review power.

At common law, and until 1907 in England, an appellate court had no power of any kind to review a sentence within the maximum limits and until recently this theory was followed in this state. State v. Garnett (1943), 243 Wis. 615, 11 N.W.2d 166; State v. Sullivan (1942), 241 Wis. 276, 5 N.W.2d 798; State v. Michaels (1938), 226 Wis. 574, 277 N.W. 157. However, in State v. Tuttle (1963), 21 Wis.2d 147, 124 N.W.2d 9, this court departed from that view and recognized it had appellate power to review sentences. While we did not characterize the nature of the power, we pointed out the power existed, and its exercise would be governed by a strong policy against interference with the discretion of the trial court. In Tuttle we cited United States v. Wiley (7th Cir. 1960), 278 F.2d 500, but it is to be noted in that case that the power there exercised was the appellate court's 'supervisory control of the district court, in aid of its appellate jurisdiction.' 278 F.2d at 503.

Usually questions involving equal protection of the laws in relation to criminal punishment are in the context of statutes providing for different punishments for different classes of offenders. Rubin, Disparity and Equality of Sentences--A Constitutional Challenge, 40 F.R.D. 55, 64 (1966). In this context it has been held equal protection of the laws requires that in the administration of criminal justice no one shall be subjected for the same offense to a greater or different punishment than that to which other persons of the same class are subjected. 21 Am.Jur.2d Criminal Law, p. 545, sec. 582. However, this does not mean that persons convicted of the same crime cannot be given different sentences depending upon their individual culpability and need for rehabilitation. Rubin, The Law of Criminal Correction, ch. 4, p. 115, sec. 4.

In reviewing a sentence for an abuse of discretion, we start with the presumption that the trial court acted reasonably and with the requirement that the complainant must show some unreasonable or unjustifiable basis in the record for the sentence complained of. Consequently, in the instant case there must be a showing that in determining the sentence of Jung the trial court based its determination upon factors not proper in or irrelevant to sentencing, or was influenced by motives inconsistent with impartiality. We must acknowledge that the standards guiding the imposition of criminal sentences and for testing the propriety of a sentence are not universally agreed upon. ¹

Jung argues his constitutional right to equal protection of the laws was violated, since he was given a more severe sentence because he pleaded not guilty and stood trial, and that the disparity of such sentence with that of Thomas and Venson was not justified by his role in the crime or any indicated need for rehabilitation. Jung, as did Miles and Watkins who stood trial with him, received the maximum sentence ² of 30 years for armed robbery and consecutively the maximum sentence of 30 years for attempted murder, while Thomas on his plea of guilty received two concurrent 25-year sentences. Venson likewise received 25 years for armed robbery and was never charged with attempted murder.

On the issue of culpability, Jung points out he played a lesser role as the driver of the get-away car than Thomas who helped to plan the robbery and actually entered the supermarket with a sawed-off shotgun. Either Venson or Watkins originated the idea of the robbery and both of them cased the store on the morning of the day of the crime. Venson enlisted Thomas' help in the plot. The guns, furnished by Thomas, were transported from Racine in Venson's car. On this basis it is claimed that Jung's part in the robbery was no greater, and considerably less than, that of Thomas and Venson.

Jung had no prior criminal record and was a married man with five children. The record does not show whether Thomas and Venson had prior criminal records, but at the time of their sentencing Thomas also pleaded guilty to other unrelated counts of robbery and receiving stolen goods for which he received concurrent sentences of 20 and 25 years. Venson pleaded guilty to six other unrelated crimes including armed robbery and received various sentences of 20...