State v. Krieger

Decision Date01 May 1991
Docket NumberNo. 90-1771-CR,90-1771-CR
Citation163 Wis.2d 241,471 N.W.2d 599
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. William A. KRIEGER, Defendant-Appellant. d
CourtWisconsin Court of Appeals

Thomas E. Martin and Robin Shellow, Milwaukee, for defendant-appellant.

Donald J. Hanaway, Atty. Gen. and Sally L. Wellman, Asst. Atty. Gen., for plaintiff-respondent.



William A. Krieger appeals from a judgment of conviction and an order of the trial court denying his motions for postconviction relief. Krieger asked to withdraw his plea on the grounds that he had learned of a defense to the charges against him. He also asked the court to modify his sentence on the grounds that the sentence constituted "cruel and unusual punishment." Because we conclude that there has been no showing of a "manifest injustice" and the constitutional protection against "cruel and unusual punishment" does not justify the modification of a sentence, we affirm.

As part of a plea agreement, 1 Krieger entered a plea of no contest to eleven counts of sexual exploitation of children, sec. 940.203(2), Stats. (1987-88); three counts of first-degree sexual assault, sec. 940.225(1)(d), Stats. (1987-88); five counts of second-degree sexual assault, sec. 940.225(2)(e); and one count of enticing a child for immoral purposes, sec. 944.12, Stats. (1987-88). 2 The amended information alleged that Krieger's criminal activities involved nine juvenile male victims and had occurred for more than five years.

An extensive sentencing hearing was conducted during which Krieger and the state presented several lay and expert witnesses and numerous exhibits. Prior to the hearing, both sides filed voluminous memoranda and the trial court reviewed a one-hour videotape summary of the pornographic material involved. At the conclusion of the hearing, the court imposed concurrent and consecutive sentences totaling fifty years in prison.

Krieger filed two motions for postconviction relief. In his first motion, he sought to withdraw his plea and enter a plea of not guilty and not guilty by reason of mental disease or defect under sec. 971.15(1), Stats. 3 His second motion sought a modification of his sentence. After a lengthy evidentiary hearing, the trial court ruled that Krieger was not entitled to any relief.

There are two issues on appeal: (1) whether it is a "manifest injustice" to deny a defendant's postconviction motion to withdraw a plea when the importance of known facts, which would support a defense to the criminal charges, was not realized until after the sentencing; and (2) whether the statistical probability that a sex offender will be subjected to physical and psychological abuse in the prison system constitutes "cruel and unusual punishment" and justifies a modification of sentence.


As part of his preparation for the motion to modify his sentence, Krieger retained the services of Fred S. Berlin, Co-Director of the Sexual Disorders Clinic at the John Hopkins Hospital, for the purpose of determining whether Krieger was an appropriate candidate for asexualization by injections of a drug known as Depo-Provera. 4

As a spin-off of this assessment, Berlin informed Krieger's counsel that he diagnosed Krieger as suffering from pedophilia, which made it impossible for Krieger to be responsible for his criminal conduct. Pedophilia is classified as sexual disorder in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-III-R) (rev. 3d ed. 1987). DSM-III-R classified sexual disorders along with nonpsychotic disorders. Id. at 482, 484. Berlin opined that Krieger satisfied both the cognitive component (he did not appreciate the wrongful nature of his acts) and the volitional component (his pedophilia significantly impaired his capacity to conform his behavior to statutory requirements) of sec. 971.15(1), Stats.

In the trial court, Krieger argued that, with the development of this psychiatric evidence, he has a defense to the twenty criminal charges. He further argues that, to correct a "manifest injustice," his conviction should be vacated and he should be allowed to enter a plea of not guilty and not guilty by reason of mental disease or defect.

After noting Krieger's heavy burden at the hearing, the trial court denied Krieger's motions and held that there was no newly discovered evidence, that a different result would not occur, and that there was not a sufficient showing of "manifest injustice."

After sentencing, a defendant who seeks to withdraw a guilty or no contest plea carries the heavy burden of establishing, by clear and convincing evidence, that the trial court should permit the defendant to withdraw the plea to correct a "manifest injustice." See State v. Booth, 142 Wis.2d 232, 235, 237, 418 N.W.2d 20, 21, 22 (Ct.App.1987). As our supreme court had earlier stated:

The rationale behind the use of this higher standard of proof is that once the guilty plea is entered the presumption of innocence is no longer applicable, and when the record on its face shows that the defendant was afforded constitutional safeguards, the defendant should bear the heavier burden of showing that his plea should be vacated. Once the defendant waives his constitutional rights and enters a guilty plea, the state's interest in finality of convictions requires a high standard of proof to disturb that plea.

