McAllister v. State

Decision Date02 March 1972
Docket NumberNo. S,S
Citation194 N.W.2d 639,54 Wis.2d 224
PartiesCurtis McALLISTER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 140.
CourtWisconsin Supreme Court

Plaintiff in error, Curtis McAllister, hereinafter defendant, was arrested on September 27, 1969, and charged with injury by conduct regardless of life in violation of sec. 940.23, Stats., as a result of his involvement in the shooting of Paul Cannon in the city of Beloit.

At the initial appearance Hon. Edwin C. Dahlberg presided and the following exchange took place between the court and the defendant:

'COURT: The defendant made an initial appearance before me on Saturday afternoon at which time the court did read the complaint dated Sept. 27, 1969. The complaint alleges that on the 27th day of Sept. 1969 at the City of Beloit in said county of Rock and State of Wisconsin, the said Curtis McAllister did feloniously and intentionally cause great bodily harm to another human being, to-wit: Paul Cannon, by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life, contrary to Section 940.23 of the Wisconsin Statutes. You are charged with Conduct Regardless of Life Mr. McAllister, do you understand the charge against you? A. Yes.'

The preliminary hearing was held in the county court of Rock county, Branch 4, Hon. Mark J. Farnum presiding, and defendant was bound over for trial in Branch 3 of that court, Hon. Edwin C. Dahlberg presiding.

On October 6, 1969, a not-guilty plea was entered and thereafter defendant, on the advice of counsel, withdrew his notguilty plea and on July 1, 1970, entered a plea of guilty. At the hearing on this guilty plea, the following colloquy then took place between the court and the defendant:

'COURT: Mr. McAllister, your attorney has advised the court it is your desire to withdraw your plea of Not Guilty and enter a plea of guilty, is that your desire? A. Yes.

'Are you doing this freely and voluntarily? A. Yes.

'Nobody forced you or threatened you? A. No.

'Nobody made any promises to you as to the disposition in this matter if the court should accept your plea? A. No.

'Do you understand even if promises may have been made by the District Attorney, by the police authorities, by your attorney or by anyone in the world those promises would not be binding upon the court? A. Yes.

'I previously advised you of the penalty upon conviction, do your recall that? A. Yes.

'I advised you upon conviction of the offense the criminal code provided for a penalty of up to ten years, do you understand that? A. Yes.

'COURT: Mr. McAllister do you understand if the court accepts your plea of guilty you would be waiving certain constitutional rights among which is a trial by a 12 man jury? A. Yes.

'Do you understand if the court accepts your plea of guilty you would be waiving or giving up that right? A. Yes.

'And do you understand if the court accepts your plea of guilty you are waiving or giving up the right to confront witnesses who might be called to testify against you and giving up your right to cross examine them either in person or by an attorney? Do you understand you are giving up that right? A. Yes.

'And do you understand under the law the state has the burden of proving every element of the offense beyond a reasonable doubt and that you are not required to incriminate yourself, or admit anything. Do you understand that? A. Yes.

'Do you understand if the court accepts your plea you are giving up that right? A. Yes.

'How far have you gone in school? A. 10th grade.

'Are you able to read and write? A. Yes.

'COURT: Have you ever been in a mental institution? A. No.

'Mr. McAllister you have had prior experience in court in criminal matters have you not? A. Yes.

'You are somewhat familiar with trial procedure? A. Yes.

'Did you at any time give a statement to the police authorities about this matter? A. Not that I recall.

'Mr. Robson, have you had ample time to confer with Mr. McAllister about this matter? A. Yes I have.

'And are you satisfied that the tendered plea is advisedly made freely and voluntarily made? A. Yes I am satisfied he is doing this freely and voluntarily and that the plea (is) advisedly made.

'And are you satisfied there is a factual basis for the plea? A. Yes sir I am.

'COURT: Subject to the District Attorney establishing a prima facie case I will accept the plea. . . .'

The parties then agreed that the transcript of the preliminary hearing should be made part of the trial record. The plea was accepted and defendant was adjudged guilty as charged. He was sentenced to an indeterminate term of not more than three years in the Wisconsin state prisons.

