McCleary v. State, S

CourtUnited States State Supreme Court of Wisconsin
Citation182 N.W.2d 512,49 Wis.2d 263
Docket NumberNo. S,S
PartiesRichard David McCLEARY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 78.
Decision Date05 January 1971

On August 3, 1968, the defendant, Richard David McCleary, forged and uttered a $50 check bearing the purported signature of James Kopatich. On December 17, 1968, he was charged with a single count of violating sec. 943.38(2), Stats. A violation of this subsection may be punished by a fine of not more than $5,000, or by imprisonment for not more than ten years, or by both fine and imprisonment.

On January 13, 1969, McCleary entered a plea of no context. The trial judge very carefully examined the defendant in respect to his educational background and his understanding of the consequence of the plea, and informed him that he could be found guilty upon a plea of nolo contendere, thus exposing himself to the possibility of a ten-year sentence. He pointed out to the defendant that by so pleading he was foregoing the valuable right to a trial, either to the court or jury.

The plea was accepted on January 23, 1969. The state presented a prima facie case tending to show the defendant's guilt. Edward McHugh, a detective with the Milwaukee police force, testified that the $50 check bearing the forged signature of James Kopatich was cashed in a Kroger store on August 3, 1968. The forgery was discovered only when the check was returned from the Hampton State Bank bearing the notation 'account closed.' McCleary was identified by his handwriting. He admitted that he had written and cashed the check and used the proceeds for his own purposes. Detective McHugh testified that McCleary's previous record involved only traffic violations.

McCleary took the stand and testified that he was married and had one child, aged seven months. He was, at the time of his arraignment, a salesman for the Britannica Corporation, working on a guaranteed commission of $800 per month. He had only recently secured this employment. McCleary acknowledged that he had written the check for $50 and that he had forged the name of James Kopatich, an acquaintance of many years standing. He acknowledged that he now realized the seriousness of the offense. To his attorney's question, 'You think you have learned your lesson as far as whether or not you should do anything like this,' he answered, 'Yes.'

Cross-examination by the district attorney revealed that McCleary had approximately three years of university training at the University of Wisconsin-Milwaukee and at San Diego College, San Francisco, that he was twenty-two years old, and that he had been rejected by the selective service as physically unfit. At the time of the offense McCleary was an assistant manager at Kohl's supermarket. He testified that he cashed the check because he needed the money to pay household bills--rent. He was earning $116 per week at that time.

Following the taking of this testimony, the trial judge found the defendant guilty and ordered a presentence investigation. On March 21, 1969, after a hearing which afforded the defendant no opportunity to offer any proof in contravention of facts set forth in the presentence report and without affording the defendant the right of allocution, the court sentenced the defendant to the Wisconsin state prison for an indeterminate term of not more than ten years. Prior to pronouncement of sentence, the trial judge read without comment portions of the presentence report. They included the probation officer's assertions that: The defendant 'had always taken pride in his ability to cash checks,' 'that he took the challenge of trying to cash a check at Kroger's,' 'that he didn't feel he would be caught for this offense and that he has no respect for the authorities,' 'that his political convictions did not allow him to accept the law as it was accepted by most other people,' that he 'denied any feeling of guilt in this offense as he does not consider taking money from institutions 'stealing' but 'profit sharing," that he stated 'how superior he felt to most other people, including the law itself,' and that he 'trys to rationalize his action. The basis for most of his rationalization centers around his political ideology.'

The trial judge read into the record the conclusion of the probation officer that the defendant does not have the proper attitude or sense of responsibility needed in order to benefit from probation. The probation officer concluded that the ideals of the defendant were not compatible with the laws of society, and 'it appears to the investigating officer that the defendant has no desire to change or conform to them.' The probation officer stated that in some instances the defendant had not told the truth. He recommended that 'some other disposition than probation be considered at this time.'

Judge O'Connell's only comment prior to sentencing consisted of the following two paragraphs:

'I intend to follow the recommendation of the Probation Department, and I will not grant probation in this case. I'm prepared to make disposition thereon.

