Smith v. State
| Citation | 210 N.W.2d 678,60 Wis.2d 373 |
| Decision Date | 02 October 1973 |
| Docket Number | No. S,S |
| Parties | Lemuel SMITH, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 144. |
| Court | United States State Supreme Court of Wisconsin |
Syllabus by the Court
Plaintiff in error, Lemuel Smith, Jr. (hereinafter referred to as defendant), pled guilty and was found guilty on two counts of armed robbery, contrary to secs. 943.32(1)(b) and 943.32(2), Stats. On July 29, 1963, the defendant was sentenced to a term of not more than eighteen years in the state prison on count one, and a consecutive term of fifteen years' probation on count two, with the condition that defendant stay out of the state of Wisconsin. On April 27, 1972, the defendant filed a motion for postconviction relief, pursuant to sec. 974.06, Stats., alleging (1) his plea of guilty and a possible admission were coerced; (2) that the 'banishment' provision in his sentence was illegal; (3) statements by the district attorney prejudiced his sentencing; and (4) that he was not told of his right to an attorney nor of his right to remain silent, that a lineup procedure was improper and that he was placed in double jeopardy. On receipt of the motion for postconviction relief, the court appointed the Public Defender Project of Milwaukee county to represent the defendant. On May 11, 1972, Attorney Michael Guolee of the defender project staff requested a three-week adjournment in which to file a memorandum in the case, which request was granted. On June 1, 1972, Attorney Lawrence Cofar, member of the defender project staff, appeared in court representing the defendant and stated:
'MR. COFAR: This is a 974.06 motion for cases F--7753 and F--7754 in which Mr. Smith was charged in each case with armed robbery.
'The Court appointed out office as amicus curiae to aid the Court pursuant to the Peterson case to make a determination as to whether or not the motion presented by Mr. Smith had any arguable merit.
'In that capacity I have filed with the Court a legal memorandum of the law pertaining to the contentions of the petitioner, those contentions which have a basis in law and I can inform the Court that we have determined that none of the contentions raised by the petitioner have any merit whatsoever--any arguable merit whatsoever and the contentions which do not raise a legal question but rather a factual question, are in no way supported by the record in this case.
'We have, therefore, determined that this motion is totally without any merit whatsoever.'
The trial court then stated that from reading the transcript of the record and the memorandum brief and hearing the statement of the defender project attorney it concluded that defendant's motion was without merit, except that it modified the sentence, substituting a request to the division of parole and probation that the defendant be placed on probation in his home city of Chicago, Illinois, in place of the provision that defendant while on probation stay out of Wisconsin.
Howard B. Eisenberg, State Public Defender, for plaintiff in error.
Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.
We will review step-by-step the procedure followed by the trial court in dealing with defendant's motion for postconviction relief. By so doing we will encounter the challenges to such procedure at the stage of the proceedings to which they are directed.
FILING OF PETITION. When defendant's motion for postconviction relief was filed, the trial court faced the threshold inquiry as to whether the motion and the files and records of the action 'conclusively show that the prisoner is entitled to no relief.' The words are from the statute, 1 which specifically provides that entitlement to appointment of counsel, notice to the district attorney and holding of an evidentiary hearing are to follow a finding that the motion and records do not conclusively show such absence of merit. Defendant argues that both appointment of counsel and an evidentiary hearing are required unless the motion is on its face 'patently absurd.' That is not the test. The rule in this state is as follows:
'. . . if the defendant fails to allege sufficient facts in his motion to raise a question of fact, or presents only conclusionary allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing. . . .' 2
APPOINTMENT OF AMICUS CURIAE. It follows that it is '. . . incumbent upon the trial court to form its independent judgment after a review of the record and pleadings and to support its decision by written opinion.' 3 To assist in arriving at such independent judgment, the trial court may, as it did here, appoint an attorney as amicus curiae to study the record and to report to the court whether the motion and the record do or do not conclusively show that the petitioner is entitled to no relief. 4 That is what the trial court here did. Defendant's contention that the trial court actually appointed legal counsel as an adversary counsel rather than as amicus curiae is not supported by this record. The memorandum brief and oral statement of appointed counsel make clear that the appointment was '. . . as amicus curiae to aid the Court pursuant to the Peterson case to make a determination as to whether or not the motion presented by Mr. Smith had any arguable merit.' (See statement of facts above.) Exactly such appointment for such purpose was authorized in Peterson in these words:
'. . . Thus, if the trial court, as here, desires to appoint counsel to study the record, it is proper as long as the final decision as to the merits of the motion is determined by the court after an independent review of the record, and not by the court-appointed attorney. . . .' 5
INDEPENDENT JUDICIAL INQUIRY. While the trial court may appoint an attorney as amicus curiae to report on the arguable merit of the defendant's motion, the Peterson Case makes clear the court itself must make 'the ultimate decision on the record with sufficient particularity,' following its having made 'an independent review of the record.' 6 The trial court 'may in the exercise of its legal discretion deny the motion without a hearing' 7 or may order an evidentiary hearing to 'determine the issues and make findings of fact and conclusions of law.' 8 Either order is an order of the court, not to be a mere rubber-stamping or acquiescence in the amicus curiae attorney's recommendation. In the case before us, it is clear that it was the trial court that made the ultimate decision. Not only did the trial court state that the order denying a hearing was made from reading the transcript of the record, but the modification of the probation condition in the sentence shows both an independent inquiry and an independent court ruling on the matters presented by the motion.