Pursuant to defendant's request, this court appointed Attorney John W. Roethe to represent defendant in any post conviction proceedings. A motion was then brought in the county court for leave to withdraw the guilty plea. Following an evidentiary hearing, the court denied defendant's motion and the matter is here pursuant to a writ of error to review that order.

John W. Roethe, Edgerton, for plaintiff in error.

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

WILKIE, Justice.

A single issue is involved in this review:

Was defendant's plea of guilty knowingly and intelligently made?

As we see it, there is no question that the trial court, on the record made here, did not sufficiently ascertain that the defendant understood the nature of the charge against him and that defendant's conduct fell within the charge to which he was pleading.

In Ernst v. State 1 (applicable here), this court extensively reviewed the procedure for accepting a guilty plea in view of the United States Supreme Court decisions of McCarthy v. United States 2 and Boykin v. Alabama. 3 In Ernst the court made mandatory the standards previously suggested in State ex rel. Burnett v. Burke, 4 plus the additional requirement of Rule 11 of the Federal Rules of Criminal Procedure as required by McCarthy and Boykin. The second Burnett standard and the additional McCarthy requirement are germane to this case.

The second Burnett requirement provides that the trial court must 'establish the accused's understanding of the nature of the crime with which he is charged. . . .' 5 The McCarthy requirement is that the court determine "that the conduct which the defendant admits constitutes the offense charged. . . ." 6 It is required that the "defendant (possess) an understanding of the law in relation to the facts." 7

From the record here it is apparent that the trial court did not comply with either the second requirement of Burnett or the McCarthy-Boykin standard. At the taking of the plea the court did not in any way question defendant about his understanding of the charge or ascertain that the defendant understood the elements of the crime or that his conduct fell within the purview of the statute.

The state relies upon Martinkoski v. State, 8 Burkhalter v. State, 9 and Edwards v. State 10 in support of the argument that defendant's understanding of the charge need not appear of record. A review of these cases reveals one essential difference. In each of these cases, at the plea taking the defendant specifically stated that he understood the charges against him. In Martinkoski, the case primarily relied upon by the attorney general, this court noted that the defendant recited the elements of the crime to the court and that the defendant knew to which crime he was pleading. 11 In Burkhalter 12 and Edwards 13 this court specifically noted that the court questioned the defendant about his understanding of the crime and as to whether the acts were indeed violations of the statutes in question.

The record at the taking of the plea here is absolutely silent in regard to the defendant's understanding of the charges against him.

The attorney general argues that defendant's acts were within the proscriptions of the charged statute, but such an argument is inapposite. The court has a duty to fulfill the Ernst requirements on the record. Defendant denies he understood the charges against him. The state attempts to circumvent the Ernst requirement by arguing that defendant really did understand the charge, but again that is not the issue. The issue here is what duty the trial court had when accepting the plea of guilty. Unlike the cases relied upon by the attorney general, here defendant never testified as to his knowledge of the charge or of his understanding of the crime.

The requirement that defendant understand the charges against him is most basic to a knowing plea. Unlike the requirements that the court ascertain that defendant has not been coerced and has sufficient education to enter a plea, defendant's understanding of the charge cannot be demonstrated through other testimony. Certainly such knowledge is not shown here. The record does not disclose that defendant understood the charge or that his acts violated the statute. Such knowledge cannot be drawn from his other statements to the court. The record is thus fatally defective and reversal is required.

Because of the disposition of the case on the basis of the error in the plea-taking procedure, we do not consider other questions presented by counsel.

Order reversed and cause remanded for further proceedings.

HANLEY, Justice (dissenting).

I respectfully dissent from the decision of the court....

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  • Brainard v. State
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    ...reversal of the conviction. United States v. Cantor, 469 F.2d 435 (3 Cir. 1972); United States v. Thomas, supra; McAllister v. State, 54 Wis.2d 224, 194 N.W.2d 639 (1972); cf. Peterson v. State, 54 Wis.2d 370, 195 N.W.2d 837 As previously noted, compliance with the second Sisco requirement ......
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