State ex rel. White v. Gray

• Decision Date: 30 January 1973
• Docket Number: No. 140,140
• Citation: 57 Wis.2d 17,203 N.W.2d 638
• Parties: STATE ex rel. Raymond WHITE, Petitioner, v. R. L. GRAY, Warden, Respondent.
• Court: Wisconsin Supreme Court

Page 638

203 N.W.2d 638

57 Wis.2d 17

STATE ex rel. Raymond WHITE, Petitioner, v. R. L. GRAY, Warden, Respondent.

No. 140.

Supreme Court of Wisconsin.

Jan. 30, 1973.

Howard B. Eisenberg, State Public Defender, Ronald L. Brandt, Asst. State Public Defender, Madison, for petitioner.

Robert W. Warren, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, for respondent.

WILKIE, Justice.

We are confronted here with three issues concerning petitioner's efforts to withdraw his guilty plea:

1. Was the guilty plea entered voluntarily in the face of the fact that there had been a plea bargain in which one brother, Raymond, agreed to plead guilty while the state agreed to dismiss the burglary charges against the younger brother, Joseph?

2. Is such a plea bargain against public policy?

3. Was Raymond White denied the effective assistance of trial counsel guaranteed by the Sixth amendment?

Plea bargaining is an accepted and necessary part of the process whereby a good many criminal prosecutions are terminated as a result of a guilty plea. ¹ The fears, arising from earlier United States Supreme Court cases wherein it was suggested that pleas which were exchanged for promises were not voluntary, ² are no longer founded.

The plea bargaining process must be opened to judicial scrutiny. It is essential that a record of the nature of the bargain should be made. This will assist appellate review when a convicted defendant has unsuccessfully attempted to withdraw a guilty plea as made because an alleged plea bargain was not kept. In examining the record here, both at the time the guilty plea was taken and at the hearing to withdraw that plea, this court is considerably handicapped by the fact that no record was made at the time of the plea as to the actual plea bargain, if any, which was agreed upon. Although the petitioner, when asked by the trial court at the time of his plea of guilty, answered 'No' to the court's question 'Has anyone made any promise to you, Mr. White?' it is clear from the August 2, 1971, hearing that, prior to the guilty plea, there may have been a plea bargain entered into between the prosecution and Raymond White. The nature of that plea bargain is now before us. We are satisfied that the fair, just, and effective administration of criminal justice will be advanced by thoroughly identifying, at the plea taking, any plea bargains which may have been entered into prior to the procedure at which the guilty plea is taken. The matter of making a record of a plea bargain was considered by this court in Austin v. State, ³ wherein we stated that a bargain 'should always be made a matter of record' when such bargain contemplates the nonprosecution of uncharged offenses. Noting that such a procedure accords with the American Bar Association Standards Relating to Pleas of Guilty, the court further stated:

'. . . A plea agreement should always be made a matter of record whether it involves a recommendation of sentencing, a reduced charge, a nolle prosequi of charges or read ins with an agreement of immunity.' ⁴

While Austin was announced on February 5, 1971, we note that at the time of the guilty plea hearing, March 24, 1971, Austin had just barely been published in the advance sheets.

Scholars have long been dissatisfied with the too often hiding of the plea bargain process. The situation is aptly described by Newman:

'. . . In a general way trial court judges are aware that prosecutors commonly promise to 'recommend' probation or some other sentence leniency if the defendant pleads guilty, but the court has no way of knowing, in any specific instance, what the defendant has been led to expect in the way of a sentence unless this question is put directly to him or to the prosecuting attorney. In no observed instances did the general question of whether anyone threatened or promised anything to the defendant elicit a response that revealed a sentence promise by a prosecutor. Judge ask the question as a matter of routine and almost invariably receive the monosyllabic negative reply. The only way an improper or unhonored plea inducement comes to the attention of the court is if the defendant complains at the time of sentencing or appeals his conviction because the bargain was not kept.' ⁵

The American Bar Association Standards Relating to Pleas of Guilty to recommend an in-court inquiry by the trial court in order to 'give visibility to the plea discussions--plea agreement process.' ⁶ In addition, both Pennsylvania and California have judicially mandated their trial courts to ascertain the nature of any prior plea negotiations. ⁷ The general reasons given for such a rule are that such on-the-record acknowledgments of a bargain serve both to protect the defendant in the event that a prosecutor reneges from his part of the bargain and to protect the state against later false claims of unkept bargains.

