State v. Minniecheske, 84-1547-CR

Decision Date23 December 1985
Docket NumberNo. 84-1547-CR,84-1547-CR
Citation378 N.W.2d 283,127 Wis.2d 234
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Donald MINNIECHESKE, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

Richard D. Martin, Asst. State Public Defender, for defendant-appellant-petitioner.

Steven D. Ebert, Asst. Atty. Gen. argued for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.


The first issue of the case is whether a circuit court may accept a no contest plea when the defendant refuses to answer questions put to him at the plea hearing and repeatedly states that he is not waiving any of his constitutional rights.

The second issue is whether a no contest plea may be accepted without the circuit court explaining to the defendant the nature of the charge.

We hold that the defendant's plea should not have been accepted because of his intransigent refusal to answer questions and to waive his constitutional rights, and because the circuit court did not explain the nature of the charge. Accordingly, we reverse the decision of the court of appeals, remand the matter to the circuit court and direct the circuit court to permit the defendant to withdraw the no contest plea and set the matter for trial.

On October 18, 1982, a summons and complaint were filed in Shawano county circuit court charging Donald Minniecheske with one count of assuming to act as a public officer, contrary to sec. 946.69(1), Stats. 1 The defendant ultimately entered a no contest plea to the charge on September 16, 1983. He was sentenced to sixty days in the county jail, concurrent to a prison sentence he was then serving.

On January 11, 1984, the defendant filed a pro se motion to withdraw his no contest plea, along with an affidavit in support of the motion. On February 3, 1984, Judge Earl Schmidt filed a memorandum opinion denying the motion to withdraw the plea. It appears that the defendant never received this opinion inasmuch as he filed a second pro se motion to withdraw the plea on May 1, 1984. The trial court issued another memorandum opinion on June 26, denying defendant's motion, and appending the earlier memorandum opinion. On July 31, 1984, the defendant filed a pro se notice of appeal of the second memorandum opinion, in which he noted that he never received a copy of the first opinion. The court of appeals affirmed the trial court in an unpublished one-judge opinion.

At the plea hearing, the defendant's attorney stated that the plea agreement provided for a sixty-day sentence, concurrent to a prison term the defendant was then serving. The judge asked the defendant's attorney whether the defendant was "advised with regard to the rights that he has?" The attorney replied that the defendant:

"[U]nderstands that he has the right to a jury trial, has a right to testify or not to testify on his own behalf should he so choose ... and it is my understanding that Don does not wish to exercise those rights at this time."

The circuit judge added:

"Well, I think there are a couple other ones in there--right to proof beyond a reasonable doubt, speedy trial and bringing witnesses to testify on his own behalf and confronting other witnesses."

The defendant then told the circuit court:

"I am just pleading no contest. I am not waiving any rights. In fact, I would like to make a plea after the probation [sic parole] board meets; and if the Attorney General would make a recommendation for probation at that time, I will make a plea."

The defendant's attorney stated that the two proceedings--the parole board hearing and the plea hearing--were unrelated. However, the defendant's confusion apparently continued because the defendant again stated that he would plead after the parole hearing "if the Attorney General's office makes their recommendation for parole."

After an off-the-record conference between the defendant and his attorney, the attorney informed the court they were ready to proceed and the defendant stated: "I plead no contest."

The circuit court then began to ask the defendant questions about his age and education. The defendant objected that the questions were not relevant. The judge informed the defendant that the court had to make a determination that the plea was knowingly and voluntarily made. The defendant replied: "I want the record to show the only reason why I am pleading no contest is because the record is clear there is no way I can get a fair trial."

The defense attorney stated:

"I don't think that Don [defendant] is probably ever going to waive any rights that he has, ... but on my recommendation at this time he is not going to exercise his right--those rights which I previously enumerated."

The judge then stated:

"[T]he court also understands that Mr. Linehan has represented Mr. Minniecheske in the past and does believe therefore he is his counsel, and based upon that fact, the Court is going to find that it is a knowledgeable and knowing [sic] waiver, and that it is freely and voluntarily given."

