Kelley v. State, S

• Decision Date: 28 March 1972
• Docket Number: No. S,S
• Parties: Jack E. KELLEY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in error. tate 33.
• Court: Wisconsin Supreme Court

Page 457

195 N.W.2d 457

54 Wis.2d 475

Jack E. KELLEY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in error.

No. State 33.

Supreme Court of Wisconsin.

March 28, 1972.

January 27, 1969, following a plea of guilty, plaintiff in error (hereinafter defendant) was convicted of twelve counts of forgery, in violation of sec. 943.38(2), Stats. He was sentenced to twelve ten-year concurrent terms.

Defendant's motion for postconviction relief pursuant to sec. 974.06, Stats., wherein he alleges (1) the trial court lacked jurisdiction to impose sentence, and (2) the sentence imposed was excessive, was denied.

A writ of error issued to review the order denying defendant's motion for postconviction relief.

Jack E. Kelley, pro se.

Robert W. Warren, Atty. Gen., Michael R. Klos, Asst. Atty. Gen., Madison, for defendant in error.

CONNOR T. HANSEN, Justice.

Two issues are raised by the defendant: (1) Did the trial court lose jurisdiction to sentence the defendant on his plea of guilty by failing to expressly pronounce guilt; and (2) did the trial court abuse its discretion in sentencing? A third issue relating to modification of the sentence is considered as a result of the examination of the record by this court.

DID THE TRIAL COURT LACK JURISDICTION TO IMPOSE SENTENCE?

The defendadnt was initially arraigned on one count of forgery. The case ultimately proceeded to trial on January 7, 1969, on an amended information which alleges seven counts of forgery. Two of the alleged offenses occurred in Milwaukee county and the other five counts represented a consolidation of offenses from three other counties. ¹ The defendant pled guilty and evidence of 26 other forgery offenses were read into the record. It appears that the total amount of money involved in all the forgeries, both charged and read in, amount to in excess of $3,000; that the checks uttered were those of commercial businesses that had been stolen; and that two other parties were involved, one of whom had been convicted and the other was awaiting trial.

The case was adjourned to January 27, 1969, at the request of defense counsel, at which time sentence was imposed. The defendant now argues that because the trial court did not expressly pronounce guilt on January 7th it either lost or waived jurisdiction to impose sentence on January 27th.

This court has not so construed the provisions of sec. 959.01, Stats., 1967. ²

In Spiller v. State (1971), 49 Wis.2d 372, 377, 378, 182 N.W.2d 242, 245, this court stated:

'While subsection (2) of sec. 959.01, Stats., provides the court has the duty to pronounce 'judgment' upon conviction and may adjourn the case from time to time for that purpose, the word 'judgment' here means sentencing. Neither sec. 959.01(1) or (2) requires a formal judgment of conviction and we think the acceptance by the court of the jury's verdict of guilty was tantamount to a pronouncement of Spiller's legal status of having been convicted. . . .'

In Spiller this court refused to set aside a sentence imposed that was not preceded by a formal pronouncement of guilty. The court then noted that the new Criminal Code, sec. 972.13, Stats., would relieve the lack of uniformity and formality in adjudicating guilt and imposing sentence.

The rationale of this court in the Spiller decision is dispositive of this issue in the instant case.

The argument that the trial court lost both personal and subject matter jurisdiction because it adjourned the case for twenty days without making an explicit finding of guilt or ordering a presentence investigation has no substance.

Personal jurisdiction in a criminal case attaches by an accused's physical presence before the court pursuant to a properly issued warrant, a lawful arrest or a voluntary appearance, and continues throughout the final disposition of the case. See Pillsbury v. State (1966), 31 Wis.2d 87, 142 N.W.2d 187. The defendant made no objection at the time of sentencing, or at any time, to the personal jurisdiction of the court; thus, any objection thereto has been waived. See Day v. State (1971), 52 Wis.2d 122, 125, 187 N.W.2d 790; Belcher v. State (1969), 42 Wis.2d 299, 166 N.W.2d 211, and cases cited therein. Furthermore, it appears that the adjournment in the instant case was granted in response to a request by defense counsel.

Criminal subject matter jurisdiction, on the other hand, is the '. . . power of a court to inquire into the charge of the crime, to apply the law, and to declare the punishment in the court of a judicial proceeding and is conferred by law.' Pillsbury v. State, supra, 31 Wis.2d p. 94, 142 N.W.2d p. 191. It can neither be waived nor conferred upon the court by consent. Crummel v. State (1970), 46 Wis.2d 348, 174 N.W.2d 517; Logan v. State (1969), 43 Wis.2d 128, 168 N.W.2d 171; Belcher v. State, supra, 42 Wis.2d p. 309, 166 N.W.2d 211. The circuit court for Milwaukee county has subject matter jurisdiction of an offense in violation of sec. 943.38(2), Stats.

DID THE TRIAL COURT ABUSE ITS DISCRETION IN SENTENCING?

The defendant was fifty-seven years of age, in poor health, and has spent approximately 50 percent of his life in prisons in Michigan, Illinois and Wisconsin, as a result of various previous convictions, including armed robbery, burglary and forgery. The defendant also alleges a drinking problem. The trial court indicated a presentence investigation would probably be of no value due to the defendant's present involvement in a number of forgeries and because of his past record. The defendant had been out of prison approximately seven months when the instant offenses took place. The primary thrust of defendant's argument at the time of sentencing was directed to the poor condition of his health. Medical records in support thereof were presented.

The record reflects that the trial court was cognizant of all the factors advanced by the defendant when it imposed sentence. It further reflects that the trial court considered defendant's past record when imposing the sentence for the present episode of forgeries. It was appropriate to do so. Brown v. State (1971), 52 Wis.2d 496, 500, 190 N.W.2d 497. The sentence here imposed was not so excessive as to constitute cruel and unusual punishment. Under the circumstances of the instant case, the sentence imposed was not excessive. See McCleary v....