State v. Carlson

• Decision Date: 06 October 1970
• Docket Number: No. S,S
• Parties: STATE of Wisconsin, Respondent, v. Gerald CARLSON, Appellant. tate 9.
• Court: Wisconsin Supreme Court

Page 851

179 N.W.2d 851

48 Wis.2d 222

STATE of Wisconsin, Respondent, v. Gerald CARLSON, Appellant.

No. State 9.

Supreme Court of Wisconsin.

Oct. 6, 1970.

The defendant was convicted, on his plea of guilty, of nine counts of burglary, in violation of sec. 943.10(1)(a), Stats. Eight of the counts involved crimes committed in Milwaukee county, which, on application by the defendant pursuant to sec. 956.01(13), were consolidated with the Racine county burglary charge. Carlson was sentenced to the Wisconsin state reformatory for a term not to exceed five years on each count, the sentences to run concurrently.

The action was commenced by complaint and warrant issued July 23, 1968, charging defendant with the Racine county burglary on June 15, 1968. The defendant was arrested in Wisconsin Rapids on July 25, 1968, and returned to Racine county on July 27, 1968. On July 28, 1968, he was interviewed by a detective for the Racine county sheriff's department. He was informed of his constitutional rights, including his right to counsel and right to remain silent. He thereafter signed a waiver of his right to counsel, and also made a statement admitting his participation in the Racine county burglary.

On July 29, 1968, defendant appeared before a magistrate, and counsel was appointed. Defendant's application to have the eight counts of burglary from Milwaukee consolidated with the Racine burglary was then processed, and on November 6, 1968, the defendant waived preliminary hearing and pleaded guilty to the nine counts of burglary.

On November 21, 1969, defendant moved the trial court to withdraw his pleas of guilty on the ground that the pleas were caused by a violation of his constitutional rights. A hearing on the motion was conducted on December 24, 1969. Defendant there testified that while confined to the Wood county jail, his request to make a telephone call to an attorney living in Wautoma, Waushara county, who had represented him in the past, was denied. He also testified that upon his arrival at the Racine county jail he again asked to make a telephone call to contact an attorney and was denied permission to do so. Defendant further testified that, prior to being interrogated by a detective for the Racine county sheriff's office, he was informed of his right to counsel and right to remain silent, but that during the course of the interrogation he requested an attorney, and that rather than terminating the interrogation the detective proceeded to question him further and thus obtained the signed waiver of right to counsel and an incriminating statement. No one other than the defendant testified at the hearing. The trial court denied the defendant's motion to withdraw his guilty plea. Defendant appeals from the order of the trial court denying his motion.

Adrian P. Schoone, Racine, for appellant.

Robert W. Warren, Atty. Gen., Betty R. Brown, Asst. Atty. Gen., Madison, Gerald E. Clickner, Racine Co. Dist. Atty., Racine, for respondent.

CONNOR T. HANSEN, Justice.

Two issues are raised on appeal: (1) The State contends the trial court lacked jurisdiction to consider defendant's motion for withdrawal of pleas because it was not served and filed within one year from the finding of guilty; and (2) the defendant contends the trial court erred in denying defendant's motion to withdraw his pleas of guilty.

LACK OF JURISDICTION.

The trial court made a finding of guilty on November 6, 1968, by accepting the defendant's guilty plea. Defendant filed a pro se motion with this court on October 31, 1969, within the one year time period, and a writ of error was issued on the same date. However, counsel for the defendant was not appointed until November 11, 1969, after the one year time limit had run. Subsequently, that attorney was relieved of his appointment, and the attorney presently representing defendant was appointed on November 14, 1969. On November 21, 1969, seven days after his appointment, counsel for the defendant orally moved the court to withdraw the pleas of guilty in open court with actual notice to the district attorney's office. At that time the trial court noted the motion was timely. On December 15, 1969, the motion was served and filed.

These facts are nearly identical to those in Meunier v. State (1970), 46 Wis.2d 271, 174 N.W.2d 277, where the defendant made a pro se motion within the one year time limit and his counsel, appointed after the year had run, perfected the motion shortly after his appointment. This court held that the defendant should not be deprived of having his case reviewed on the merits, where he had made his complaint known within the one year period, but due to administrative procedures, his counsel was unable to perfect the motion until after that period.

In the present case, since the defendant made his complaint known within the one year limit, and the defendant's counsel moved that the pleas be vacated shortly after his appointment, the trial court did not abuse its discretion in considering the motion timely.

WITHDRAWAL OF PLEAS.

Defendant contends that his guilty plea may be withdrawn as a matter of right when caused by a violation of a relevant constitutional right. In determining whether a defendant will be allowed to withdraw a plea of guilty, the test applied is whether a manifest injustice would exist if the plea were allowed to stand. State v. Reppin (1967), 35 Wis.2d 377, 151 N.W.2d 9. Though Reppin sets forth four illustrative situations constituting manifest injustice, these situations are not exclusive of other facts which meet the test of manifest injustice. State v. Reppin, supra; State v. Biastock (1969), 42 Wis.2d 525, 167 N.W.2d 231. This court has long recognized that a defendant may withdraw a plea of guilty as a matter of right where caused by a violation of a relevant constitutional right. Creighbaum v. State (1967), 35 Wis.2d 17, 150 N.W.2d 494. This rule was reaffirmed by this court in Ernst v. State (1969), 43 Wis.2d 661, 667, 170 N.W.2d 713, which was decided subsequent to Reppin and the adoption of the manifest injustice test.

Respondent contends, however, that defendant has waived any objections to violation of his constitutional rights by his voluntary plea of guilty. Respondent cites McMann v. Richardson (1970), 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763, for the proposition that a defendant by voluntarily pleading guilty, with advice and assistance of counsel, waives any claim that his plea was a result of an illegally obtained confession. In McMann, the United States Supreme Court held that a defendant who alleges only that he pleaded guilty in a state court because of a prior coerced confession is not, without more, entitled to a hearing on his motion for habeas corpus in a federal district court. However, the court in that case was considering a defendant whose plea was entered with full awareness of possible constitutional challenges to the admissibility of his confession, and was not concerned with a defendant who, at the time he pleaded guilty, was unaware of a potential challenge based on violation of constitutional rights prior to the plea.

A distinction between these two types of situations had been recognized in Wisconsin. In Hawkins v. State (1965), 26 Wis.2d 443, 132 N.W.2d 545, this court stated that a plea of guilty is deemed a waiver of objections to violations of constitutional rights occurring prior to entry of the guilty plea. However, the defendant in that case was aware of a potential challenge before he pleaded guilty.

'We are of the opinion, however, that a plea of guilty is properly deemed a waiver of the claim of unlawful search and seizure, where, as here, the pleas were voluntarily and understandingly entered by one who had assistance of counsel. The circumstances under which the same would be true if assistance of counsel had been waived need not be delineated here. Perhaps, in practice, the question would be decided in determining whether there has been intelligent waiver. Conceding that Hawkins, who had assistance of counsel, was influenced in his decision to plead guilty by his awareness of the incriminating evidence in the hands of the police and the fact that his motion to suppress had been denied, it does not seem unfair to require that if he wanted to litigate further his claim of unlawful search, he should have continued with his pleas of not guilty.' Hawkins v. State, ...