Luckman v. Burke, 68-C-28.
| Decision Date | 18 March 1969 |
| Docket Number | No. 68-C-28.,68-C-28. |
| Citation | 299 F. Supp. 488 |
| Parties | Allan Leroy LUCKMAN, Petitioner, v. John C. BURKE, Warden, Wisconsin State Prison, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Darryl K. Nevers, Milwaukee, Wis., for petitioner.
Bronson C. LaFollette, Atty. Gen., William A. Platz, Jeffrey B. Bartell, Asst. Attys. Gen., Madison, Wis., for respondent.
A petition for writ of habeas corpus, prepared pro se, was filed with this court by Allan Leroy Luckman who is presently incarcerated in the Wisconsin State Prison. A response was ordered and an attorney was appointed to represent petitioner. Counsel for petitioner and for the state have prepared a stipulation of facts which they agreed makes an evidentiary hearing unnecessary. Extensive briefs have been filed, and they have been most helpful to the court.
The crux of petitioner's claim that he is entitled to a writ of habeas corpus is that (1) he was denied a speedy trial, and (2) his plea of guilty was involuntary. The facts surrounding petitioner's incarceration are complex and require a somewhat lengthy statement.
Between April 28, 1962 and May 22, 1962, six criminal warrants charging petitioner with a total of five counts of armed robbery and one count of conspiracy to commit armed robbery were filed by the district attorneys of three Wisconsin counties. Four of these charges were in Waukesha County, one was in Milwaukee County, and one was in Washington County.
Shortly after these alleged crimes took place, in 1962, the petitioner was imprisoned in the Michigan State Prison for a criminal offense in that state and was serving a sentence of eight to twenty years. Wisconsin authorities knew of his incarceration and filed a detainer with the Michigan prison authorities against petitioner.
On June 3, 1963, and again on October 29, 1963, petitioner wrote to the District Attorney of Waukesha County, Wisconsin, from Michigan State Prison and requested that the charges against him in Wisconsin be dropped, or that he be brought to Wisconsin for trial. The text of these letters is set out below.1 Both letters were received by the Waukesha County District Attorney who answered each letter indicating that the charges would not be dropped, and that petitioner should obtain legal advice and provide "the proper legal papers" in order to "proceed with the prosecution in these matters." The text of these letters is set out below.2
In addition, petitioner wrote to the judge of the County Court of Waukesha County, Wisconsin, and to the Wisconsin Attorney General's office asking that the charges against him be dropped. On December 2, 1963, in response to a letter written by petitioner, the judge wrote a letter to petitioner as follows:
(Emphasis supplied.)
On May 28, 1964, in response to inquiry from Wisconsin authorities, the director of the Michigan Department of Corrections sent a letter to the judge indicating that Michigan could not release the petitioner under any statutory provisions currently in effect, and that Michigan would retain the Wisconsin detainer in effect and notify Wisconsin authorities before petitioner was released. This is the first indication in the record of this case of any person attempting, on behalf of the State of Wisconsin, to bring the petitioner to trial in this state. This occurred approximately one year after petitioner first informed the Waukesha District Attorney of his desire to be tried "right away."
Thereafter, on July 31, 1964, an attorney was appointed to represent petitioner. On or about September 10, 1964, an alternative writ of mandamus was served upon the District Attorney of Waukesha County requiring him to show cause why petitioner should not be brought before a magistrate for speedy trial or, in the alternative, why the pending charges should not be dismissed.
The same judge who wrote petitioner presided at the hearing in the action for mandamus on September 21, 1964. The State of Wisconsin had not produced the petitioner, but he was represented by legal counsel. At said hearing, the Court stated to the District Attorney of Waukesha County:
Immediately thereafter, on September 21, 1964, the District Attorney wrote to the Governor of Michigan asking him to advise the Wisconsin authorities as to Michigan's position if extradition were commenced.
On January 21, 1965, after considerable correspondence between the Michigan and Wisconsin authorities, the District Attorney was advised that Governor Romney of Michigan had granted extradition to allow prosecution of the petitioner in Wisconsin provided that he be immediately returned to Michigan to complete his sentences previously ordered for offenses committed in Michigan.
Thereafter, on February 1, 1965, petitioner appeared for the first time in a Wisconsin court in connection with the Waukesha County crimes charged as hereinbefore stated. The offenses in Milwaukee and Washington Counties were consolidated according to law so that they could all be disposed of by the Waukesha County Court.
The judge who presided at the mandamus hearing also presided at the arraignment. Petitioner appeared with legal counsel but did not raise the issue of denial of speedy trial at this court proceeding.
Prior to accepting the pleas of guilty on the six charges, the following dialogue took place on the record:
The Court sentenced petitioner on each of the five armed robbery charges to a term of not more than five years in the Wisconsin State Prison. On the conspiracy charge, he was sentenced to a term of not more than two years in the Wisconsin State Prison. All of said sentences were ordered to run concurrently with each other.
The certificate of conviction on file at Fox Lake Correctional Institution indicates that said sentences are to run consecutively with the sentence petitioner was then serving in Michigan which is in accordance with Wisconsin law, as it then existed. However, the Waukesha County Court did not specifically state that the sentences were to run consecutively with the Michigan sentence during the proceedings in court. At the conclusion of his prison time in Michigan State Prison, petitioner was immediately transferred to the Wisconsin State Prison to commence serving his Wisconsin sentences.
Petitioner contends that the pleas of guilty he entered to each of the six charges were not voluntary because they were entered under the misapprehension of a material fact, i.e. that the Wisconsin sentences would be served concurrently with the Michigan sentence. The petitioner claims that the letter from the judge, written in December 1963, induced him to plead guilty under the belief that he not only could, but probably would, receive a sentence concurrent with the Michigan sentence he was serving.
It is conceded that petitioner has exhausted his state remedies on this claim. The Wisconsin Supreme Court has rejected petitioner's contention that his plea was not voluntary and denied his petition for a writ of habeas corpus.3
The voluntariness of the pleas depends on the totality of the circumstances in which the pleas were made. The statements made in court by the defendant, in which he answered affirmatively the question of whether the plea to each count was voluntarily given, should not per se foreclose inquiry into the voluntariness of the plea. See United States ex rel. Perpiglia v. Rundle, 221 F.Supp. 1003 (E.D.Pa.1963).
Consequently, in this case, it is necessary to evaluate the letter from the judge to the petitioner and determine what, if any, effect it had on the voluntariness of the pleas.
The letter clearly does not mention a plea of guilty. It does not appear to this court to constitute what is normally referred to as "plea bargaining"; there is no offer of a quid pro quo — of a concurrent sentence in exchange for a plea of guilty. However, the letter does strongly suggest — especially to one untrained in the law — that a sentence concurrent with the sentence then being served in Michigan would be given "in all probability." The suggestion was erroneous. It was impossible at that time under Wisconsin...
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