Melby v. State

• Decision Date: 28 October 1975
• Docket Number: No. S,S
• Citation: 234 N.W.2d 634,70 Wis.2d 368
• Parties: Robert T. MELBY, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. tate 208 (1974).
• Court: Wisconsin Supreme Court

Page 634

234 N.W.2d 634

70 Wis.2d 368

Robert T. MELBY, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. State 208 (1974).

Supreme Court of Wisconsin.

Oct. 28, 1975.

On November 19, 1971, Robert T. Melby, plaintiff in error (hereinafter defendant), was charged with violation of ss. 161.30(7) and 161.30, Stats.1969, for illegal possession of two different dangerous drugs, and of sec. 161.02, Stats.1969, and sec. 939.05 (party to a crime) for possession of a narcotic drug. The defendant pled guilty to the three charges and judgment of conviction and sentence to confinement was entered October 20, 1972. A writ of error issued to review a subsequent order denying the defendant's motion for postconviction relief.

John D. Hibbard, Eau Claire, for plaintiff-in-error.

Charles R. Larsen, Asst. Atty. Gen., Madison, for defendant-in-error.

CONNOR T. HANSEN, Justice.

On August 6, 1971, police officers obtained a search warrant, entered defendant's apartment and conducted a search. In the bedroom, which the officers had reason to believe was occupied by defendant, they located a bottle containing small white capsules and yellow tablets. Also, in that room a cigarette pack with small box of tablets was discovered. In an unoccupied bedroom located in the same apartment, officers found a bottle containing white powder. These substances were later analyzed and determined to be phenylpropanolamine, a derivative of amphetamine; desoxyephedrine (Methamphetamine); and hydromorphone hydrochloride (Dilaudid), a derivative of morphine, respectively. Defendant was placed in custody, and a preliminary hearing was held on November 24, 1971. He was then committed to the Eau Claire County Hospital for the purpose of undergoing an examination with respect to his mental condition as it related to his capacity under the currently recognized tests for insanity and his capacity to understand the proceedings and assist in his defense. The result of that examination is not a part of the record before this court. The defendant escaped while in custody at the hospital and was charged with escape.

Subsequently extended negotiations were undertaken between the district attorney and the defendant's court-appointed counsel. As a result of those negotiations, the state agreed to forego prosecution of certain felony charges. These included several burglary charges, the escape charge, and several felony charges which were alleged to have occurred in Chippewa county and were consolidated with the instant proceedings. The chippewa county charges also included burglary charges. As a part of those negotiations the state agreed to recommend a maximum sentence of three years. The Chippewa county district attorney concurred in these negotiations. As a result of those negotiations the defendant pled guilty to the charges involved in this review. This agreement was brought to the court's attention at the plea hearing.

The information alleged that for the purposes of invoking the provisions of sec. 939.62, Stats. (Increased penalty for habitual criminality), the defendant had been convicted of the following felonies in the Eau Claire county circuit court.

(1) November 1, 1968, burglary, in violation of sec. 943.10(1)(a).

(2) November 1, 1968, burglary, in violation of sec. 943.10(1)(a).

The defendant acknowledged these convictions and in response to inquiry from the trial judge, responded that he knew and understood the possibility of increased penalty and the extent thereof. The trial judge found each of these convictions remained of record and unreversed. At the hearing, the court further questioned defendant as to his understanding of the fact that he had a right to a jury trial, and that the court was not bound by the state's recommendation as to sentence. To each of these inquiries, defendant responded that he understood. The court then made inquiry into the voluntariness of the plea with respect to threats, inducements or any idea that defendant might hold that a harsher sentence would be imposed should he refuse to plead guilty. Defendant indicated that none of these reasons had led to his guilty pleas. The court then made a finding that the pleas were voluntary and defendant entered a plea of guilty to each of the three charges.

Testimony was heard by the trial court from one of the police officers involved in the search of defendant's apartment. He testified as to the various sources of information, including defendant's probation officer, through whom they knew which apartment and which room belonged to defendant. He then gave a description of the search which produced the prohibited substances and items identified as belonging to defendant, which were located in the room allegedly occupied by defendant. At the conclusion of this testimony, the court found that the facts constituted the three offenses charged and ordered a presentence investigation.

