Spinella v. State
| Decision Date | 31 October 1978 |
| Docket Number | No. 76-432-CR,76-432-CR |
| Citation | 271 N.W.2d 91,85 Wis.2d 494 |
| Parties | James A. SPINELLA, Plaintiff in error, v. STATE of Wisconsin, Defendant in error. |
| Court | Wisconsin Supreme Court |
James A. Spinella, plaintiff in error, was charged with operating a vehicle without the owner's consent, contrary to sec. 943.23, Stats. He was convicted on his plea of guilty and sentenced to an indeterminate term of imprisonment of not more than three years.
A writ of error issued to review the order denying his motion for postconviction relief requesting withdrawal of his guilty plea.
John I. Norsetter, Legal Assistance to Inmates Program, Madison, submitted brief, for plaintiff in error.
Bronson C. La Follette, Atty. Gen., and Pamela Magee-Heilprin, Asst. Atty. Gen., submitted brief, for defendant in error.
Spinella was arrested on February 6, 1974. The police report received and filed at the time he entered his plea of guilty states that at the time of his arrest he was driving a car with a license plate on it not registered to the car. The car had been stolen four months previously in Milwaukee. The ignition lock had been removed and the car had to be "hot-wired" with a screw driver to start it. He plead guilty on June 17, 1974. Between the time of his arrest and the entry of his plea of guilty he made eleven court appearances. The first lawyer to represent him was permitted to withdraw because of conflicts with his client. He then requested the court to appoint counsel for him. This request was refused. Spinella then engaged another lawyer.
He requested a jury trial. The case was set for trial several times and when each trial date arrived the trial court granted an adjournment.
Spinella also had pending two charges alleging violation of sec. 161.41(3), Stats. These were disposed of in a separate action. On June 17, 1974, the trial court was informed that as a result of plea negotiations Spinella wished to withdraw his not guilty plea, waive his right to a trial by jury and enter a plea of guilty to the charge of operating a vehicle without the owner's consent.
The trial court was further informed that the state would recommend a sentence of three years on the instant charge and six months on each of the other two charges, with sentences to run concurrently. Both defendant and his counsel confirmed their understanding of this agreement. When the trial court ultimately imposed the sentence, it was in accordance with the terms of the negotiated plea. The defendant received the sentence he had bargained for.
The only judgment of conviction before us on this review is that relating to the charge of operating a motor vehicle without the owner's consent. Spinella argues: (1) The trial court failed to satisfy itself that a factual basis for the plea existed; (2) the record fails to show that he understood the nature of the crime with which he was charged; and (3) that he was not informed that by pleading guilty he waived his privilege against self-incrimination and the right to confront witnesses against him.
In Ernst v. State, 43 Wis.2d 661, 170 N.W.2d 713 (1969), this court mandated standards for the acceptance of a guilty plea. Under Ernst a trial court is required to establish the following on the record:
1. The extent of the defendant's education and general comprehension;
2. the defendant's understanding of the nature of the crime with which he is charged and the range of punishments it carries;
3. whether he has been made any promises or threats in connection with his appearance, plea of guilty, or refusal of counsel;
4. that the defendant has been advised that a lawyer might discover defenses or mitigating circumstances that he, as a layman, might not be aware of;
5. that the defendant understands that counsel will be appointed for him if he is a pauper; and
6. that the conduct which the defendant admits constitutes the offense charged.
Ernst, supra, at 674, 170 N.W.2d 713.
Sec. 971.08(1), Stats., codifies these standards to some extent:
Withdrawal of a guilty plea after sentencing will be permitted only where it is necessary to correct a manifest injustice. State v. Reppin, 35 Wis.2d 377, 386, 151 N.W.2d 9 (1967). In adopting the manifest injustice test the court also recognized four factual situations set forth in the tentative standards of the ABA as representing instances of manifest injustice. The third of these situations reads:
" . . . The plea was involuntary, or was entered without knowledge of the charge or that the sentence actually imposed could be imposed; . . . " Reppin, supra, at 385, fn. 2, 151 N.W.2d at 14 fn. 2.
On a motion to withdraw a guilty plea the defendant has the burden of showing manifest injustice by clear and convincing evidence. Hatcher v. State, 83 Wis.2d 559, 564, 266 N.W.2d 320 (1978). Permitting withdrawal of a guilty plea is within the trial court's discretion so the test on review is whether the trial court abused its discretion in denying the motion. Id. at 564, 266 N.W.2d 320. However, the violation of a relevant constitutional right which causes the defendant to plead guilty and because of which the defendant is unaware of the potential constitutional challenges to the case against him is a manifest injustice in itself which gives a defendant the right to withdraw his guilty plea. Id. at 565, 266 N.W.2d 320.
Spinella challenges the factual basis established for his plea. The police report was offered and received by the trial court. It is a part of the record. The defendant suggests it was not read by the trial court. This is a conclusion unsupported by the record. The crime here alleged is not complicated. The police report is a relatively short two-page handwritten document. It was offered, received and is a part of the record. There is nothing in the record which would indicate it was not considered by the trial court. 1 The purpose of ascertaining a factual basis for a plea is to make certain that the defendant is pleading guilty to a crime he committed. Peterson v. State, 54 Wis.2d 370, 385, 195 N.W.2d 837 (1972). We are of the opinion there is sufficient factual basis in the record to convince the trial court that Spinella was pleading guilty to a crime he committed.
This court has held that where, as here, the guilty plea is the result of plea negotiations, the trial court need not go to the same length to determine whether the facts would sustain the charge as it would where there is no negotiated plea. Broadie v. State, 68 Wis.2d 420, 423, 424, 228 N.W.2d 687 (1975); Wilson v. State, 57 Wis.2d 508, 513, 204 N.W.2d 508 (1973).
In Edwards v. State, 46 Wis.2d 249, 174 N.W.2d 269 (1970), this court said that for a sec. 943.23, Stats., violation, the state must prove that the defendant knew he was driving the vehicle without consent, but that circumstantial evidence could be used. The court said the evidence would be insufficient to support a conviction if the state could only prove the defendant was driving a stolen car while the defendant contended it was his uncle's.
Unlike Edwards, Spinella has not contended that he had the consent of anyone. Further, in a negotiated plea acceptance, unlike a trial, the factual basis need not be established beyond a reasonable doubt.
The trial court did not abuse its discretion in denying the motion for withdrawal of the guilty plea on the grounds that there was no factual basis to find that Spinella committed the crime for which he was charged.
Spinella also argues that the record does not disclose that he had sufficient understanding of the nature of the crime to which he plead guilty. He does not argue that he did not understand the nature of the charge when he entered his plea. 2
In Reppin, supra, this court held that manifest injustice existed where the defendant could prove by clear and convincing evidence that the plea was involuntary or entered without knowledge of the charge. The second of the Ernst standards requires the court " . . . (t)o establish (on the record) the accused's understanding of the nature of the crime . . . ." Ernst, supra, 43 Wis.2d at 674, 170 N.W.2d at 719. This requirement has been codified in sec. 971.08(1)(a), Stats.:
The defendant's understanding of the charge is part of the voluntariness requirement. Hatcher, supra, 83 Wis.2d at 563, 266 N.W.2d 320. The Supreme Court explained the need for a voluntariness determination on the record in McCarthy v. United States, 394 U.S. 459 (1969), at 466-471, 89 S.Ct. 1166, at 1171-73, 22 L.Ed.2d 418, at 425-428:
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