The judge then accepted the no contest plea, found the defendant guilty and sentenced him to sixty days concurrent to the sentence he was then serving.

The defendant moved to withdraw his no contest plea on the basis that the record does not indicate that he affirmatively waived any of his constitutional rights. In response to this argument, the judge's memorandum opinion stated:

"[T]he Court finds that on the total record it would be as bleak as it would be futile to administer the law if it had to accept this statement at face value. The record reflects defendant had been in court before. It further shows defendant was attended by able counsel who stated at least three times that defendant was not exercising his rights. The Court after much bantering about, including permitting pauses for defendant to confer with his attorney, stated that the defendant had been represented in the past by the same able counsel and that the defendant had contacted the Court many times, and in writing, in the past all of which was cause for the Court to believe that the defendant was fully knowledgeable of the legal effect of his counsel's statements and his plea of no contest. This is a classic case of eating your cake and wanting it, too, and the Court cannot play such games."

We first consider what effect the defendant's refusal to expressly waive his constitutional rights had on the validity of the no contest plea. The defendant argues that a knowing waiver of constitutional rights is essential to a valid plea and that his contrary statement should have absolutely prevented acceptance of his subsequent plea.

The defendant's actions at the plea hearing were, in effect, contradictory. On the one hand, he expressly stated that he would not waive the relevant constitutional rights. On the other hand, his willingness to plead by itself constituted a waiver of those constitutional rights. See State v. Riekkoff, 112 Wis.2d 119, 128, 332 N.W.2d 744 (1983). The court of appeals concluded that this inconsistency resulted in a conditional plea, thereby rendering the condition a nullity. If the plea was a conditional plea, however, then the court of appeals erred by refusing to let the defendant withdraw it. After stating in Riekkoff that a plea by itself constitutes a waiver of rights, this court later in that same case held that "conditional guilty pleas are not to be accepted and will not be given effect, except as provided by statute." Id. at 130, 332 N.W.2d 744. See sec. 971.31(10), Stats.

We do not consider the plea in this case to be a true conditional plea. In the usual conditional plea situation, the defendant erroneously believes that the plea does not prohibit the exercise of a particular right, usually the right to appeal an evidentiary ruling under the exclusionary rule. Id. at 130, 332 N.W.2d 744. Here, the defendant did not mistakenly believe that he could still contest the charge against him, despite pleading no contest. The defendant clearly realized that his plea prohibited such a right and, therefore, he sought to withdraw the plea. By contrast, in Riekkoff the defendant believed he could appeal an evidentiary ruling consistently with his plea. This court ruled that such an appeal right was precluded by the plea. The court also concluded on its own initiative, however, that the circuit court should not have accepted the plea because the defendant erroneously believed that the appeal right was not waived by the plea. The instant case does not involve an attempt to exercise rights that the defendant mistakenly believed were preserved by his plea. In fact, it would be unreasonable for the defendant to believe that his no contest plea preserved the right to challenge the charge against him.

Although we do not consider this case to involve a conditional plea, the defendant's inconsistent conduct at the plea hearing nonetheless makes the plea defective. The essence of a valid plea is that the defendant knowingly and voluntarily waives the constitutional rights given up by pleading no contest or guilty. See State v. Bartelt, 112 Wis.2d 467, 474-75, 334 N.W.2d 91 (1983). When a defendant expressly refuses to waive his constitutional rights but also agrees to plead no contest, this court cannot conclude from such a record that the defendant fully understands the consequences of his actions. Because the constitutional validity of a plea must be determined from the plea hearing transcript itself, the defendant's inconsistent conduct at the hearing prevents the acceptance of a valid plea. See State v. Cecchini, 124 Wis.2d 200, 210, 368 N.W.2d 830 (1985). 2 Also, the defendant's refusal to participate in a colloquy with the judge at the plea hearing makes it impossible for this court to conclude that the defendant fully understood the proceeding at which he pled no contest.

The deficiencies in the plea proceeding described above are sufficient to permit the...

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