The sentencing hearing took place on October 19, 1972. At the hearing, the trial judge specifically described the defendant's extensive criminal record, which will be referred to in more detail later in this opinion. He pointed to the difficulty in imposing disparate sentences, i.e., giving defendant a state-recommended sentence not commensurate with his background and crimes, while imposing harsher penalties on a second-named person in similar circumstances. The trial judge indicated that: 'This is the kind of plea agreement that somewhat compromises the court,' and that: 'The thing I am seriously considering in imposing the sentences I am about to impose is such exemplary value as the sentences may have on persons similarly inclined to commit crime. The people inclined to commit crime must know they are going to be punished.'

In accordance with maximum penalty provisions for each of the violations charged, plus permissible increased penalty under sec. 939.62, Stats., for habitual criminality, the trial court imposed indeterminate terms of one year on the first count and three years on the second counts, to be served concurrently, and an indeterminate term of three years on the third count, to be served consecutively with the first two sentences. Defendant's sentence was subsequently reduced in the amount of 323 days based on the period spent in presentence incarceration.

Pursuant to defendant's request for representation in matters pertaining to postconviction relief, new counsel was appointed. A motion was filed requesting that the defendant be allowed to withdraw his guilty plea and that the judgment and sentence resulting from that plea be vacated on the basis of issues now on appeal. Following a hearing on the motion, the trial court entered an order finding that the plea was voluntary; that defendant fully understood the plea and the possible sentence that could be imposed; that he was told that the court was not bound by the plea agreement; that the sentence was authorized by law; and that defendant had been denied none of his constitutional rights. The motion, therefore, was denied. This review follows.

We consider the following issues to be raised on this review:

1. Should the trial judge have made inquiry into the possible influence of drugs on defendant's plea, before accepting that plea as voluntary?

2. Did defendant's possession of two different types of illegal substances, and possession, party to a crime, of a third type, constitute three separate crimes?

3. Did the trial court, by applying the habitual criminality statute, sec. 939.62, Stats., to two of the charges, impose an erroneously excessive sentence?

4. Did the trial court err in failing to accept the state's sentencing recommendation?

5. Was there insufficient evidence on which to base a finding that defendant committed the crimes to which he entered guilty pleas?

6. Should defendant's sentence be reduced in the interest of justice?

Voluntariness of guilty plea.

Sec. 971.08, Stats., states that:

'(1) Before the court accepts a plea of guilty or no contest, it shall:

'(a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted; . . .'

Defendant argues that because of the nature of the charges against him and because the trial court had knowledge that defendant had been hospitalized for drug treatment, inquiry should have been made into the possible effects of drug use on the voluntariness of his plea.

This court has reiterated on a number of occasions the elements which must be present to establish as valid the trial court's acceptance of a guilty plea. Ernst v. State (1969), 43 Wis.2d 661, 674, 170 N.W.2d 713.

We have also had occasion to address the manner in which the Ernst guidelines have been applied in a variety of factual circumstances, i.e., Martinkoski v. State (1971), 51 Wis.2d 237, 186 N.W.2d 302.

In State v. Bagnall (1973), 61 Wis.2d 297, 308, 309, 212 N.W.2d 122, 128, it was stated:

'. . . A guilty plea proceeding 'demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences.' In Ernst v. State this court enumerated those things which a court must determine before it may properly accept a plea of guilty. However, this court has consistently held that while the Boykin (Boykin v. Alabama (1969), 395 U.S. 238, 243, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274) and Ernst cases have imposed a rigid burden on trial courts to create a record showing the defendant's understanding of the nature of the charge,

". . . they have not established mandatory or inflexible guidelines as to the form or nature of the inquiry that must be made. . . . The mandate as to the end result which the trial court must achieve is clear, but the precise means by which it does so have been left largely to its own discretion.'

As this court recently stated, 'It is not...