Reiff v. State

• Decision Date: 04 February 1969
• Docket Number: No. 20,20
• Citation: 164 N.W.2d 249,41 Wis.2d 369
• Parties: Richard C. REIFF, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.
• Court: Wisconsin Supreme Court

Page 249

164 N.W.2d 249

41 Wis.2d 369

Richard C. REIFF, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. 20.

Supreme Court of Wisconsin.

Feb. 4, 1969.

Zubrensky, Padden, Graf & Bratt, Milwaukee, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., Madison, David J. Cannon, Dist. Atty., and Terence T. Evans, Asst. Dist. Atty., Milwaukee County, Milwaukee, for defendant in error.

HEFFERNAN, Justice.

In State v. Reppin (1967), 35 Wis.2d 377, 151 N.W.2d 9, this court restated and clarified the factors to be considered when reviewing the order of a trial court on a motion to withdraw a plea of guilty. It was therein pointed out that our previous holdings, notably Pulaski v. State (1964), 23 Wis.2d 138, 126 N.W.2d 625, established that a motion to withdraw a plea of guilty and for a new trial 'is a motion '* * * directed to the discretion of the court in the interest of justice * * *. '' Reppin, supra, page 384, 151 N.W.2d 9, page 13.

We restated the Pulaski rule that:

"* * * the court will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertance * * * (or) * * * if for any reason the granting of the privilege (of withdrawing the plea and standing trial) seems fair and just." Reppin, supra, page 384, 151 N.W.2d 9, page 13.

We reiterated the statement from Van Voorhis v. State (1965), 26 Wis.2d 217, 223, 131 N.W.2d 833, that 'an accused has a right to withdraw his plea if he establishes '* * * in fact a denial of a relevant constitutional right, such as right to counsel. '' Where such a denial has been established, we denominated the refusal to permit the withdrawal of the plea as an abuse of discretion as a matter of law. The burden of proving adequate grounds for the withdrawal of a plea is upon the movant, and must be sustained by clear and convincing evidence. In Reppin we, for the first time, adopted the 'manifest injustice' test proposed by the American Bar Association Project on Minimum Standards for Criminal Justice. Two of the standards therein adopted are relevant to this writ of error.

"(ii) Withdrawal is necessary to correct a manifest injustice whenever the defendant proves that:

"(1) he was denied the effective assistance of counsel guaranteed to him by constitution, statute, or rule;

"(2) * * *

"(3) the plea was involuntary, or was entered without knowledge of the charge or that the sentence actually imposed could be imposed; or

"(4) * * *." Reppin, supra, page 385, footnote 2, 151 N.W.2d 9, page 14.

Mr. Justice Hallows in Reppin summarized the 'manifest injustice' rule by stating, 'The test at this stage is not whether the defendant is guilty but whether he was fairly convicted.' Reppin, supra, page 386, 151 N.W.2d 9, page 14.

The defendant herein contends that he did not voluntarily waive counsel because at the time he refused counsel he was in a 'dazed' state or, as he put it in his motion to the trial court, he was 'so upset I was not able to realistically face the situation which confronted me.' He also contends that his was not an intelligent or voluntary waiver or plea because he made it without an understanding of the elements of the charge, the defenses that might be available to him, and the sentencing alternatives.

The essence of the defendant's motion is the contention that his conviction was manifestly unjust because he was denied the right to an attorney, who could have informed him of all the ramifications of possible defenses and sentencing alternatives.

Certainly, the trial judge could hardly have made clearer the right to counsel at state expense. Almost five pages of the record are devoted to the arraigning judge's explanation of the right to counsel and his searching questions to determine whether the defendant did in fact wish to waive counsel. On at least seven occasions during the course of arraignment and prior to the plea, the defendant stated he did not want counsel appointed for him, and on at least three occasions he was told that the crime with which he was charged carried a potential prison sentence of two years. The defendant was asked the nature of the charge and he correctly stated, 'abandonment.' In response to a question, he acknowledged that no threat or promises of any kind were the inducement for his plea. To the court's question, 'Are you doing this entirely freely and voluntarily?,' the defendant answered, 'yes.'

The answers to all questions were responsive, and while one cannot applaud the judgment of a person accused of serious crime who refuses counsel, the answers were indicative of a normal intelligence and a ready perception. As the trial judge stated on the motion for the withdrawal of the plea:

'* * * there is no physical manifestation recorded in the transcript at any time of any lack of capacity on the part of the defendant at any time not to comprehend the proceedings against him by virtue of any subjective mental state.'

It is perfectly apparent that the defendant has failed to establish by clear and convincing evidence that his plea was involuntary by virtue of a 'dazed' condition which prevented a proper understanding and appreciation of the nature of the charges against him and the consequences of his plea.

Defendant points out, however, that the trial judge failed to follow all of the guidelines suggested in State ex rel. Burnett v. Burke (1964), 22 Wis.2d 486, 126 N.W.2d 91. An examination of the transcript shows this contention to be literally, but not substantially, true. The trial judge specifically established three of the criteria suggested in Burnett at page 494, 126 N.W.2d at page 95. He established the 'accused's understanding of the nature of the crime with which he is charged and the range of punishments which it carries,' and 'whether any promises or threats have been made to him in connection with his appearance, his refusal of counsel, and his proposed plea of guilty,' and he made 'sure that the defendant understands that if a pauper, counsel will be provided at no expense to him.' We are also satisfied that, by his questioning, the trial judge was able 'to determine the extent of the defendant's education and general comprehension.'

The one guideline not clearly covered by the trial judge's question is No. 4 of the Burnett guidelines, which directs that the judge 'alert the accused to the possibility that a lawyer may discover defenses or mitigating circumstances which would not be apparent to a layman such as the accused.'

Even this guideline...