Pulaski v. State

• Decision Date: 06 March 1964
• Citation: 126 N.W.2d 625,23 Wis.2d 138
• Parties: Gerald Joseph PULASKI, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 625

126 N.W.2d 625

23 Wis.2d 138

Gerald Joseph PULASKI, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

March 6, 1964.

Concurring Opinion March 11, 1964.

Rehearing Denied April 28, 1964.

Francis J. Demet, Milwaukee, for plaintiff in error.

George Thompson, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, William J. McCauley, Dist. Atty., Donald W. Steinmetz, Asst. Atty. Gen., Milwaukee, for defendant in error.

Gerald Joseph Pulaski, hereinafter called the 'defendant,' seeks a review of an order which denied his motion to withdraw a plea of guilty and for a new trial.

The defendant was arrested, waived preliminary examination, and upon arraignment before the circuit court of Milwaukee county on April 18, 1961, waived a jury and pleaded not guilty to three charges of burglary. Trial was set for May 5th at which time the defendant changed his plea to guilty. The court took testimony of the three burglaries charged and, with the consent of the defense counsel and upon the assurances of the district attorney no warrants would be issued, took testimony of other burglaries in which the defendant had participated. The case was then adjourned and subsequently adjourned on three occasions to September 22nd on which day testimony was taken of additional burglaries. In all, testimony was taken on 24 burglaries admitted by the defendant.

The case was adjourned to October 13th for sentencing, on which date the court made a finding of guilty and sentenced the defendant to a term of eight years on each of the three counts to be served concurrently in the State Prison at Waupun. Subsequently on December 14, 1961, the defendant pleaded guilty to five counts of burglary in the Kenosha county court and was sentenced to serve terms of five years to run concurrently with the eight year sentences received in this case. On February 22, 1962, the defendant was charged with seven counts of burglary in Ozaukee county, to which he pleaded not guilty. He was found guilty by a jury and on October 24, 1962, sentenced to seven concurrent terms of 10 years to be served consecutively to the Milwaukee sentences.

On September 20, 1962, almost a year after the imposition of the Milwaukee sentences and before the imposition of the Ozaukee sentences, the defendant, now indigent, filed in the circuit court of Milwaukee county a motion for a new trial under sec. 958.06, Stats., and on October 4th a motion to withdraw his plea of guilty, to set aside the judgment and vacate the sentences. The defendant's request for counsel was denied, by Judge Coffey who had sentenced the defendant and the case was transferred to the other criminal branch of the circuit court. Thereafter, the motion for a new trial and the motion to withdraw the plea of guilty were treated as one motion and the case reassigned on request of the defendant until it was finally assigned to the branch of the circuit court presided over by Judge Decker.

The motion was heard on January 7, 1963, at which time the defendant appeared with counsel furnished by the State Bar of Wisconsin. No testimony was taken but the matter was fully considered on the record, the affidavits of the defendant, the counter-affidavits of the state, and the arguments of counsel.

Upon denial of the motion, the defendant applied to this court for a writ of error to review the judgment of conviction and the order denying the withdrawal of the plea and a new trial. The time for appeal from the judgment having expired, the writ of error was granted only to review the order denying the motion and present counsel was appointed to represent the indigent defendant.

HALLOWS, Justice.

On the hearing of the motion, no question was raised by the state that the court was without jurisdiction, but on this appeal the question is raised whether a motion for a new trial can be properly made after the sentencing on a plea of guilty. A motion for a new trial where a sentence has been imposed upon a finding of guilty based on a plea of guilty implies the withdrawal of the plea. Likewise, a motion to withdraw the plea of guilty and to vacate the judgment was sentence implies the necessity of a subsequent trial. It apparently has been assumed without question and the practice up to this date has been that a motion for a new trial under sec. 958.06, Stats., was a proper remedy when a defendant has been sentenced on a plea of guilty. ¹

