State ex rel. Wenzlaff v. Burke

• Decision Date: 13 May 1947
• Citation: 250 Wis. 525,27 N.W.2d 475
• Parties: STATE ex rel. WENZLAFF v. BURKE.
• Court: Wisconsin Supreme Court

250 Wis. 525

27 N.W.2d 475

STATE ex rel. WENZLAFF

v.BURKE.

Supreme Court of Wisconsin.

May 13, 1947.

Original action. Habeas corpus. Writ denied.

On March 28, 1947, Walter Wenzlaff filed a petition in this court requesting an order be issued requiring John C. Burke, warden of the Wisconsin state prison, to show cause why a writ of habeas corpus should not issue. Upon this petition Mr. Chief Justice Rosenberry signed an order requiring the warden of the state prison to show cause at a set time why the writ should not be granted, and directing that the order be timely served on the warden and attorney general. A return was served by the warden of the prison, to which petitioner interposed a demurrer. On this record the matter was argued. The controlling facts are stated in the opinion.

Hooker & Wagner, of Waupun, for petitioner.

John E. Martin, Atty. Gen., and Wm. A. Platz, Asst. Atty. Gen., for respondent.

BARLOW, Justice.

Petitioner, Walter Wenzlaff, alleges that his imprisonment in the state prison at Waupun is unlawful for the reason that at the time of his arraignment and plea of guilty he was without funds to employ counsel and the court failed to advise him of his right to have counsel and to appoint counsel for him, and he was therefore denied due process of law.

In his petition Wenzlaff alleges that he was committed to and is detained in the Wisconsin state prison by virtue of a judgment of the county court, circuit court branch of the county of Shawano and state of Wisconsin, having been sentenced by said court on August 31, 1939, for an indeterminate term of not less than one year nor more than 25 years on charges of assault upon a female with intent to commit the crime of rape, contrary to sec. 340.48, Stats., and having been previously convicted of an offense punishable only by imprisonment in the state prison, in violation of sec. 359.12, Stats.; that at the time he was arrested he waived preliminary examination, was bound over to the circuit court branch of the county court of Shawano county and was arraigned in the county court, all of which took place on the day of his arrest; that he entered a plea of guilty to being in a tavern but did not enter a plea of guilty to the charges of assault on a female with intent to commit the crime of rape or being a repeater as contained in the information; that he was without funds with which to employ an attorney and was not advised by the presiding judge that he was entitled to the services of an attorney, nor was an attorney provided for him; that he has a meager education and did not complete more than the fourth grade in country school and did not understand the proceeding in court; that he was denied the right to confer with persons other than inmates of the place where he was confined, and that he now learns an information charging him with being a repeater under the repeater statute was also filed against him. Copies of the court proceedings are made a part of the petition.

The petition furnished the information required in State ex rel. Doxtater v. Murphy, 1946, 248 Wis. 593, 22 N.W.2d 685, and cases therein cited, and complies with the provisions of sec. 292.04, Stats. Unless petitioner intelligently waived his right to counsel he was denied due process of law, see State ex rel. Drankovich v. Murphy, 1946, 248 Wis. 433, on pages 438, 439, 22 N.W.2d 540 and cases cited, but the burden of proof rests upon the petitioner to establish by a preponderance of the evidence that he did not intelligently waive the right to assistance of counsel. Johnson v. Zerbst, 1937, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357,Pinfold v. Hunter, 10 Cir., 1944, 140 F.2d 564, 39 C.J.S., Habeas Corpus, § 100, pp. 668-672.

The return and answer to the petition made by the warden of the prison places in issue the following: (1) Whether petitioner was without funds to employ an attorney at the time he appeared in court; (2) whether the presiding judge advised petitioner that he was entitled to the services of an attorney; (3) the meager education of petitioner and the time spent in school; (4) that petitioner did not understand the proceedings in court. Denial is made that petitioner pleaded guilty to no offense except that of being in a tavern, and it is alleged that the plea of guilty was made to the information as filed. This raises an issue of fact which should be referred to a referee unless the following allegations in the answer, which are admitted by demurrer, establish proof that the petitioner knew he was entitled to the benefit of counsel to be appointed by the court and did not request it, thereby intelligently waiving counsel.

Answering, defendant alleges (a) that on March 31, 1914, petitioner was charged with breaking and entering a dwelling house in the daytime with intent to steal, which matter was adjourned to April 2, 1914, and petitioner was released on his own recognizance, and on April 2, 1914, petitioner appeared in court represented by an attorney. The matter was adjourned by consent to June 2, 1914. The court placed petitioner in the custody of his attorney.

(b) That on July 25, 1921, petitioner was arrested, charged with feloniously making an assault on a female person with intent to commit the crime of rape, which matter was adjourned, bail set and petitioner committed to the county jail in default of furnishing it; that on the adjourned day he appeared in court represented by an attorney, at which time a preliminary examination was held and witnesses examined and petitioner bound over for trial in the upper branch of the municipal court for Outagamie county. Bail was set and petitioner committed to county jail in default thereof, and that thereafter, on proof of indigency, the court entered an order appointing an attorney to representthe petitioner. Thereafter petitioner, through his attorney, pleaded guilty, and on August 19, 1921, was sentenced to the Wisconsin state reformatory for a term of seven years. He was pardoned March 9, 1923.

(c) That on July 18, 1923, petitioner was again arrested, charged with assault on a female person with intent to commit the crime of rape. He employed and was represented by an attorney in court. A preliminary examination was held, petitioner bound over for trial in the upper branch of the municipal court for Outagamie county. Being unable to furnish bail he was committed to the county jail. He later pleaded guilty to the charge of assault and battery, through his attorney, and was placed on probation to his attorney for six months.

(d) That on April 10, 1928, he was arrested on a charge of assault on a female person with intent to commit rape, and on the same day a second warrant was issued for his arrest for assault with intent to commit rape upon another female person. Petitioner employed and appeared with an attorney. Preliminary examination was held, witnesses sworn, and examined, and petitioner bound over for trial in the upper branch of the municipal court for Outagamie county, bail set and petitioner was committed to the county jail in default thereof in each case. The court ordered an examination into the mental condition of petitioner, and the physicians appointed reported they found him criminally insane. He was committed to the Central State Hospital on April 23, 1928, and on July 2, 1934, the superintendent of the hospital reported that petitioner had recovered from his psychosis. July 26, 1934, the municipal court...