State v. Foellmi

• Decision Date: 13 March 1973
• Docket Number: No. S,S
• Citation: 205 N.W.2d 144,57 Wis.2d 572
• Parties: STATE of Wisconsin, Appellant, v. N. Paul FOELLMI, Respondent. tate 137.
• Court: Wisconsin Supreme Court

Page 144

205 N.W.2d 144

57 Wis.2d 572

STATE of Wisconsin, Appellant, v. N. Paul FOELLMI, Respondent.

No. State 137.

Supreme Court of Wisconsin.

March 13, 1973.

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

Steven Luse Abbott, Rice & Abbott, Sparta, for respondent.

This appeal involves the amended sentencing of the defendant, placing him on probation in lieu of his original sentence to the Wisconsin State Reformatory. He was charged in La Crosse county with two counts of burglary, contrary to sec. 943.10(1), Stats. After he waived his right to a preliminary examination, the defendant filed an application for consolidation of other burglary charges pending against him in other counties.

On May 11, 1972, an amended information was filed in the circuit court for La Crosse county, charging him with 16 counts of burglary committed in La Crosse and six other counties--Trempealeau, Jackson, Vernon, Dodge, Jefferson, and Monroe. Four days later the defendant entered a plea of guilty to these charges. Immediately following that plea a hearing was held at which Dr. Gary Palmer testified; he was a licensed clinical psychologist and had previously examined the defendant; he testified that he felt defendant would not be rehabilitated in a prison environment. Dr. Palmer also testified that prison would either cause defendant to develop acute psychosis or mold his character into a criminal pattern via his association with other inmates.

The trial court had also ordered a presentence investigation and report. This report recommended defendant be incarcerated as 'an object lesson (to) teach this young man that repeated deviant and criminal activity cannot be tolerated in the free community.' Also before the court in its sentencing deliberations was a letter from Bradley E. Mason, a rehabilitation counselor with the Department of Health and Social Services (defendant had been previously convicted of burglary in January 1971, and had been placed on probation for this incident). Mr. Mason urged the trial court to place defendant on probation 'contingent upon the weekly visits to a psychiatric consultant for indepth counseling and treatment.'

On the same day of the postplea hearing, May 15, 1972, the trial court convicted the defendant of all 16 counts of burglary and sentenced him to an indeterminate term of not more than five years on each of the first eight counts. Each of these terms was ordered to run concurrently with each other. The defendant was also sentenced to indeterminate terms of not more than five years on each of the latter eight counts. These sentences were also ordered to run concurrently. The sentence imposed for count nine was ordered to run consecutively to the sentence imposed for count one. The Wisconsin State Reformatory was designated as reception center.

After the defendant had been confined for some time at the Wisconsin State Reformatory, on July 10, 1972, the trial court entered an order returning the defendant to La Crosse county. The trial court's order recited that it had decided to review the defendant's sentence on its own motion. A hearing was then held on July 18, 1972, before the sentencing court. At this hearing the defendant testified he had been assigned to the auto body shop at the reformatory and was hopeful of obtaining similar employment upon his release from prison. The record also indicates that the trial court requested and received an evaluation of defendant's conduct while at the reformatory. This letter (dated July 12, 1972) is signed by Donald A. Cole, a social worker assigned to defendant's case. Mr. Cole concluded that he did not feel he could fairly determine whether defendant had learned a lesson from his incarceration at the reformatory. Cole did note, however, that incarceration would 'perhaps' benefit the defendant.

