State v. Braun

• Decision Date: 02 February 1981
• Docket Number: No. 78-082-CR,78-082-CR
• Court: Wisconsin Supreme Court
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. William D. BRAUN, Defendant-Respondent, Jeanette Dulde, in her own person and as a personal representative for the estate of Arthur Dulde, Appellant-Petitioner.

Page 180

301 N.W.2d 180

100 Wis.2d 77

STATE of Wisconsin, Plaintiff-Respondent, v. William D. BRAUN, Defendant-Respondent,

Jeanette Dulde, in her own person and as a personal

representative for the estate of Arthur Dulde,

Appellant-Petitioner.

No. 78-082-CR.

Supreme Court of Wisconsin.

Argued Nov. 26, 1980.

Decided Feb. 2, 1981.

Gerald P. Boyle, S. C., and Roland J. Steinle, III, Milwaukee, and oral argument by Gerald P. Boyle, Milwaukee, for the appellant-petitioner.

David J. Becker, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for the plaintiff-respondent.

BEILFUSS, Chief Justice.

This is a review of a decision of the court of appeals which affirmed the judgment of the circuit court for Milwaukee county: MAX RASKIN, Circuit Judge.

On June 28, 1978, an order was entered by the circuit court requiring the forfeiture of $75,000 posted as bond in connection with the criminal prosecution of William D. Braun. This review concerns the validity of that order.

In August of 1975, William D. Braun was charged as a party to the crime of first-degree murder in violation of secs. 940.01 and 939.05, Stats. This charge arose out of an incident involving Braun, his wife, and a third party. Braun's wife, Kathleen Schaffer, was convicted of first-degree murder in a separate proceeding prior to the completion of the judicial proceedings against her husband.

The defendant Braun's bail was set at $200,000 with sureties on August 27, 1975. Bail was thereafter reset at $75,000. On September 9 the defendant, and his father-in-law Arthur Dulde, acting as surety, executed an appearance bond in that amount. Pursuant to authority granted to it by virtue of sec. 969.12(3), Stats., the court required the deposit of assets valued at $75,000 with an escrow agent pending the fulfillment of the conditions of the bond. Arthur Dulde and his wife, Jeanette Dulde, in a joint or individual capacity, owned all of the assets transferred to the escrow agent. A hearing was held on the day the bond was executed and Arthur Dulde testified that he understood that he had signed away assets as security for the appearance of his son-in-law and that this was done knowingly and freely. He further indicated that the assets were being signed over with the consent of his wife.

After a plea bargain conference the State, on October 10, 1977, filed amended charges alleging the commission of manslaughter and possession of cocaine with intent to deliver in violation of secs. 940.05(1) and 161.41(1m), Stats. The defendant Braun pleaded guilty to both of these charges. The matter was continued for the purpose of conducting a presentence investigation.

On December 15, 1977, the defendant Braun appeared and was sentenced to an indeterminate term not to exceed ten years on the manslaughter conviction, and to an indeterminate term of not more than one year for conviction of the drug charge. The terms were ordered to be served consecutively. The court stayed the execution of the one-year term and placed the defendant on two years' probation to be served consecutively to the ten-year jail term.

At the close of the sentencing hearing, upon motion of defense counsel, the court temporarily stayed the execution of the sentence and ordered the defendant William Braun to report to the proper authorities on January 3, 1978 to commence his criminal sentence. William Braun never complied with that order.

As reflected in the brief of the petitioner-surety, Braun stole a check belonging to his mother-in-law. He made the check out in the amount of $3,000, forged his mother-in-law's signature and cashed the item. Law enforcement authorities believe that Braun used this money to help his wife escape from the Wisconsin Correctional Institution at Taycheedah where she was serving the term imposed upon her first-degree murder conviction. It also appears that the couple thereafter fled the country. At the time of oral argument Braun was still at large.

Between 1975 and the December 15, 1977 sentencing hearing, Arthur Dulde died. Mrs. Dulde as personal representative for the Estate of Arthur Dulde, assumed responsibility as surety for the $75,000 bond. The parties agree Mrs. Dulde was present during the sentencing but neither requested nor objected to the stay of execution. On December 27, 1977, believing that her position as surety was insecure and having retained counsel, Mrs. Dulde (surety) appeared before the circuit court requesting to be relieved of her bond responsibility or requesting in the alternative further clarification of her bond responsibility. The motion was denied.