'The laws of society apply to every member thereof, whether in a nichey (sic, Nietzschean?) type attitude he considers himself to be above them or not.'

He then proceeded to pronounce sentence for an indeterminate term of not more than ten years.

Subsequently, the defendant moved for a rehearing on the sentence. The motion was granted; and a hearing was held on September 2, 1969. During the period from sentencing until the date of rehearing the defendant was imprisoned at the Wisconsin state prison.

The first witness at the hearing was Lawrence Anthony, the probation officer who wrote the presentence report. He testified that all of the statement attributed to the defendant in the report were in fact made by the defendant. On cross-examination, Anthony stated that he began working as a probation officer on January 5, 1969, just before the McCleary case was referred to him. Prior to January 1969 he had had no experience as a probation officer. He stated that there was nothing unusual about defendant's statement that he did not think he would be caught when he committed the crime. Most criminals think this, he stated. Counsel for the defendant then asked Anthony whether defendant had told him that he had forged the check to get even with Kopatich, who had on a prior occasion forged a check using defendant's name. The trial court refused to permit the question. Anthony denied that the term, 'profit sharing,' used in the report was suggested by him rather than by the defendant. Anthony stated that the recommendation made in the report was still his recommendation for disposition of the case. However, he admitted that he had done no further study of the case since preparing the report.

The defendant then took the stand and testified that many of the statements attributed to him were taken out of context or made in jest. He also stated that he had forged and cashed the check to get even with Kopatich, who had forged defendant's name on a check and cashed it on a prior occasion.

The defense then attempted to introduce the file of the Milwaukee county circuit case of State of Wisconsin v. Gregory James Heydak to show that, although Heydak had pleaded guilty to seven counts of check forgery and one count of armed robbery, he received only a sentence of probation in the court presided over by Judge Herbert J. Steffes. The trial judge refused to take judicial notice of the Heydak case. He later stated that he was 'not accountable for dispositions of other cases which have not been before (him).'

Again, the judge's reasons for imposing the nine-year sentence were extremely brief. He stated that forgery was a serious offense. He stated that he believed the probation officer's assertion that the defendant considered the forgery as 'profit sharing' rather than 'stealing.' He concluded, therefore, that probation was not appropriate. He made no attempt to explain why the near-maximum sentence was appropriate in the circumstances. While the judge stated his reasons for ordering incarceration rather than probation, he made no statement in explanation of the term imposed. He did point out that the legislature had provided a range of up to ten years imprisonment. This was the only statement given in explanation of his discretion in imposing sentence.

Judge O'Connell then imposed an indeterminate term of nine years, stating that he was taking into consideration the fact that McCleary had already served six months of the original ten-year term.

Writs of error have been issued from the two sentencing judgments only.

Shellow & Shellow, Robert H. Friebert, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Milwaukee County Dist. Atty., Lee Edward Wells, Asst. Dist. Atty., Milwaukee, for defendant in error.


There is no serious contention that McCleary should necessarily have been placed on probation. It is apparent that, under the facts and circumstances of the case, the trial judge could properly impose some period of incarceration. The objection is to the excessiveness of the sentence. Counsel on appeal contends that, by the imposition of this sentence, defendant McCleary has been denied equal protection of the laws, as his sentence is disproportionate to those imposed on other check forgers. He also contends that the imposition of so lengthy a sentence constitutes cruel and inhuman treatment, violative of the United States Constitution. We see no merit in either of these contentions.

The argument that defendant has been denied equal protection of the laws is based upon the fact that Gregory James Heydak, who gave the defendant the check on which he forged the name of Kopatich, was given a sentence of five years probation by Judge Herbert J. Steffes after pleading guilty to seven counts of forgery and one count of armed robbery.

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    ...valid sentence is a statement by the trial judge detailing his reasons for selecting the particular sentence imposed. McCleary v. State, 49 Wis.2d 263, 280-81, 182 N.W.2d 512 (1971). In Gallion, our supreme court explained that "[t]he legislature well recognized that explaining the reasons ......
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1 books & journal articles
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