At this hearing the trial court stated for the record that it had originally sentenced the defendant with the mental reservation to call him back within ninety days and reduce his sentence. The court stated:

'The court at the time the sentence was imposed on this young man phrased the sentence frankly with the idea of review within ninety days, in the court's mind. I find myself as you well know I am leaving on the 23rd for the National College so that the ninety day period would have elapsed while I was gone and I would have preferred to have allowed him to remain approximately another thirty days but the court feels fairly certain that within the ninety days its discretion to bring him back is unquestioned. After that there may be some question and rather than get into that jurisdictional problem I have decided to do it in this manner. This was known only to my court reporter and myself because on the same day that the sentence was pronounced my calendar was so marked that I was calling this young man back. I would be less than human to tell you that for a two day period following the Noble trial he lost that and then on further reflection I came to the conclusion that I should not deviate from my original plan. I thought that this might be a situation with a young man who once he hears the prison gates clank behind him and he knows that he is not there for only nine months or one year but there with two consecutive sentences that it would not take him very long to learn this, that it would be at least two and a half years before he is out of there. I did not tell him that I was going to bring him back for review because it was the court's feeling that the sentence which was imposed was a stiff sentence. The court is well aware of that. On the other hand I well recognize the exposure that he had on these counts and it was not a sentence which would have bothered my conscience had I decided at some point to leave him at Green Bay and should I decide to leave it, it will not bother my conscience, but I am well aware of the forces that are at work in our society today in terms of what is proper methods of handling these people. We know we haven't been successful in sometimes in some areas and I am trying to weigh the factors which are involved and which have got to be considered here, but here is also a young man that is involved and I think that he well realizes that he has committed these crimes but the court is also concerned as to you know, what is this young man going to be ten years from now. You have seen plenty of examples of these young people who can't stay out of prison and we have seen some who made a good adjustment and became good citizens and even that relatively--strangely in a short period on the bench I can recall now four jurors who in my panels who have come to me and who have asked to be excused because they knew that on voire dire examination they were under oath and they were bound to tell the truth and these are people who had--four men who had criminal sentences and they have lived them down and I think that we consider them good successful people and I don't mean successfully financially but making their way and raising a family and rather than having to reveal it on voire dire they have asked to be excused. I think in our society at least these men who had gone through this, at least I think have done well and they have been excellent people since that time.'

At the conclusion of this hearing the trial court amended its May 15, 1972, judgment of conviction and sentencing as follows:

'IT IS ADJUDGED that the defendant is convicted as found guilty, and is hereby committed to the Wisconsin State Prisons for an indeterminate term of not more than three years on counts numbered 1 through 8 inclusive, and on counts numbered 9 through 16, inclusive.

'The sentence for counts #2 through #8 inclusive are to be concurrent with the sentence in count #1.

'The sentence on counts #10 through #16 are to be concurrent with the sentence of count #9.

'The sentence for count #9 shall run consecutively with that imposed for count #1.'

The trial court stayed the execution of sentence and placed defendant on probation. As conditions of probation the defendant was ordered to make restitution in the amount of $2,426.11 plus costs and to refrain from taking drugs or participating in drug traffic. The defendant was further ordered to make himself amenable to the guidance and treatment of Dr. Palmer and consult with his probation officer.

The State of Wisconsin appeals from this amended judgment of conviction and sentencing.

WILKIE, Justice.

One issue is presented by this appeal: May a trial court validly sentence an individual to a term of one year or more in the state reformatory with the intention (at the time of sentencing) of bringing such individual two months thereafter before the court in order to modify the initial sentence stay such sentence, and grant probation?

The trial court's original sentence here was invalid because it did not conform to the requirements of sec. 973.02, Stats. This section provides:

'973.02 Place of imprisonment when none expressed. When a statute authorizes imprisonment for its violation but does not prescribe the place of imprisonment, 1) a sentence of less than one year shall be to the county jail, 2) a sentence of more than one year shall be to the Wisconsin state prisons and the minimum under the indeterminate sentence law shall be one year, and 3) a sentence of one year may be to either the Wisconsin state prisons or the county jail. But in any proper case sentence and commitment may nevertheless be to the Wisconsin home for women, the department or any house of correction or other institution as provided by law.'

While the trial court sentenced the defendant to several terms, both concurrent and consecutive, in the state prison (the Wisconsin State Reformatory), it did so with the then present intention that the defendant would serve no more than ninety days of the sentence in the Wisconsin state prisons. The trial court stated for the record...