During the ensuing months the State and the surety filed several motions. The State moved for an order of forfeiture, and the surety filed motions requesting total or partial relief from the payment of bond. After hearing the arguments of counsel on May 1, the trial court ruled that a bondsman's responsibility continued until the convicted defendant surrenders or is surrendered to the custody of the State for incarceration. Accordingly, as noted above, the court ordered that the $75,000 bond be forfeited.

The surety appealed from this adverse determination. The court of appeals affirmed the trial court's forfeiture order. The opinion of the court of appeals is reported as State v. Braun, 92 Wis.2d 734, 285 N.W.2d 886 (Ct.App.1979). Subsequently, we granted the surety's petition for review.

The issue ¹ presented for our determination on this review is whether a surety may be held liable for the amount of an appearance bond when the defendant absconds after sentencing and after the execution of his sentence has been temporarily stayed by the trial court upon the request of the defendant.

The essence of the State's argument is that a trial court may order a bond to continue after sentencing until the defendant surrenders to commence his/her sentence, provided that the terms of the bond evince the surety's intent to assume such a responsibility. In support of this position the State relies on a series of federal cases. ² We are urged to conclude that the bond agreement in this case evinces a clear intent to fix the risk of nonappearance of the defendant on the surety until the defendant surrenders to commence his sentence. It is pointed out that the bond provides that the defendant "shall appear ... at such ... times and places as he may be required to appear, and will submit himself to any and all orders and directions (of) ... any Court or Judge having jurisdiction...." The bond also required the defendant to surrender himself to serve any sentence imposed on him and to comply with any order or direction issued by the court in connection with the sentence. The State asks that, as with other contracts, we enforce the intent of the parties as expressed by the plain meaning of the terms of the bond.

It must be acknowledged that the surety's obligation on a bail bond as on any other surety contract is governed by a reasonable interpretation of the surety's promise. Restatement, Security, p. 549, sec. 203, Comment (c). Bail bond agreements, however, are not made in a vacuum and must be read and interpreted in light of applicable bail statutes. Id. In Wisconsin, ch. 969, Stats., governs the administration of bail in criminal proceedings.

Sec. 969.09(1), Stats., concerns the conditions which must be included within a bond where a defendant is admitted to bail prior to sentencing. That statute provides:

"If a defendant is admitted to bail before sentencing the conditions of the bond shall include, without limitation, the requirements that he will appear in the court having jurisdiction on a day certain and thereafter as ordered until discharged on final order of the court and that he will submit himself to the orders and process of the court."

It is clear from the statute that the discharge "on final order of the court" is the end point in time beyond which the surety is not liable. Before addressing the question of whether or not a bond by its terms can extend the obligation of the surety beyond the issuance of this final order, it is necessary to determine which order is the "final order" of the court within the meaning of sec. 969.09(1).

We conclude that the final order referred to in sec. 969.09(1), Stats., is the sentencing itself and is not an order staying the execution of sentence. The simple reason for this is that, upon sentencing, the essence of the judicial process is complete and there is nothing remaining for the court to do but to immediately turn over the defendant to the executive authority for incarceration. The trial court is not empowered to stay the execution of a criminal sentence except for legal cause or except as provided by statute.

In discussing the court's authority to stay the execution of a sentence "until further order of the court," it was written in In re Webb, 89 Wis. 354, 356, 62 N.W. 177 (1895) that:

"After the defendant had been convicted and the sentence of the law in legal and proper form had been pronounced against him, it is difficult to understand upon what principle the court could further interfere in the premises. The right of the court, for cause, within the exercise of a reasonable discretion, to postpone sentence or suspend sentence, as it is said, seems to be clear; but we think, both upon principle and authority, its right to suspend the execution of the sentence after it has been pronounced cannot be sustained, except as incident to a review of the case upon a writ of error, or upon other well-established legal grounds. After sentence given, the matter within these limits would seem to be wholly within the hands of the executive officers of the law. The sole power is vested in the governor 'to grant reprieves, commutations, and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper.' ...