Rosado v. State
| Citation | 234 N.W.2d 69,70 Wis.2d 280 |
| Decision Date | 28 October 1975 |
| Docket Number | No. S,S |
| Parties | Miguel ROSADO, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. tate 228 (1974). |
| Court | Wisconsin Supreme Court |
Robert J. Paul, Assistance State Public Defender, Madison, for plaintiff in error.
Wm. L. Gansner, Asst. Atty. Gen., Madison, for defendant in error.
This review involves a 1973 judgment of conviction of the plaintiff in error, Miguel Rosado, for sexual intercourse with a child in violation of sec. 944.10(2), Stats., Rosado's sentence to a prison term of fourteen years, and the trial court's denial of Rosado's motion to reduce that sentence.
We reject the complaints made by the plaintiff in error to the sentencing procedures employed by the trial court, but we find an abuse of discretion by the trial court in imposing the fourteen-year sentence and we reduce that sentence to seven years.
Prior to the commission of the offense for which he was convicted, Rosado was living in Waukesha, Wisconsin. He had a steady job, a common-law wife and five children, a house with a mortgage, and no prior criminal record. During 1972 he met Karen Williams, a fifteen-year-old girl living with her mother in Milwaukee. Although Mrs. Williams initially objected to the relationship between Karen and Rosado, she acquiesced after Karen insisted that she would see him on the sly unless they were permitted to meet openly. Karen had first told Rosado that she was eighteen, but both she and her mother revealed her true age once the relationship came out into the open. On November 7, 1972, Rosado cosigned a note with Mrs. Williams so that she could purchase a car. At that time it came out that he was thirty-three years old, and had a common-law wife.
On November 17, 1972, Rosado picked Karen Williams up at school, and they drove to his cousin's house in Chicago. They returned to Milwaukee two days later and stayed together at the Park Hotel. At about 12:30 a.m. on November 20, 1972, they voluntarily engaged in the one act of intercourse which is the basis of the conviction.
A complaint and warrant were issued on November 27, 1972, but Rosado was not arrested until May 13, 1973. After bind-over defendant pled not guilty, and a jury trial was scheduled for November 14, 1973. On that date, however, the prosecution and defense announced to the court that a plea bargain had been reached, and that Rosado wished to change his plea to guilty in return for a recommendation of probation. The trial court inquired at length into the voluntariness of the plea, and informed Rosado that it was not bound by any agreement between him and the district attorney. Policewoman Janet Carter was called to provide the factual support for the plea. She testified that Karen Williams had told her that in addition to the act of sexual intercourse at the Park Hotel, she and defendant had had intercourse twice while in Chicago. After the defendant was questioned, the court took Karen, Mrs. Williams, and Policewoman Carter into chambers for an off-the-record conference. When they returned the court announced that it would order a presentence report before any further proceedings, including acceptance of the guilty plea, took place.
Another hearing was held on December 14, 1973. The judge immediately accepted Rosado's guilty plea and found him guilty of one violation of sec. 944.10(2), Stats. (statutory rape). By this date all parties had received copies of the presentence report. This report did not, however, contain any sentencing recommendation. But Mrs. Lupe King, a probation and parole officer, was present at the hearing, and she had beeen asked by the trial court to investigate 'an additional matter,' to report her findings to the court, and to make a sentencing recommendation. This 'additional matter' was a trip made by Rosado and Karen to Puerto Rico. King testified that Mrs. Williams and Karen had told her that Karen and the defendant had left Milwaukee on Christmas Eve, 1972, and that Karen had not returned until Mother's Day, which was sometime in May, 1973. During part of this time, according to Karen and Mrs. Williams, Karen and Rosado had lived together in Puerto Rico, and had engaged in consensual acts of intercourse, fellatio, and sodomy. Rosado subsequently left Puerto Rico and returned to Wisconsin without Karen, who was left stranded. Eventually, according to the story told to Mrs. King, Karen returned to Wisconsin by using an airplane ticket sent to her by her mother. Policewoman Carter testified that she had talked to Karen about this incident upon her return to Wisconsin, when Karen was in the hospital for certain bladder and kidney ailments. Both Mrs. Williams and Karen were present at this hearing, but neither the court nor the parties had them testify.