DENIAL OF MOTION. In the exercise of its judicial discretion the trial court denied, except in one particular, defedant's motion without holding an evidentiary hearing. Actually, as to the challenge to a banishment-type condition of probation in the sentence, the trial court granted the relief requested, substituting a request that the parole and probation division of the department of corrections consider placing the defendant on probation in his home city of Chicago, Illinois, for a court-mandated condition of probation that the defendant stay out of the state of Wisconsin. As to the allegations of double jeopardy, an improper lineup and defendant's not being told of his right to remain silent and to have an attorney, these were voluntarily waived by the guilty plea. This court has 'consistently held that claims of constitutional violations, if nonjurisdictional, may be waived by a plea of guilty intelligently and voluntarily entered.' 9 Defendant's motion included an allegation that his plea of guilty and certain admissions made by him were coerced. It is elementary that a coerced plea is open to collateral or subsequent attack. 10 What is coerced lacks the voluntariness essential to the validity of a plea. So, as to the allegation of coercion, the question must be, in the words of the Nelson Case, whether the defendant here failed 'to allege sufficient facts in his motion to raise a question of fact,' or presented 'only conclusionary allegations,' or whether the record 'conclusively demonstrates that the defendant is not entitled to relief.' 11 Where no more is present than the bare-bones allegation that the plea was coerced, that is no more than a 'conclusionary allegation' and, under Nelson, not sufficient to require the trial court to direct that an evidentiary hearing be conducted. Defendant submits that flesh is put on the bones here because the motion and record refer to a statement made by a codefendant. At the trial codefendant Richard Lucas testified concerning defendant's false statement that the guns involved in the armed holdup did not belong to defendant. Of such false statement as to gun ownership, Lucas said, '. . . At the time this statement was made by Mr. Smith, I think he was under a great deal of pressure, because he even said that the guns belonged to me, and he cleared that statement up with you, I think, last week, and he told you that the guns belonged to him. . . .' That a codefendant 'thinks' that the defendant was 'under a great deal of pressure' when he lied about the ownership of certain guns falls far short of even suggesting that a plea of guilty was a product of coercion. Some fact and feeling of being under pressure accompanies every arrest on a serious criminal charge where the prospect of an extended prison term alone is far from relaxing. This single statement by a codefendant, explaining a denial of gun ownership falsely made by the defendant, fails to allege sufficient facts which, if true, would...
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...without conducting an evidentiary hearing. Id. at 497–98, 195 N.W.2d 629. ¶ 46 The Nelson decision was followed in Smith v. State, 60 Wis.2d 373, 378, 210 N.W.2d 678 (1973); Levesque v. State, 63 Wis.2d 412, 418–21, 217 N.W.2d 317 (1974); and State v. Washington, 176 Wis.2d 205, 215–16, 500......
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State v. Kelty, 2006 WI 101 (Wis. 7/12/2006)
... ... Prior to Morris , this court had held that a guilty plea waived a double jeopardy challenge, except where the double jeopardy violation was evident from the record. See Smith v. State , 60 Wis. 2d 373, 379-80, 210 N.W.2d 678 (1973); Nelson v. State , 53 Wis. 2d 769, 773-75, 193 N.W.2d 704 (1972); Belter v. State , 178 Wis. 57, 63, 189 N.W. 270 (1922) ("The fact that he interposed no plea as to former jeopardy when brought before the upper branch of such court ... ...
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State v. Kelty
...waived a double jeopardy challenge, except where the double jeopardy violation was evident from the record. See Smith v. State, 60 Wis.2d 373, 379-80, 210 N.W.2d 678 (1973); Nelson v. State, 53 Wis.2d 769, 773-75, 193 N.W.2d 704 (1972); Belter v. State, 178 Wis. 57, 63, 189 N.W. 270 (1922) ......
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