State v. Booth

• Decision Date: 17 November 1987
• Docket Number: No. 87-0959-CR,87-0959-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Kevin R. BOOTH, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 20

418 N.W.2d 20

142 Wis.2d 232

STATE of Wisconsin, Plaintiff-Respondent, v. Kevin R. BOOTH, Defendant-Appellant.

No. 87-0959-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 5, 1987.

Opinion Released Nov. 17, 1987.

Opinion Filed Nov. 17, 1987.

Roy La Barton Gay, Eau Claire, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and Christopher G. Wren, Asst. Atty. Gen., Wisconsin Dept. of Justice, Madison, for plaintiff-respondent.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

Kevin Booth appeals the denial of a motion requesting the withdrawal of his guilty plea. Booth entered the plea to a charge of burglary, sec. 943.10(1)(a), Stats. At the sentencing hearing, the trial court "withheld sentencing" and placed Booth on three years' probation with conditions. Despite repeated subsequent violations, Booth remained on probation until revocation proceedings were initiated nearly two years after his original conviction. Three weeks after the commencement of revocation proceedings, Booth filed the motion to withdraw his guilty plea to the burglary charge.

Booth argues on appeal that the trial court abused its discretion by denying his motion. Essentially, Booth contends that the imposition of probation does not constitute sentencing and, therefore, the pre-sentencing standard properly applies to the consideration of his motion to withdraw his plea. We conclude that the imposition of probation constitutes sentencing for purposes of determining which standard to apply to the consideration of a guilty plea withdrawal motion. We affirm.

To withdraw a guilty plea after sentencing, the defendant must show that a manifest injustice would result if the withdrawal were not permitted. State v. Reppin, 35 Wis.2d 377, 385-86, 151 N.W.2d 9, 13-14 (1967). In contrast, the request to withdraw a guilty plea prior to sentencing may be granted where the defendant presents a fair and just reason for doing so, unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea. State v. McKnight, 65 Wis.2d 582, 592, 223 N.W.2d 550, 555 (1974).

In distinguishing between pre-sentencing and post-sentencing motions to withdraw guilty pleas, our supreme court expressly adopted standard 14-2.1 of the American Bar Association Standards Relating to Pleas of Guilty, Project on Minimum Standards for Criminal Justice. ¹ Reppin, 35 Wis.2d at 385-86, 151 N.W.2d at 13-14. This standard followed the post-sentencing "manifest injustice" test applied under the existing Rule 32(d) of the Federal Rules of Criminal Procedure, which applied when a defendant sought to withdraw a plea after sentence was imposed or imposition of sentence was suspended.

Concurrent with the development of the guilty plea, the ABA project also developed standards regarding sentencing. Although the manifest injustice standard does not define the meaning of sentence, the sentencing standards specifically treat probation as a sentence As used in these standards, the term "probation" means a sentence not involving confinement which imposes conditions and retains authority in the sentencing court to modify the conditions of the sentence or to resentence the offender if its conditions are violated.

ABA, Sentencing Alternatives and Procedures, sec. 18-2.3(a), at 71 (2d ed. 1980). The current commentary on the standard emphasizes that point:

A principal purpose of paragraph (a) [of the standard] is to indicate that such dispositions, however denominated, should be considered "sentences" in themselves rather than only as a provisional holding category or a temporary substitute for "true" sentences of confinement. Probation and similar dispositions are, and should be viewed as, sentences just like any other disposition following conviction.

Id., sec. 18-2.3, at 80 (emphasis supplied). ²

We agree and adopt this logical, common sense treatment of probation as sentencing for purposes of the present case. Accordingly, we conclude that the withholding of sentence and the imposition of probation, as those terms are used by the courts, are functionally equivalent to sentencing for determining the appropriateness of plea withdrawal. Booth was therefore subject to the post-sentencing "manifest injustice" standard in the consideration of his motion to withdraw his guilty plea.

The burden of proof of manifest injustice is on the defendant, by clear and convincing evidence. Reppin, 35 Wis.2d at 385, 151 N.W.2d at 13. The withdrawal of a guilty plea is not a "right," but is addressed to the sound discretion of the trial court and will be reversed only for an abuse of that discretion. McKnight, 65 Wis.2d at 593, 223 N.W.2d at 556 (citing United States v. Webster, 468 F.2d 769, 771 (9th Cir.1972), cert. denied, 410 U.S. 934, 93 S.Ct. 1385, 35 L.Ed.2d 597 (1973). The trial court does not abuse its discretion when the defendant fails to carry his burden. See McKnight.

Far from demonstrating a manifest injustice, Booth testified at the withdrawal hearing that, "I didn't think that I got the deal I wanted through the thing because I am not guilty of the crime...." Booth's claim fails for several reasons. Significantly, disappointment in the eventual punishment imposed is no ground for withdrawal of a guilty plea. A defendant may not delay his motion until he has the opportunity to test the weight of potential punishment. Dudrey v. State, 74 Wis.2d 480, 485, 247 N.W.2d 105, 108 (1976).

Booth's inexpedient assertion of innocence is similarly not dispositive. Although in a presentence withdrawal motion an assertion of innocence may be an important factor, see id., we feel that normally the question of innocence need not be deeply pursued on a motion after sentencing. In the well-established case of Friedman v. United States, 200 F.2d 690, 696 (8th Cir.1952), cert. denied, 345 U.S. 926, 73 S.Ct. 784, 97 L.Ed. 1357 (1953),...