Mueller v. State
| Citation | 145 N.W.2d 84,32 Wis.2d 70 |
| Parties | Harry MUELLER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Decision Date | 04 October 1966 |
| Court | United States State Supreme Court of Wisconsin |
Thomas S. Brenner, Waukesha, for plaintiff in error.
Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, Roger P. Murphy, Dist. Atty., Waukesha, for defendant in error.
The two issues presented on this review are:
1. Where the plaintiff in error was represented by counsel at his trial, did the trial court abuse its discretion in denying the plaintiff in error's post conviction motion to withdraw his plea of guilty where the plaintiff in error testified he was not aware of the nature and seriousness of the offenses charged and was not informed on this matter by either the trial court or his lawyer?
2. Was plaintiff in error entitled to withdraw his plea of guilty as of right because his attorney also represented a codefendant?
Trial Court's Discretion.
Ordinarily, the question of the withdrawal of a plea of guilty is addressed to the discretion of the trial court. 1 The general rule is that the defendant must establish adequate grounds for the withdrawal, 2 and the defendant has the burden of proof on this issue. 3 The rule is stated as follows:
'Accused has the burden of showing adequate grounds for permitting the withdrawal of his guilty plea and of proving his allegations or showing cause for a change of plea; * * *.
'* * * The doctrines of 'presumptive innocence' and 'proof beyond a reasonable doubt' are inapplicable on such motion since accused by his plea had already admitted his guilt.' 4
Mueller's sole basis for claiming an abuse of discretion on the part of the trial court is his contention that he was not informed by his attorney or by the trial court of the nature and seriousness of the offenses charged.
In State v. Stickland 5 we said:
'Courts have the right to assume in such a situation (where defendant, with counsel, pleads guilty) that counsel has fulfilled his duty of proper representation by fully explaining to the accused the nature of the offense charged, the range of penalties, and possible defenses thereto, and satisfying himself that the accused understands such explanations, before permitting the accused to authorize the entry of a plea of guilty.'
Defendant has the burden to overcome this assumption. Yet the only evidence on this point is defendant's own flat assertion that he was not told by Johnson of the 'serious consequences' of his crimes. Yet he also testified that Johnson told him he would 'get five years in Green Bay.' This conflict in Mueller's testimony, plus the fact that the court was not bound to accept Mueller's contention as constituting fact, 6 is sufficient to support the trial court's determination that the petitioner had failed to prove his allegations (1) that he was not informed regarding sentences and (2) that he was not told of the nature and consequences of the offenses.
Dual Representation by Counsel.
One exception to the rule that withdrawal of a plea of guilty is discretionary with the trial court is where the defendant establishes the fact of 'a denial of a relevant constitutional right.' 7 In such a case withdrawal of the plea is a matter of right. 8 In the instant case Mueller urges that the withdrawal of his plea of guilty should be permitted of right for the reason that his attorney also represented codefendant Koerner and that this dual representation, without the knowledge of plaintiff in error, deprived him of the effective assistance of counsel. Counsel relies on the case of Glasser v. United States. 9 In Glasser, codefendants were charged with a conspiracy. Attorney Stewart was retained by defendant Glasser to defend him. The other defendant, Kretske, was unable to get an attorney so the court asked Stewart if he would represent Kretske. Both Attorney Stewart and codefendant Glasser raised objections, but the court appointed Stewart as Kretske's counsel. A joint trial was held and Glasser was convicted of conspiracy. The United States Supreme Court ruled that defendant Glasser was denied assistance of counsel contrary to the Sixth amendment of the constitution. The basis of the court's holding that counsel's dual representation deprived Glasser of assistance of counsel was the strong possibility of inconsistent interests, which was pointed out to the trial court. These inconsistent interests had demonstrably hindered the performance of counsel at trial. At one point the attorney refused to cross examine a witness contra to Glasser's interests, because of a desire to protect Kretske. Stewart also allowed testimony which was inadmissible as to Glasser to come in because he desired to avoid prejudice to Kretske. Thus, the major element in the Glasser holding is the existence of a conflict of interests between the codefendants, which actually lessened the effectiveness of counsel's presentation.
In Glasser the court makes the following statement:
10
Petitioner argues that this holding requires an attorney dedicated solely to his interests, regardless of whether any conflict of interest exists. This interpretation of Glasser is too broad. Petitioner must make a showing that the dual representation impaired the effectiveness of his counsel. In Glasser the element of conflict of interest was essential to a showing that dual representation impaired the effectiveness of counsel.
In a recent Wisconsin case on the problem of dual representation, Massey v. State, 11 Attorney McGrath was appointed by the trial court as counsel for codefendants Sullivan and Massey. Massey was convicted and claimed prejudicial error because of this dual representation. The Wisconsin supreme court distinguished Glasser on the grounds that no protest had been made by either Massey or the attorney to the appointment, that no conflict of interest appeared, and that testimony tending to exculpate one defendant would not inculpate the other.
Thus, both Glasser and Massey are in accord with the general rule that one attorney may represent two defendants indicted for participation in the same crime, unless the interests of the defendants are shown to be in conflict. 12
Defendant Mueller alleges that his interests were in conflict with those of codefendant Koerner. The basis of this contention is that the acts of defendants Mueller and Koerner were not the same, and that there would have been more difficulty in identifying defendant Mueller at trial. This is not sufficient to support a finding of conflict as a matter of law.
In People v. Bopp 13 the codefendants had separate alibis which were inconsistent. The court held that conflict existed because testimony tending to exculpate one would tend to inculpate the other.
In People v. Lanigan 14 counsel could not represent codefendants in a joint robbery trial because of the conflict in tactical considerations as to whether each defendant should take the stand.
State v. Karston 15 involved a conflict because both defendants pleaded guilty to murder which carried a penalty of life imprisonment or death by hanging. The common counsel pleaded for leniency on behalf of one defendant, impliedly throwing the other defendant on the mercy of the court.
In all these cases, a situation was encountered in which the attorney could not efficiently represent both people because differences in trial strategies dictated conflicting interests. Standing alone, mere variances in facts as to the actions of the codefendants in the alleged crime do not come within the requirement of conflicting interests.
In State ex rel. Favors v. Tucker 16 counsel represented two codefendants, pleading one guilty. The other plead not guilty and counsel zealously pursued his defense. The court found no impropriety or conflict. People v. Fernandez 17 found no conflict where the attorney had given capable, zealous and industrious representation and the trial court had instructed the jury on the possibility of conflict.
Mueller shows no...
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