Rahhal v. State

Decision Date25 June 1971
Docket NumberNo. S,S
Citation187 N.W.2d 800,52 Wis.2d 144
PartiesPhillip Easa RAHHAL, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 177.
CourtWisconsin Supreme Court

The plaintiff in error Phillip Easa Rahhal was charged with possession with intent to utter a forged check (sec. 943.38(2), Stats.) and of forgery (sec. 943.38(1), Stats.). Following his unsuccessful attempt to cash the forged check at the State Bank of Hales Corners, he was arrested. The sum of $700, which he had on his person, was confiscated by the sheriff's department. On this charge he appeared with his attorney Walter Steininger before the trial judge. The return of the funds was denied and Mr. Steininger was appointed counsel on the ground Rahhal was indigent. A plea of not guilty was entered, a jury trial waived, and the case was set for trial on a day certain.

Prior to that date Rahhal was charged with forgery of another check and he again appeared before the trial court with Mr. Steininger who was appointed counsel to defend him on the second charge. A plea of not guilty was made, a jury trial waived, and a request made that the two cases be consolidated for trial.

On the day set for trial Mr. Steininger advised the court that he had just been informed by Rahhal that Rahhal wished to dismiss him as counsel and have Mrs. Alyce Neff represent him. The court denied this request and ordered the trial to proceed. Upon Rahhal's objection it was found there was a defect in the waiver of a jury trial in the case involving the forgery so the cases were separated and the trial proceeded on the charge of possession with intent to utter a forged check.

Rahhal was found guilty and sentenced to an indeterminate term of 10 years. Immediately following sentence, counsel suggested other charges might be disposed of. After consultation between Rahhal and counsel, Rahhal changed his plea and pleaded guilty to the charge of forgery. The plea was accepted and testimony taken to verify the offense. Later, twenty other forgery counts were read in the record. Rahhal was found guilty and was sentenced to an indeterminate term of 10 years to be served concurrently with the sentence on the first charge.

About a year later, Rahhal moved to vacate or withdraw his plea of guilty. This motion was denied. The writs of error were issued to review the conviction and the order denying the withdrawal of the plea of guilty.

Robert E. Sutton, Samson, Friebert, Sutton & Finerty, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., William A. Platz and Thomas J. Balistreri, Asst. Attys. Gen., Madison, E. Michael McCann, Dist. Atty. of Milwaukee County, Milwaukee, for defendant in error.

HALLOWS, Chief Justice.

Rahhal claims he was denied his constitutional right to assistance of counsel for his defense and therefore his conviction should be reversed. It is argued that an indigent has a constitutional right to pick his own counsel at public expense. Rahhal relies on Crooker v. California (1958), 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448, and Chandler v. Fretag (1954), 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4. He claims Mr. Steininger was not of his choosing, but as we read the record this claim has no basis in fact. While Rahhal contends he only wanted to hire Mr. Steininger to represent him for the return of the $700, the record shows the trial counsel appeared in court because he was retained by Rahhal, was appointed to represent him because of indigency, and prepared the case for trial. It was not until the day of the trial that Mr. Steininger was told by Rahhal that he wanted other counsel.

We do not read the cases cited by Rahhal as substantiating his argument that the right to counsel at public expense includes counsel of one's own choosing. Besides, this court has held to the contrary and has said, 'He cannot select and he cannot discharge the court-appointed attorney nor can he insist upon replacement counsel being appointed. He can request the court to name a different attorney, 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. 1088.

There is some indication in the record that the attorney whom Rahhal claims he wanted had appeared on the day of trial or shortly before in other cases and claimed to represent the defendant by request. Defendants in criminal cases often as a defense technique attempt to secure last-minute substitution of counsel to delay the trial and the practice has plagued the criminal courts in Milwaukee county. If such practice is recognized and allowed to continue, it will seriously interfere with the administration of criminal justice and the orderly and efficient scheduling and trying of cases. We agree with the majority of federal courts which have repeatedly held the right to counsel cannot be manipulated so as to obstruct the orderly procedure for trials or to interfere with the administration of justice. See United States ex rel. Baskerville v. Deegan (2d Cir., 1970), 428 F.2d 714, 716, and the cases cited therein.

Moreover, in an analogous situation this court has held that when the moment of trial has arrived and the witnesses are present, the trial court has the right and duty to weigh the impact of a requested adjournment on other persons involved in determining whether defense counsel should be substituted or sua sponte be permitted to withdraw from the case. Cullen v. State (1965), 26 Wis.2d 652, 658, 133 N.W.2d 284. We conclude on this record the trial court did not abuse its discretion in not granting the last-minute request for a substitution of appointed counsel.

Rahhal contends it was error for the trial court not to grant his motion to withdraw his plea and to hear the motion because the trial judge was instrumental in coercing the plea. The case of Tyler v. Swenson (8th Cir., 1970), 427 F.2d 412, is relied on for the proposition the same judge should not hear such a motion. In Tyler the defendant claimed the trial court threatened him in chambers with an additional 30-years sentence if he did not plead guilty. This testimony was corroborated by the defendant's mother and his attorney. The trial court heard the motion and interjected his own recollections which were contrary to those of the defendant. The appellate court held the trial judge had made himself a material witness and therefore the hearing was not fair or in compliance with constitutional standards.

On a broader front, arguments have been made and we are aware of the attitude of many prisoners in state prisons who believe it is useless for them to petition the trial judge to pass on post-conviction motions and motions to withdraw a plea of guilty. They feel the trial judge has decided the matter and is not inclined to change his mind. This view is based upon an utter lack of confidence in the integrity and impartiality of trial judges.

In the federal system there is a split of authority whether the sentencing judge is disqualified from conducting a hearing on a post-conviction motion attacking the sentence. 28 U.S.C.A. § 2255 provides:

'A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.'

Two federal...

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