Peters v. State, S
| Decision Date | 30 March 1971 |
| Docket Number | No. S,S |
| Citation | 184 N.W.2d 826,50 Wis.2d 682 |
| Parties | Stanley D. PETERS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 157. |
| Court | Wisconsin Supreme Court |
Stanley D. Peters, plaintiff in error (hereinafter 'defendant'), pleaded guilty and was convicted of burglary on March 23, 1970. The defendant was sentenced to a term of not more than five years in the Wisconsin state prison.
On April 23, 1970, by order of the Supreme Court, Attorney Charles J. Drury was appointed to represent the defendant on postconviction remedies.
On September 25, 1970, the defendant made a motion for modification of the sentence or, in the alternative, for permission to withdraw his plea of guilty. An order was entered denying the motion.
Writs of error were issued by the Supreme Court to review both the judgment and the order denying defendant's motion.
Additional facts will be stated in the opinion.
Charles J. Drury, Portage, for plaintiff in error.
Robert W. Warren, Atty. Gen., William A. Platz and Robert D. Martinson, Asst. Attys. Gen., Madison, Joseph P. Koberstein, Dist. Atty., Columbia, Co., Portage, for defendant in error.
Two issues are raised by writs of error:
(1) Did the trial court abuse its discretion in refusing to allow a withdrawal of the guilty plea; and
(2) Did the trial court abuse its discretion in selecting the sentence imposed?
Withdrawal of Guilty Plea.
The defendant asks this court to find that indigent defendants are entitled to one change of appointed counsel as a matter of right. The defendant requested the trial court to appoint new counsel for him because he and his first appointed counsel were 'incompatible as to the line of defense,' and because the defendant wanted to get 'another legal opinion.'
The defendant and his companion (who was initially his co-defendant) were arrested for the burglary of the Thompson Electric Motor Service Company in Columbia county. Guns stolen from the Thompson Company were found in the defendant's car.
At the preliminary hearing both defendants were found to be indigent, and Lewis W. Charles was appointed to represent both of them. Later, at the arraignment, both defendants waived the reading of the information, and the following occurred:
'As to the burglary charge, how do you plead?
'Are these matters to be joined for trial?
There is no expressed indication in the record as to what the incompatibility between defendant and his counsel related to. However, later remarks by defendant indicate he thought that he could not be guilty of burglary because he did not enter the building with White, but only remained in the car as a lookout. Apparently counsel later explained to him that this was no defense and that under sec. 939.05 Stats. (parties to a crime), he was as guilty as White. This supposition is based on remarks by defendant when the judge was questioning him as to his understanding of the charge prior to accepting his guilty plea. Defendant's remarks were as follows:
On the basis of the above facts the state argues that the defendant's voluntary plea of guilty constitutes a waiver of his right to complain about the trial court's failure to appoint him new counsel upon request. The defendant argues that the trial court's refusal to appoint new counsel left him without the 'effective assistance of counsel' and constitutes a manifest injustice, entitling him to withdraw his guilty plea.
The grounds for withdrawal of a guilty plea were set forth in State v. Biastock (1969), 42 Wis.2d 525, 529, 167 N.W.2d 231, 233:
'In State v. Reppin (35 Wis.2d 377, 151 N.W.2d 9), this court adopted the 'manifest injustice' test as set forth in the American Bar Association Project on Minimum Standards for Criminal Justice--Pleas of Guilty.
'Under those standards a defendant should be permitted to withdraw his plea of guilty if he is able to prove that his plea was made under any of the following situations:
Defendant relies on the first ground listed in Biastock, supra, and contends that...
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...but the decision is for the court to make.' State v. Johnson (1971), 50 Wis.2d 280, 283, 184 N.W.2d 107, 109; Peters v. State (1971), 50 Wis.2d 682, 687, 184 N.W.2d 826; see also Baker v. State (1893), 86 Wis. 474, 476, 56 N.W. There is some indication in the record that the attorney whom R......
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...a substitution of appointed counsel on the grounds of dissatisfaction with the first counsel the court appoints. Peters v. State, 50 Wis.2d 682, 687, 184 N.W.2d 826, 829 (1971). Additionally, it appears from the record that although the Fehrmans did not ultimately allow the court-appointed ......
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