The state contends such a motion for a new trial is not proper because there has been no trial within the meaning of the section and therefore there can be no new trial. In Belter v. State (1922), 178 Wis. 57, 189 N.W. 270, it was stated a plea of guilty was a waiver of any trial. Certainly the plea avoids a contest of disputed facts the same as a confession of judgment or the failure to answer in a civil action. A court is permitted to receive a plea of guilty and to enter a judgment thereon under sec. 957.25 and a conviction may rest upon a plea of guilty without any supporting testimony being taken. Sec. 959.01, Stats. A trial is defined as a judicial examination of the issues between the parties whether they be issues of law or of fact. Sec. 270.06; see also 88 C.J.S. Trial § 1, page 19. We must agree the new trial contemplated by sec. 958.06 is a retrial of issues and the section affords no remedy for one convicted on his plea of guilty.

A motion to withdraw a plea of guilty and for a trial, as we deem the defendant's motions to be, although not governed by sec. 958.06 is a motion directed to the discretion of the court in the interest of justice which the court has the inherent power to hear. If the motion is granted, the judgment or conviction must be vacated and the sentence set aside. But the motion is not governed by sec. 269.46, Stats., relating to relief from a judgment or by the rules prohibiting a court from modifying its judgments after the expiration of the term of court any more than such section and rules apply to the jurisdiction of the court to hear a writ of habeas corpus. A motion to withdraw a plea of guilty and for a trial after conviction stands upon other grounds.

Pleas of guilty are not to be lightly treated by the courts. Out of consideration for the rights of persons accused of crime, courts must be careful not to accept a plea of guilty unless it is made voluntarily after proper advice and with full understanding of the consequences. '[O]n timely application, the court will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertence. * * * The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just.' Kercheval v. United States (1927), 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009; see also Annos., Right to Withdraw Plea of Guilty, 20 A.L.R. 1445, 66 A.L.R. 628.

As to the timeliness of the application to withdraw the plea of guilty, it has been stated the withdrawal and substitution of the plea cannot be permitted after sentence. 2 Bishop's, New Criminal Procedure, p. 586, sec. 747. We think, however, justice demands that even after sentence on a plea of guilty and perhaps more so a motion to withdraw the plea and for a trial may be made and is timely if served and filed within a year from the finding of guilty. To require the hearing of the motion to be had and the order granting the motion to be made within the year seems to be unjust. One convicted upon a plea of guilty ought not be denied relief in a proper case because a trial court for valid reasons of pressure of work or otherwise cannot hear and decide the motion within a time limit set in reference to the diligence of the petitioner. A period of one year is a generous allowance of time for one convicted to make a motion to change his plea and for a trial if there is any merit to his cause. One who seeks in the name of justice to withdraw his plea of guilty on the grounds it was given or obtained through ignorance, fear, inadvertence or in violation of his constitutional rights ought to be aware of and make known his complaint within a year. There may be an exceptional case or two but normally for a trial court to entertain a motion made beyond a year would seem to be an abuse of discretion.

The year within which such a motion may be made does not start from the date of the plea of guilty. In many cases, pleas are made, accepted, findings made, and sentences imposed the same day; but in other cases, testimony is taken in connection with the plea of guilty and a finding deferred. In the instant case the plea was made on May 5th and testimony taken on the plea and of other burglaries with the consent of the defendant and the assurance of the district attorney he would not issue additional warrants. In order to protect the defendant from future prosecution, such testimony is given prior to the finding of guilty although such practice also serves the purpose of informing the court for its consideration of the sentences to be imposed. Until the finding of guilty by the court is made, the plea stands unaccepted and the year within which a motion to withdraw the plea should be made ought not start to run. Under this view, the motion of the defendant was timely made.

While the defendant in his supporting affidavits to the motion claims many reasons why he should be allowed to withdraw his plea, these grounds on this appeal have been combined into several major contentions which will be discussed seriatum.

His major contention is based on the ground he had been held incommunicado for 36 hours, had been subjected to physical punishment by the police officers during that period, and his person, car, and house were searched without a warrant in violation of his constitutional rights. In his affidavits the defendant states he was arrested while driving his car home from a...