As part of the procedure followed in determining the voluntariness of a guilty plea, the standards specified in sec. 1.5 of the ABA Standards Relating to Pleas of Guilty must be observed with respect to ascertaining whether a plea agreement has been reached prior to the plea discussion and the terms of the agreement that has been reached. Section 1.5 provides as follows:

'The court should not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. By inquiry of the prosecuting attorney and defense counsel, the court should determine whether the tendered plea is the result of prior plea discussions and a plea agreement, and, if it is, what agreement has been reached. If the prosecuting attorney has agreed to seek charge or sentence concessions which must be approved by the court, the court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court. The court should then address the defendant personally and determine whether any other promises or any force or threats were used to obtain the plea.' ⁸

Here, there was no record made at the time of the guilty plea of the bargain, if any, that had been entered into. We accordingly must refer this petition for limited fact finding on the assertions made in the petition herein under paragraphs 5(b) (involuntariness), and 5(c) (ineffective counsel), and the answers thereto. After the petitioner Raymond White and his brother, Joseph White, testified at the hearing on Raymond's motion to withdraw his plea, and explained the nature of the plea bargain as they understood it, the trial court found the testimony 'incredible.' It is difficult to glean from the record of this proceeding precisely what the trial court found 'incredible.' It is possible that the 'incredible' reference was to the testimony concerning the bargain which the White brothers testified had occurred. It is also conceivable that the 'incredible' reference applied to Raymond White's position that the plea, by virtue of the bargain, was not voluntarily entered.

Assuming the guilty plea was made pursuant to the alleged plea bargain, petitioner contends that the plea was not knowingly and voluntarily entered. ⁹ In determining whether a plea has been entered voluntarily there are undoubtedly factors which may affect the freedom and volition with which a plea is given. These factors may be inherent in the nature of the plea or arise from circumstances outside the plea itself. These latter circumstances were recently noted by this court:

'There may be some instances where, literally, an appearance is the result of threat, coercion or fear, such as a threat of mob violence to the accused . . . or a prolonged stay in jail awaiting trial. In those and similar instances it is not the appearance in court that is constitutionally unfair, but the threat or coercion that induce a willingness to enter a plea of guilty 'to get it over with' that lacks necessary due process.' ¹⁰

This court has also acknowledged that inherent in certain pleas an element of coercion exists. In Rahhal v. State, ¹¹ this court noted:

'However, a plea otherwise valid is not involuntary because induced or motivated by the defendant's desire to get the lesser penalty. A voluntary and intelligent choice always involves two or more alternatives, each having some compelling power of acceptance. The fact that a defendant must make a choice between two reasonable alternatives and take the consequences is not coercive of the choice finally made. The distinction between a motivation which induces and a force which compels the human mind to act must always be kept in focus. When the defendant is not given a fair or reasonable alternative to choose from, the choice is legally coerced.' (Emphasis added.)

Petitioner argues that the bargain he was proffered contained the element of 'force which compels the human mind to act.' This court has not heretofore precisely considered the voluntariness of a guilty plea bottomed upon a bargain which contemplates the dropping of criminal charges against a sibling or loved one in exchange for the plea. In Drake v. State ¹² the defendant's subjective desire to plead guilty in order to avoid the implication of his wife in his jailbreak was deemed to be a self-imposed coercive element which did not weaken the voluntary and knowledgeable aspect of the plea. Although noting the potential danger to a confession's voluntariness where there was a police threat to prosecute a suspect's girlfriend on another charge if he did not confess to a charged crime, this court, in Phillips v. State, ¹³ did not, after viewing the 'totality of the circumstances,' feel the confession to be coerced. In yet another confession case, however, this court held that a threat to prosecute a suspect's wife, absent his confession, may have resulted in a coerced confession:

'. . . If the Milwaukee police did threaten to prosecute defendant's wife as an accessory after the fact such threat is of a nature which could be coercive in...