Mallon v. State

• Decision Date: 01 December 1970
• Docket Number: No. S,S
• Citation: 49 Wis.2d 185,181 N.W.2d 364
• Parties: Suzanne Sylvia MALLON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 91.
• Court: Wisconsin Supreme Court

Page 364

181 N.W.2d 364

49 Wis.2d 185

Suzanne Sylvia MALLON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 91.

Supreme Court of Wisconsin.

Dec. 1, 1970.

James H. McDermott, State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Joseph Wilson, Asst. Dist. Atty. for Milwaukee County, Milwaukee, for defendant in error.

The plaintiff in error, hereinafter called defendant, entered a plea of guilty to an information charging her with armed robbery in violation of sec. 943.32(1)(b) and (2), Stats. At the post-plea hearing the court heard testimony concerning the offense charged, and in addition five uncharged offenses pursuant to a stipulation between the defendant and district attorney whereby the defendant agreed that the court hear testimony concerning the five uncharged offenses for consideration in sentencing and the district attorney agreed not to prosecute those uncharged offenses. The five uncharged offenses were:

1. June 18, 1968--2:50 a.m.--George Webb Restaurant in Milwaukee. Defendant armed with a four-inch blade knife, obtained $70 from a waitress. A male accomplice stood outside as a lookout.

2. June 6, 1968--3:05 a.m.--Jack's Clark Service Station in Milwaukee. Defendant, and a male accomplice, while armed with a long-handled, two-pronged meat fork and hunting knife, robbed the attendant of $42.32.

3. June 13, 1968--4:00 a.m.--a Clark Service Station in Milwaukee. Defendant and male accomplice, who was armed with a small caliber revolver, robbed the attendant of $30.

4. June 27, 1968--10:45 p.m.--a Stop and Go Food Store in Milwaukee. Defendant alone, while armed with a four-inch blade hunting knife, robbed attendant of $50.

5. July 8, 1968--2:40 a.m.--a Clark Service Station in Milwaukee. Defendant, armed with a loaded gun, robbed the attendant of $125.

A postconviction motion for an order vacating the guilty plea and sentence was denied.

CONNOR T. HANSEN, Justice.

Three issues are raised on appeal:

(1) Did the trial court err in denying defendant's motion for withdrawl of her guilty plea and vacation of sentence because the sentence was imposed after taking into consideration testimony concerning the defendant's participation in uncharged offenses pursuant to a stipulation with the district attorney?

(2) Did the trial court err in denying defendant's motion for withdrawal of her guilty plea and vacation of sentence because the defendant was not present at an in-chambers conference prior to sentencing?

(3) Does the twenty-five year sentence imposed constitute cruel and unusual punishment?

VALIDITY OF STIPULATION.

This court has approved the use of stipulations concerning uncharged offenses by the trial court in considering the appropriate sentence to be imposed in the disposition of a case based upon conviction of a charged offense.

'This procedure must be distinguished from a practice in this state, especially in Milwaukee, of charging a multiple offender with two or more offenses for which the evidence is most conclusive and bringing the judge's attention to additional uncharged offenses prior to sentencing. Upon agreement between the state and the accused, the judge may take these offenses into consideration and the prosecution agrees not to prosecute. It is expected the uncharged crimes will influence the length of the sentence for the crime or crimes the defendant has been found guilty of or to which he has plead guilty. The advantage of this technique to the accused is that he can clean his slate of several uncharged crimes with the safety of only receiving at the most the maximum sentence on the one or two crimes of which he is convicted. * * *' Embry v. State (1970), 46 Wis.2d 151, 157, 158, 174 N.W.2d 521.

We do not consider such a stipulation to be against public policy. Also we here determine that once such a stipulation has been entered into, properly considered by the trial judge, and made a part of the record with supporting testimony, the defendant is not subject to further prosecution on uncharged offenses; and that under proper circumstances the district attorney can enter into such a stipulation. This court has recognized the broad discretion the district attorneys of this state have in determining whether or not to prosecute.

'The district attorney in Wisconsin is a constitutional officer and is endowed with a discretion that approaches the quasi-judicial. State v. Peterson (1928), 195 Wis. 351, 359, 218 N.W. 367.

'It is clear that in his functions as a prosecutor he has great discretion in determining whether or not to prosecute. There is no obligation or duty upon a district attorney to prosecute all complaints that may be filed with him. While it is his duty to prosecute criminals, it is obvious that a great portion of the power of the state has been placed in his hands for him to use in the furtherance of justice, and this does not per se require prosecution in all cases where there appears to be a violation of the law no matter how trivial. * * *' State ex rel. Kurkierewicz v. Cannon (1969), 42 Wis.2d 368, 378, 166 N.W.2d 255.

In State v. Smith (1969), 45 Wis.2d 39, 172 N.W.2d 18, this court also approved the trial court's consideration of an agreement between the state and the defendant to consider uncharged offenses in sentencing on the conviction of the charged offense. In approving this procedure, it was determined that the defendant could successfully assert such an agreement or stipulation in the event of any future attempt to prosecute for the uncharged offenses, avoid a lengthy criminal record of convictions and be assured of sentence within the limitations of the offense or offenses for which he was convicted.

This issue was raised in defendant's postconviction motion in the trial court. The trial court properly denied the motion, founding its determination on the proposition that the assertion of due process would prevent subsequent prosecution of the uncharged offenses, and in so doing made the following pronouncement, which we quote with approval:

'But I think it can be asserted that even though the District Attorney speaks as the District Attorney and the incumbent District Attorney, acting through his Assistant District Attorneys here in those stipulations, I think that he nevertheless binds the State perpetually. I think the very distillation of due process is fundamental fairness, and I am sure this distillation of due process in its most epigrammatic form would serve to obliterate the opportunity on the part of any future intrepid prosecutor to proceed with the...