Mrs. King then recommended incarceration at Waupun, and the trial court sentenced Rosado to fourteen years' imprisonment. When the defense counsel claimed total surprise in regard to this Puerto Rican incident, the trial court recessed the hearing then returned to vacate the sentence it had just imposed, and to schedule further proceedings for December 17, 1973.
On December 17, 1973, another hearing was held. Karen Williams, although present, did not testify. Mrs. Williams took the stand to state that Karen had been gone from Christmas Day, 1972, to Mother's Day, 1973. On March 4, 1973, Mrs. Williams received a postcard from Karen from O'Hare Airport in Chicago, and did not hear from her again until she telephoned from Puerto Rico in May of 1973. Mrs. Williams testified that Mrs. King and Policewoman Carter had testified accurately, as far as she knew, about the Puerto Rican incident. She also stated that Rosado had come to her after he returned to wisconsin and offered to pay for Karen's way back if Mrs. Williams would agree not to press charges. After several character witnesses testified in Rosado's favor, the district attorney reiterated that he had not known of the Puerto Rican incident when he entered into the plea agreement, but still felt bound by this agreement to a probation recommendation. Mrs. King recommended an extensive period of incarceration, and the trial court again imposed a fourteen-year sentence.
Post-conviction motions to reduce sentence and to vacate the guilty plea and sentence were heard on April 14, 1974. At the hearing counsel for Rosado claimed the existence of new factors relative to sentencing. These new factors were, according to counsel, Rosado's explanation of the Puerto Rican incident, which he had never given. The court refused to hear Rosado, and denied both motions by an order entered August 11, 1974.
Rosado raises objections to the trial court's procedures in imposing the fourteen-year sentence and also to the procedures followed in denying his post-conviction motions. None of these complaints has any merit.
The defendant claims that the trial court violated sec. 972.15(1), Stats., by receiving and considering the presentence report before accepting his guilty plea. This statute provides that the court may order a presentence investigation 'after conviction.' Here, the trial court ordered and considered a presentence report after it had completed a careful inquiry into the propriety of the defendant's guilty plea, but before it had formally accepted that plea. While this is a literal violation of sec. 972.15(1), it was at most a harmless error which in no way prejudiced the right of the defendant to a fair sentencing procedure. The rule that presentence reports should be considered only after conviction is designed to prevent possibly prejudicial information from coming to the attention of the judge when he is still either considering the guilt or innocence of the defendant in a trial to the court, or supervising a jury trial. 1 This type of prejudice obviously cannot arise in the context of a guilty plea. In fact, the Federal Rules of Criminal Procedure allow the trial court to consider a presentence report before accepting a guilty plea, usually in order to decide whether or not to follow a plea-bargain arrangement between the prosecutor and the defense. 2 While the Wisconsin statute does not permit this practice, the consideration of the presentence report before formal acceptance of a guilty plea is not inherently prejudicial to the defendant. This is especially so in this case, where the trial court had on November 14th carefully assured itself of the voluntariness of the plea, and the factual basis for the crime, before it even ordered the presentence report. Acceptance of the plea on December 14th was a mere formality, and reception of the presentence report before that date did not prejudice the defendant.
The defendant next complains that the trial court violated sec. 972.15(2), Stats., by receiving from Mrs. Williams information relative to sentencing and from Mrs. King an alleged oral presentence report, without disclosing any of this information to defendant's attorney prior to the December 14th sentencing hearing. This statute requires that the judge shall disclose the contents of 'a presentence investigation report' to defense counsel when it is received. In Waddell v. State, 3 this court also decided that a trial court should reveal to the defendant the nature of information provided it by interested third parties. Assuming arguendo that the language of the statute includes an oral report such as the one allegedly given by Mrs. King, and that Waddell covers information provided by Mrs. Williams, it still does not follow that failure to disclose immediately this information prejudiced the rights of the defendant so as to amount to a denial of due process. In this case the information provided by Mrs. King and Mrs. Williams related to the Puerto Rican affair. After it became apparent at the December 14th hearing that the introduction of this evidence had surprised defense counsel, the trial court vacated the sentence,...
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