State v. Ludwig
| Decision Date | 28 June 1985 |
| Docket Number | No. 83-1938-CR,83-1938-CR |
| Citation | 124 Wis.2d 600,369 N.W.2d 722 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Billie S. LUDWIG, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
Richard D. Martin, Asst. State Public Defender, for defendant-appellant-petitioner.
Mary Batt, Asst. Atty. Gen. (argued), for plaintiff-respondent; Bronson C. LaFollette, Atty. Gen., on briefs.
This is a review of an unpublished decision of the court of appeals affirming a decision of the circuit court for Kenosha county, Honorable Robert V. Baker, circuit judge. 120 Wis.2d 681, 357 N.W.2d 564. The circuit court's decision denied the motion for postconviction relief of the defendant, Billie S. Ludwig (Defendant). The issue on review is: Was the defendant denied her right to effective assistance of counsel under the United States and Wisconsin Constitutions by the failure of her attorney to inform her of a plea offer in a manner which made clear that she, and not the attorney, had the right to accept or reject the offer?
We conclude, under the circumstances of this case, that the Defendant was denied her right to effective assistance of counsel under the sixth amendment to the United States Constitution. It is not necessary to reach the issue under our state constitution. We, therefore, reverse the decision of the court of appeals affirming the denial of the Defendant's motion, vacate the judgment of conviction and remand the case for a new trial.
The Defendant was employed at the Sportsman's Bar in Paddock Lake, Wisconsin, where she worked primarily as a bartender and cook. On the night of February 19, 1982, she remained at the Sportsman's Bar to socialize after getting off work. That night, around midnight, the bartender ejected Ross Talbert and another man.
When Talbert returned a short time later, he was escorted out by Joe Mack, a bar patron. A fight ensued between Mack and Talbert in the parking lot and street. Mack returned to the bar and placed the knife he had wielded in the fight on the bar. The Defendant put the knife in her pocket.
When police arrived that night, the Defendant disclaimed knowledge of the fight and did not mention or give the knife to police. It is undisputed that the Defendant did not witness the fight. The morning after the incident, sheriff's deputies returned to the Sportsman's Bar where they confronted the Defendant with Mr. Mack's statement that she possessed the knife used in the fight. The Defendant took the deputies to her home and gave them the knife. For this conduct, the Defendant was charged with aiding a felon in violation of Section 946.47(1)(b), Stats.1981-1982. 1
She was tried on the charge and, on October 19, 1982, a jury returned a verdict of guilty.
On November 18, 1982, the Defendant filed a postconviction motion alleging several grounds for a new trial. Among the grounds stated were insufficiency of the evidence and that a new trial was required in the interest of justice. On November 19, 1982, that motion was denied, a judgment of conviction was entered and the Defendant was sentenced to pay a fine of $150 and ordered to perform forty hours of community service.
On July 28, 1983, the Defendant filed another postconviction motion. This motion alleged that the Defendant was denied her state and federal constitutional rights to effective assistance of counsel. A hearing on this motion was held on August 16, 1983. On September 21, 1983, the circuit court filed its decision denying the motion.
The Defendant appealed and on May 18, 1984, the court of appeals filed its decision remanding the case for findings of fact. On May 23, 1984, the circuit court filed its findings of fact. Subsequently, in a decision filed September 12, 1984, the court of appeals affirmed the circuit court's order denying the postconviction motions made on the grounds of insufficiency of the evidence and ineffectiveness of counsel.
This court granted review, 121 Wis.2d 703, 362 N.W.2d 424, limited to the issue of whether the Defendant was denied her right to effective assistance of counsel. We conclude that she was.
At the August 16, 1983, postconviction motion hearing, Assistant District Attorney William Koos, who prosecuted the Defendant in her trial, testified that on the morning of the first day of the Defendant's trial he communicated a plea offer to the Defendant's attorney. The terms of the offer were that if the Defendant would plead no contest or guilty to two unspecified misdemeanor counts, he would dismiss the pending felony count. Mr. Koos, although not sure of the exact words used by the Defendant's attorney, testified that her attorney "rejected the offer immediately...."
The Defendant's attorney testified that he had replied that he "didn't think so" to the plea offer made by Mr. Koos. He also testified that he talked to the Defendant about the offer prior to going into the afternoon session of the trial or during the recess in the afternoon session. When asked if he specifically asked the Defendant whether or not she wanted to accept the offer her attorney testified as follows:
The Defendant testified that prior to trial she informed her attorney that she did not want to be convicted of a felony and that she would take anything but a felony. The Defendant testified that she told her attorney that she did not want to be convicted of a felony because it would result in the loss of her bartender's license.
The Defendant testified that the first and only time she heard about the offer was after the first day of trial outside of her attorney's office. According to the Defendant, she was upset and her attorney told her that the state wanted to settle for two misdemeanors and if they were that unsure of themselves, he was going all the way. She testified that her attorney then patted her on the shoulder and left. When asked if her attorney ever asked her if she wanted to accept the offer that the state had made, she answered, "No, he never mentioned it." The Defendant testified that she thought she could not accept the offer because her attorney had already rejected it. She further testified that if she had been given the option to accept the offer at that time, she would have accepted it.
The Defendant testified that on the night of the first day of trial, after the discussion with her attorney, she and her husband went to a tavern at Paddock Lake. She testified that several people there told her that she had the right to accept the misdemeanors offer and that her attorney should not reject them for her. She said that she and her husband left the tavern agreeing that she had the right to settle for the two misdemeanors, but that she thought it was no longer possible to accept the offer because her attorney told Mr. Koos they "were going all the way."
No mention was ever made of the offer on the second day of trial by the Defendant or her attorney.
The testimony of the Defendant was corroborated by the testimony of her husband who was with her throughout the trial.
It is undisputed that the Defendant had no prior criminal record and had no prior arrests.
Upon remand from the court of appeals, the circuit court made the following findings of fact:
The sixth amendment to the United States Constitution provides:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with...
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