Nelson v. State
| Decision Date | 30 March 1972 |
| Docket Number | No. 147,147 |
| Citation | 195 N.W.2d 629,54 Wis.2d 489 |
| Parties | John P. NELSON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. St. |
| Court | Wisconsin Supreme Court |
May 6, 1969, following a plea of guilty, the plaintiff in error (hereinafter defendant) was convicted of manslaughter, in violation of sec. 940.05(1), Stats., and sentenced to an indeterminate term of not more than six years.
April 22, 1970, defendant moved the trial court to vacate his plea of guilty. August 13, 1970, defendant filed a postconviction motion with the trial court pursuant to sec. 974.06, Stats. September 3, 1970, the trial court entered orders denying both motions. Writs of error have issued to review these orders.
James H. McDermott, State Public Defender, Madison, for plaintiff in error.
Robert W. Warren, Atty. Gen., Thomas J. Balistreri, Asst. Atty. Gen., Madison, for defendant in error.
FACTS.
The offense is alleged to have occurred on November 17, 1968. December 4, 1968, there was an extensive preliminary examination. It appears that the defendant and his wife, Claudia, were not living together, she having commenced an action for divorce in early June, 1968. Claudia and the deceased were employed at the same tavern. On the night of the alleged offense, Claudia worked until closing time. The deceased was present in the tavern at the time of closing, but not working, and Claudia gave him a ride home. Shortly after they arrived in a parking lot near the deceased's apartment, the defendant drove his automobile up behind Claudia's automobile. The defendant, a man six feet two inches tall and weighing 295 pounds, came over to Claudia's automobile, pulled the deceased out of the car, and proceeded to physically abuse him. The incident ended with the deceased getting off the ground and going to his apartment. He died a short time later. A pathologist testified the deceased had been severely beaten about the face and body, had suffered two broken ribs, and that the cause of death was a ruptured spleen. The court found probable cause, and the defendant was bound over for trial.
Defendant entered a plea of not guilty, and not guilty by reason of insanity. Two court-appointed psychiatrists found the defendant was not mentally ill, and not mentally ill at the time of the alleged offense.
The case proceeded to trial before a jury on May 5, 1969. The defendant had been released on bond pending trial. In midafternoon of the first day of trial the case was adjourned until 2 p.m. the following day to allow for the availability of medical witnesses for the state.
When trial commenced the following day, the defendant asked leave to withdraw his plea of not guilty and enter a plea of guilty. The plea of guilty was ultimately accepted by the trial court and the defendant was convicted of the offense charged. Sentence was imposed the same day.
At the request of the defendant, this court appointed attorney John P. Foley to represent the defendant in postconviction proceedings. A motion to vacate the plea of guilty was filed with the trial court, supported by an affidavit of the defendant, which alleged:
'. . . (S)aid plea was not made voluntarily after proper advice from council (sic) and with a full understanding of the consequences of said plea but rather it was obtained unfairly to the ignorance and fear of said affiant.'
Prior to the disposition of the motion by the trial court, Attorney Foley filed a 'no merit' report with this court pursuant to Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. The defendant responded to the no-merit report and his contentions were considered by this court in its unpublished opinion #70/117, wherein it was determined that an appeal would be wholly frivolous and without merit. Attorney Foley was relieved of representation of the defendant.
Attorney Foley then advised the trial court of the issuance of the unpublished opinion by this court and also of the fact that he had been relieved as counsel for defendant. The records of this court reflect that the defendant was mailed a copy of its unpublished opinion. Attorney Foley also informed the defendant of that fact by letter and further informed the defendant that if he wished to pursue his motion to withdraw his plea of guilty, he should so advise the trial court prior to June 29, 1970, the date set for the hearing thereon, and that if the defendant failed to so advise the trial court, he assumed the motion would be dismissed. The record reflects that the defendant at no time responded to the advice of Attorney Foley in regard to informing the trial court as to his position on the motion to withdraw his plea of guilty.