State v. Walberg, 109 Wis.2d 96, 103, 325 N.W.2d 687, 691 (1982) (footnote omitted), rev'd on other grounds sub nom. Walberg v. Israel, 766 F.2d 1071 (7th Cir.), cert. denied., 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985). The motion is addressed to the sound discretion of the trial court and we will only reverse if the trial court has failed to properly exercise its discretion. Booth, 142 Wis.2d at 237, 418 N.W.2d at 22.

The "manifest injustice" test for withdrawal of a plea after sentencing was adopted in State v. Reppin, 35 Wis.2d 377, 385-86, 151 N.W.2d 9, 13-14 (1967), where the supreme court accepted the 1967 tentative draft of what is now the plea withdrawal standard, sec. 14-2.1, of the American Bar Association's (ABA) Standards for Criminal Justice (2d ed. supp. 1986). 5 This standard provides that, after sentencing, a motion to withdraw a plea should be granted when the defendant proves withdrawal is necessary to correct a "manifest injustice." Standards for Criminal Justice, sec. 14-2.1(b). By way of example the standard lists six factual scenarios that could constitute "manifest injustice." 6 The supreme court has cautioned that these examples are not exhaustive of the factual situations that could constitute "manifest injustice." Reppin, 35 Wis.2d at 386, 151 N.W.2d at 14.

On appeal, Krieger ignores the "manifest injustice" test embodied in the ABA standard adopted in Reppin. Rather, he limits his argument to the proposition that the evidence he has presented establishes a "manifest injustice" on the merits. Before considering whether the postsentence development of a potential criminal responsibility defense under sec. 971.15(1), Stats., constitutes a situation that is a "manifest injustice," it is necessary to address some peripheral arguments made by Krieger. 7 Not finding any Wisconsin cases directly on point, Krieger constructs part of his argument upon decisions involving the withdrawal of a plea prior to sentencing. His reliance upon these cases is misplaced because a different standard applies in such cases. To withdraw a plea before sentencing, the defendant must establish a "fair and just reason," a mere showing of some adequate reason for the request. Libke v. State, 60 Wis.2d 121, 128, 208 N.W.2d 331, 335 (1973). On the other hand, the "manifest injustice" test, which is rooted in concepts of constitutional dimensions, requires the showing of a serious flaw in the fundamental integrity of the plea. Id.

Krieger also argues that State v. Pohlhammer, 78 Wis.2d 516, 254 N.W.2d 478 (1977), can be read for the proposition that it would be a "manifest injustice" to deny a defendant the right to present a defense to a criminal charge. Pohlhammer does not support Krieger's argument. It holds that the running of the statute of limitations goes to personal jurisdiction and, where the statute of limitations has run its course, the court is powerless to proceed to judgment against a defendant; therefore, because the court did not have personal jurisdiction in the first place, the judgment of conviction was vacated. Id. at 523-24, 254 N.W.2d at 481-82. A defense based on criminal responsibility is not a complete defense that prevents the court from proceeding against the defendant.

We turn now to Krieger's principal argument that to correct a "manifest injustice" he should be allowed to withdraw his plea and enter a plea of not guilty by reason of mental disease or defect. We begin our analysis by determining if the factual situation before us fits under any of the six factual examples in the ABA standard.

Our review of the record verifies that there was no error in the taking of Krieger's plea and that he received the full benefit of the plea agreement. We conclude that the only scenario that could apply is whether Krieger received effective assistance of counsel.

In fact, Krieger argues that if he had sought postconviction relief on the grounds of ineffective assistance of counsel, the trial court would have been required to grant such a motion under State v. Johnson, 133 Wis.2d 207, 395 N.W.2d 176 (1986), and State v. Felton, 110 Wis.2d 485, 329 N.W.2d 161 (1983).

Whether a defendant seeks to overturn a jury verdict or withdraw a plea, a claim that a defendant was denied effective assistance of counsel must be grounded on a proper record. See State v. Rock, 92 Wis.2d 554, 558-59, 285 N.W.2d 739, 741-42 (1979). A...

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