State v. Chabonian, S

• Decision Date: 03 October 1972
• Docket Number: No. S,S
• Citation: 55 Wis.2d 723,201 N.W.2d 25
• Parties: STATE of Wisconsin, Respondent, v. Samuel CHABONIAN, Appellant. tate 1.
• Court: Wisconsin Supreme Court

Page 25

201 N.W.2d 25

55 Wis.2d 723

STATE of Wisconsin, Respondent, v. Samuel CHABONIAN, Appellant.

No. State 1.

Supreme Court of Wisconsin.

Oct. 3, 1972.

Coffey, Lerner & Murray, Milwaukee, William M. Coffey, Milwaukee, of counsel, for appellant.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for respondent.

HEFFERNAN, Justice.

Only the issues cognizable under sec. 974.06(1), Stats., are before the court:

'(Whether) the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack . . ..'

Defendant's initial contention is that the trial court was without jurisdiction to accept the guilty plea. It is contended that the testimony of the defendant in support of the guilty plea showed a defense to the charge. It is argued that therefore the plea was unacceptable and that the court was without jurisdiction to accept the plea and subsequently to impose sentence.

Although the issue of jurisdiction can be raised under sec. 974.06, Stats., the defendant's contention that the trial court lacked jurisdiction in this matter is without merit.

'Criminal jurisdiction of the subject matter is a power of a court to inquire into the charge of the crime, to apply the law, and to declare the punishment in the court of a judicial proceeding and is conferred by law.' Pillsbury v. State (1966), 31 Wis.2d 87, 94, 142 N.W.2d 187, 191.

The defendant was accused of a felony. He was an adult, appearing before the circuit court, which had subject matter jurisdiction of the crime charged (sec. 252.03, Stats.). The defendant was physically before the court:

'Personal jurisdiction in a criminal case attaches by an accused's physical presence before the court pursuant to a properly issued warrant, a lawful arrest or a voluntary appearance, and continues throughout the final disposition of the case.' Kelley v. State (1972), 54 Wis.2d 475, 479, 195 N.W.2d 457, 459.

Since there has been no objection timely made to the personal jurisdiction of the defendant, no defect in that respect can be claimed. While the failure to elicit a knowledgeable and voluntary plea would be error and entitle a defendant to a reversal, the court in the instant case had jurisdiction to accept the plea and impose sentence.

The defendant raises the claim that the plea was involuntarily and unknowingly made. A guilty plea must represent 'a voluntary and intelligent choice among the alternative courses of action open to the defendant.' North Carolina v. Alford (1970), 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162. When a guilty plea is coerced or is otherwise involuntary, it is subject to attack as a denial of due process. Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; Pennsylvania ex rel. Herman v. Claudy (1956), 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126. Thus, a constitutional deprivation is arguably posed by the defendant's claim that his statements at the time the guilty plea was entered showed that the facts before the court were insufficient to sustain a conviction on the guilty plea.

At the arraignment on April 24, 1967, the defendant was represented by counsel. At the outset, the judge asked the defendant whether the guilty plea was being entered with his full knowledge and consent, whether any threats or promises had been made no induce a plea of guilty, and whether he understood that a possible sentence of ten years imprisonment could be imposed. To each question, the defendant gave the answer appropriate to the acceptance of the guilty plea. Thereafter, a police officer was called to testify in support of the state's prima facie case.

Officer O'Brien testified that he and his partner had been dispatched to a parking-lot structure, where there had been reports of strange noises in the building. As they drove into the driveway of the parking lot, an automobile, driven by the defendant Chabonian, attempted to leave the premises. The automobile was stopped, but Chabonian was not questioned, for at that time Officer O'Brien's partner announced that the office door was open and someone was inside. Chabonian was permitted to leave, and the police officers immediately entered the parking lot office, where they found two individuals, the Hergan brothers, attempting to open the office safes. They were arrested, and Chabonian was picked up a short time later.

According to the testimony of O'Brien, Chabonian admitted that he had met the two safecrackers at a bowling alley. Chabonian told the officers that, prior to the arrival at the parking lot, the other two men told him they were 'going to knock off the Avenue Parking lot office.' Chabonian remained at the scene while the two Hergan brothers removed the pane of glass from the office window. There was testimony that Chabonian earlier in the evening had agreed with the Hergans to enter the parking lot premises.

Chabonian took the stand in support of his plea of guilty. He stated that, just before they got to the scene of the crime, the brothers told him that their intention was to burglarize the parking lot. The following exchange took place between the defendant and his counsel:

'Q What did they tell you?

'A I asked--I said where are we going. They said, 'We are going to go over there and rob the parking lot,' or whatever it is.

'Q And you readily went along with them, right?

'A Right. I went along with them.'

Chabonian then stated, in response to his counsel's question, that he had remained there for five or ten minutes when the thought occurred to him, "What the hell am I doing here?' So I proceeded to leave.'

On the basis of this testimony at the defendant's arraignment, the contention is now made that the defendant had never expressly or impliedly given his consent to the commission of this crime and that, in any event, he made a timely withdrawal from the course of criminal conduct.

The law applicable to the taking of this plea, in 1967, is set forth in State v. Strickland (1965), 27 Wis.2d 623, 135 N.W.2d 295. Therein this court held that, although it was error to accept a guilty plea when it has not first been determined by the trial judge that the plea was voluntarily and intelligently made, nevertheless, where counsel is present:

'Courts have the right to assume in such a situation that counsel has fulfilled his duty of proper representation by fully explaining to the accused the nature of the offense charged, the range of penalties, and possible defenses thereto, and satisfying himself that the accused understands such explanations, before permitting the accused to authorize the entry of a plea of guilty.' Strickland, supra, p. 631, 135 N.W.2d p. 301.

This presumption satisfies the requirements that the plea be made knowledgeably and voluntarily.

In Hanes v. State (1972), 55 Wis.2d 72, 75, 197 N.W.2d 802, and Gibson v. State (1970), 47 Wis.2d 810, 819, 177 N.W.2d 912, this court stated that the Strickland presumption applies to defendants who were convicted before the...