State v. Erickson

• Decision Date: 04 January 1972
• Docket Number: No. 47,47
• Citation: 53 Wis.2d 474,192 N.W.2d 872
• Parties: STATE of Wisconsin, Respondent, v. Steve ERICKSON, Appellant. State
• Court: Wisconsin Supreme Court

Page 872

192 N.W.2d 872

53 Wis.2d 474

STATE of Wisconsin, Respondent, v. Steve ERICKSON, Appellant.

State No. 47.

Supreme Court of Wisconsin.

Jan. 4, 1972.

On July 17, 1970, an undercover agent for the Wisconsin Department of Justice purchased two $10 packets of heroin from the defendant, Steve Erickson. On November 2, 1970, after proper pretrial proceedings, the defendant appeared in the circuit court for Fond du Lac county, charged with selling heroin in violation of sec. 161.02(1), Stats. Defendant's trial counsel sought to enter a plea of nolo contendere. The proffered plea was rejected, the trial court commenting: '. . . On a felony charge with a possibility of imprisonment, I will not accept a plea of nolo contendere.' Defense counsel then entered a plea of guilty and requested a presentence investigation. The record establishes that the plea was intelligently made and properly accepted by the trial court. On November 19, 1970, the trial resumed with the state presenting a prima facie case on the plea of guilty. As to the sentence to be imposed, defense counsel argued against incarceration; the defendant asked for probation; and the prosecutor recommended the minimum sentence of two years. The trial court sentenced the defendant to the Green Bay Reformatory for the minimum period of two years, stating, 'I have consistently denied probation where there has been a sale involved.' On March 2, 1971, postconviction defense counsel filed a motion for leave to withdraw the plea of guilty and to vacate sentence. On March 12, 1971, following a hearing on the motion, the trial court denied the motion. From the order denying such motion, defendant appeals.

Frank C. Lisheron, Jr., princeton, for appellant.

Robert W. Warren, Atty. Gen., Donald W. Smith, Asst. Atty. Gen., Madison, for respondent.

ROBERT W. HANSEN, Justice.

A completely adequate foundation was laid for the acceptance of the plea of guilty by the trial court in this case. (The trial court earlier rejected a plea of nolo contendere, but it was within its discretion to do just that. ¹) The defendant was represented by privately retained counsel, and testified that he was satisfied with the competency of his attorney and had had ample time to confer with him. He testified his plea was voluntarily entered without threats or promises. He was informed and stated that he understood he could be sentenced from two to ten years for the offense. The trial court determined that the defendant was a high school graduate and his decision to plead guilty was made after consultation with his attorney and parents. (Defendant's trial counsel entered the plea for his client, but this is proper procedure where not protested by the defendant. ²) Defendant's trial counsel testified that the defendant was intelligent and well acquainted with the entire situation. The state presented a prima facie case, proving the elements of the crime charged. All applicable standards for admitting a plea of guilty were complied with. ³

The sole basis for the claim of manifest injustice to the defendant, requiring reversal and withdrawal of the plea of guilty, relates to the statement by the trial court, at the time of sentencing, that he had '. . . consistently denied probation where there has been a sale (of heroin) involved.' The argument of defendant is that any judge who has consistently denied probation to sellers or pushers of heroin must inform a defendant, charged with the sale of heroin, of such prior dispositions or consistent policy before accepting a plea of guilty. We do not find in this statement by the trial court the binding future commitment that, at no time and under no circumstances, would the court consider probation as a sentencing alternative. It describes how similar cases have been handled, but does not preclude an exception to the general rule or consistent policy occurring, particularly where the presumption is that the trial judge will try each case, the sentencing phases included, on its merits. ⁴ However, was the defendant entitled to know of such policy, and did he suffer a 'manifest injustice' when not informed of it?

Before considering broader policy questions raised by the defendant's position on this appeal, the complete reliance upon a 'manifest injustice' claim requires asking whether this defendant under these circumstances has in fact been in any way unjustly treated. For a plea of guilty is to be ordered withdrawn only when '. . . such withdrawal is necessary to correct a manifest injustice. . . .' ⁵ It is not claimed that the defendant pleaded and was found guilty of a crime he did not commit. At the time of sentencing, his trial counsel, on his behalf, stated to the court that the defendant admitted having contributed $150 for the purchase of heroin and had been selling it. It is not claimed that the defendant was not fully informed of the range of penalties legislatively established for the crime of selling heroin. He was informed that he could be sentenced from two to ten years for the offense. In fact, the trial court advised him: 'Incidentally the penalty for this offense is not less than two years nor more than ten years; do you understand that the court could invoke the maximum penalty of ten years?' It is not disputed that defendant knew that three persons, arrested for the same crime and at the same time as defendant, had each been sentenced to two years in prison. Defendant testified he knew that these three people had been arrested and charged with the same crime. At the time of entry of his plea of guilty, he knew that each had pleaded guilty and each had been sentenced to two years in prison. It is true as this court has stated: 'Many defendants plead guilty with the hope and even with the reasonable expectation of receiving a sentence of probation. . . .' ⁶ Here the known disposition of the three other cases, involving the same charge and situation, would hardly leave probation as a 'reasonable expectation.' However, whether the expectation is reasonable or unreasonable, '(t)he fact that these hopes are not fulfilled does not constitute a 'manifest injustice. " ⁷ On the facts here, as to this defendant, we find no evidence of an injustice, manifest or otherwise.

Essentially, what we are asked to do on this appeal is to require trial judges in this state, prior to accepting a plea of guilty, to inform the defendant as to what sentence is likely to be imposed or, at least, what sentencing alternatives are unlikely to be considered in view of the nature of the charge or the prior dispositions of similar cases in the same court. There are strong and compelling reasons for not so doing. It is true that this court has insisted that a plea of guilty be voluntarily and intelligently made '. . . with sufficient awareness of the relevant circumstances and likely consequences of his plea. . . .' ⁸ However, the reference to 'likely consequences' referred to a requirement of a nonwithdrawable plea, made earlier by this court, that the plea was entered with '. . . knowledge of the charges (and) that the sentence actually imposed could be imposed.' ⁹ The insistence was that the defendant be informed of the full range of statutorily authorized penalties for commission of the crime charged, particularly the maximum sentence possible.

The Jacobs Case makes clear what 'knowledge of the essential facts and full understanding of the consequences of the plea' ¹⁰ encompasses by detailing what information was furnished the defendant in that case, prior to the acceptance of his plea of guilty:

'At the outset of the hearing on his plea of guilty, the defendant was questioned regarding his understanding of the nature of the charges and the sentences which could be imposed. The defendant stated he understood what he was being charged with and that he would be found guilty of that charge on his plea of guilty. The defendant was informed of the maximum sentence on each count. As to each offense, the defendant was asked whether, knowing that he would be found guilty on his guilty plea and knowing the maximum sentence, he wished to plead guilty. Defendant stated that he did. He also stated he understood that the maximum sentences could be imposed consecutively, and the sentence thus imposed could extend up to fifty years. The defendant further stated that no promises had been made to induce him to plead guilty and that he had given thorough consideration to his decision and had discussed the same with his attorney.' ¹¹

The defendant, at the time of entry of plea, is entitled to know what might or could happen to him, but not to an advance indication of what will happen.

The reason for the firm rejection of the suggestion that a judge ought, or ought even be permitted, to make an advance indication of what sentence is likely or probable is twofold. The first goes to the integrity of the sentencing function. Here the defendant requested and the court directed that a full presentence investigation be made. In addition, the state's prima facie case, subsequent...