In the meantime, the defendant filed with the trial court a petition for postconviction relief pursuant to sec. 974.06, Stats.
September 3, 1970, by a memorandum opinion, the trial court denied the motion to withdraw the plea and the motion for postconviction relief pursuant to sec. 974.06, Stats.
ISSUES.
On this appeal, we deem it necessary to consider only two of the issues raised by the defendant:
(1) Did the trial court err in denying defendant's motion to vacate his plea of guilty without holding an evidentiary hearing?
(2) Did the trial court err in not granting an evidentiary hearing on defendant's motion for postconviction relief pursuant to sec. 974.06, Stats.?
MOTION TO VACATE PLEA OF GUILTY.
Under the circumstances of this case, it was proper for the trial court to deny the defendant's motion to vacate his plea of guilty. Attorney Foley timely advised the defendant that if he wished to proceed with the motion he should so advise the trial court and that if the defendant did not do so he assumed the motion would be dismissed. Defendant took no action and on September 3, 1970, the trial court dismissed the motion.
On this appeal, however, the defendant argues that an evidentiary or plenary hearing is required in all cases concerning a motion to vacate or withdraw a plea of guilty except where the motion on its face is patently frivolous or nonsensical. This issue presents a case of first, impression in this state.
In State v. Reppin (1967), 35 Wis.2d 377, 386, 151 N.W.2d 9, 14, this court adopted that portion of the Standards Relating to Pleas of Guilty proposed by the American Bar Association relating to the withdrawal of guilty pleas:
1
The question of when a defendant is entitled to an evidentiary or plenary hearing on a motion to withdraw or vacate a guilty plea under Rule 32(d) has been extensively considered by federal courts in many jurisdictions. See Annot., Withdrawal of Plea of Guilty or Nolo Contendere, Before Sentence, Under Rule 32(d) of Federal Rules of Criminal Procedure, 6 A.L.R.Fed. 665, 678, sec. 6; also Annot., Withdrawal of Plea of Guilty or Nolo Contendere, After Sentence, Under Rule 32(d) of Federal Rules of Criminal Procedure, 9 A.L.R.Fed. 309, 327, sec. 6.
We find the decisions of the various federal courts to be persuasive. These authorities reflect the rule that a hearing is to be liberally granted if the motion or request is made prior to judgment or sentence. United States v. Joslin (1970), 140 U.S.App.D.C. 434 F.2d 526.
Where, however, the motion is made after judgment and sentencing to correct a manifest injustice, it is within the discretion of the trial court whether or not to grant a hearing on the motion. Thus, where the record sufficiently refutes the allegations raised by the defendant in the motion, no hearing is required.
In United States v. Shillitani (D.C.N.Y.1954), 16 F.R.D. 336, it was held that transportation of a defendant for a hearing is not compelled whenever a defendant is prepared to create a formal issue but a hearing is required only when the defendant raises a substantial issue of fact.
In United States v. Tivis (D.C.Texas 1969), 302 F.Supp. 581, 583, in a Rule 32(d) proceeding, the petitioner alleged:
'. . . (T)hat his plea of guilty was not voluntarily made, but was the product of negotiation, coercive advice of counsel and psychological persuasion by petitioner's counsel acting by and through his wife.'
In denying the petitioner an evidentiary hearing, the Texas Federal Court stated:
'. . .
'These conclusionary allegations are clearly insufficient to justify relief or to raise a fact issue upon which a hearing should be held. . . .'
In further discussing the issue, the court held that the petitioner should be required to plead sufficient facts in support of his allegations to raise a question as to whether or not a manifest injustice would result from a denial of his motion. A motion under Rule 32(d) is considered broader in some respects than a motion under 2255 (28 U.S.C.A., sec. 2255, the federal counterpart of sec. 974.06, Stats.) since 'manifest injustice' may result from irregularities or defects which would not reach constitutional magnitude and which would not be cognizable under 2255 or by way of habeas corpus.
Similarly, the Supreme Court of Michigan has held that the defendant, in a motion to withdraw a plea of guilty after...
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