Levesque v. State

• Decision Date: 07 May 1974
• Docket Number: No. S,S
• Citation: 63 Wis.2d 412,217 N.W.2d 317
• Parties: John Andre LEVESQUE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 67.
• Court: Wisconsin Supreme Court

Page 317

217 N.W.2d 317

63 Wis.2d 412

John Andre LEVESQUE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 67.

Supreme Court of Wisconsin.

May 7, 1974.

Howard B. Eisenberg, State Public Defender, Richard M. Sals, Asst. State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

HALLOWS, Chief Justice.

Before accepting Levesque's plea of guilty, the trial court heard the testimony of an arresting police officer, but Levesque now claims the facts do not sustain the conviction of burglary under sec. 943.10(1)(a), Stats., ¹ because he entered the building with the consent of the owner. The facts are somewhat bizarre and undisputed. Levesque entered the Suburpia Submarine Sandwich Shop in downtown Milwaukee at 1:30 a.m. when it was open to the public. He had a cup of coffee and about 2:00 a.m., entered the men's room, removed a tile from the ceiling, crawled into the space above the ceiling, positioned himself on top of some pipes, replaced the tile, and waited. At about 3:35 a.m., after the employees had left the restaurant, Levesque emerged from his hiding place and entered the kitchen. There he found an unlocked safe and took from it the money that was there. About this time the police came and Levesque hid. The police made a search of the premises and discovered Levesque hiding under a counter in the kitchen at the rear of the building. On top of the counter, the police observed a Suburpia money bag containing rolls of coins. Levesque was then arrested. Levesque acknowledges the facts as testified by the policeman were true and correct and that he had the intent to steal when he entered the restaurant.

We find no merit in Levesque's contention the facts do not sustain the conviction. Levesque argues that if he should have been charged with burglary at all, it should have been under sec. 943.10(1)(e), Stats., ² rather than under subsec. (1)(a) of sec. 943.10. Subsection (1)(e) deals with the unlawful entry into a room and Levesque claims the only room not open to the public which he entered was the kitchen and that as to the rest of the building, the dining room and the men's room, he had permission to enter as a member of the public. This argument is as ingenuous and as unsuccessful as his idea of concealing himself in a false ceiling in order to carry out his intention to steal.

To constitute the crime of burglary under sec. 943.10(1)(a), one must enter the building without the consent of the person in possession. Concurrently with the entry he must have the intention to steal or commit a felony. It has been broadly stated that entry into a place while open to the general public is with consent (see sec. 943.10(3), Stats.). Such entry by the general public to a building is impliedly conditioned by time, place and purpose. It is the extent and scope of the consent of the one in possession which determines the legality of the entry and presence of the public within the structure. Entry into a building means more than the passing through a door or opening; it includes the idea of presence within the building resulting from passing through the door or opening. The consent of the one in possession of a building, if he be a merchant, is impliedly conditioned by the purpose of doing business with the merchant in the area set aside for that purpose. The consent given to the public to enter is not for all things and all purposes. A hawker of baubles is a member of the public who does not have the consent of a jeweler to enter his store to sell baubles in the aisles. Levesque had consent to enter the restaurant as a member of the public for the purpose of eating and drinking in the restaurant. When the restaurant closed for the night, that consent was terminated and Levesque was inside without consent; not only that, but he was in an area not open to the public. His entry ab initio was without consent within the meaning of the term in sec. 943.10.

The facts of this case are somewhat analogous to the interesting case of Nicholls v. State (1887), 68 Wis. 416, 32 N.W. 543, at least in the ingenuous way the defendants attempted to use lawful permission to be present in an unauthorized place. In Nicholls the defendant had hidden himself in a large box and had the box shipped with himself in it via a railroad express freight car with the intention of robbing the agent in charge of the car who he knew to be carrying a large sum of money. The railroad was suspicious of the box and had an armed police officer board the train. The officer opened the box and discovered the defendant who was charged and convicted of burglary of the express freight car. The defendant contended there was no breaking in of the car and the court agreed there was no such breaking in the sense of breaking a lock or opening the door with a key or lifting a latch or severing or mutilating the door. 'On the contrary, the box was placed in the express car with the knowledge, and even by the assistance, of those in charge of the car. But it was not a passenger car, and the plaintiff in error was in no sense a passenger.' The court went on to say in finding the express car was a prohibited area for persons, that the express company 'may have at times transported animals, birds, . . . but it may be safely assumed that it never knowingly undertook to transport men in packages or boxes for special delivery.'

But more importantly, the court stated 'The plaintiff in error knew that he had no right to enter the express car at all without the consent of those in charge. The evidence was sufficient to justify the conclusion that he unlawfully gained an entrance without the knowledge or consent of those in change of the car, by false pretenses, fraud, gross imposition, and circumvention.' In the instant case, Levesque in hiding himself in the false ceiling of the men's room perfected by false pretenses and fraud his otherwise lawful entrance to the restaurant and rendered it unlawful. Prophetically, the court in Nicholls stated, p. 421, 32 N.W. p. 546, 'the law will not suffer itself to be trifled with by such evasions, especially under the cloak of legal process.' On the effect of the right to enter premises, 12 C.J.S. Burglary § 11, states: 'Entering a place where one has a right to be, although with intent to commit a crime, is not burglary; but one having a general right to be in a building may be guilty of burglary where he entered at a time or place beyond his authority.' To this, we would add 'or remains at a time or place beyond his authority.' 'Entry' in sec. 943.10(1)(a), Stats., must be construed to mean not only the simple act of passing through the outer wall of a structure but also the result of such action, namely, presence within the structure.

Levesque's second argument is the other side of the same coin as his first argument. It is addressed to an alleged error in the proceeding in which the motion to withdraw the guilty plea was denied. This court having decided the facts admitted by Levesque constitutes the crime of burglary under sec. 943.10(1)(a), Stats., we now conclude the trial court complied with the requirements of Ernst v. State (1969), 43 Wis.2d 661, 170 N.W.2d 713, in determining that a factual basis existed for the plea of guilty.

But Levesque further argues he was denied an evidentiary hearing on his motion to withdraw his guilty plea and was unable to prove a manifest injustice as a basis for his motion to withdraw the plea of guilty as prescribed by State v. Reppin (1967), 35 Wis.2d 377, 151 N.W.2d 9. A motion to withdraw the plea of guilty was prepared by the state public defender's office, which was based on three grounds: (1) Levesque's conduct did not constitute burglary as defined in sec. 943.10(1)(a); (2) the court did not adequately ascertain the defendant understood the nature of the offense charged; and (3) Levesque at the time of the arraignment was not able to understand the proceedings against him due to mental disease or a mental defect. The first two of these grounds we have already considered in this opinion in reference to the writ of error to the conviction. This leaves only the third ground for consideration. This motion recited merely the legal grounds upon which it was premised. There were no facts recited in support of the allegations. The motion was dated March 19, 1973, and was received and filed in circuit court on the following day. On April 5th, the motion came on for hearing but the state public defender requested an adjournment which was granted. On May 3d...