State v. Reppin

• Decision Date: 06 June 1967
• Citation: State v. Reppin, 35 Wis.2d 377, 151 N.W.2d 9 (Wis. 1967)
• Parties: STATE of Wisconsin, Respondent, v. Kenneth Walter REPPIN, Appellant (two cases).
• Court: Wisconsin Supreme Court

Page 9

151 N.W.2d 9

35 Wis.2d 377

STATE of Wisconsin, Respondent, v. Kenneth Walter REPPIN, Appellant (two cases).

Supreme Court of Wisconsin.

June 6, 1967.

Bernard Goldstein, Milwaukee, for appellant.

Bronson C. La Follette, Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., Robert E. Sutton, Asst. Dist. Atty., Milwaukee County, Milwaukee, for respondent.

HALLOWS, Justice.

Reppin argues: (1) That his appointed trial counsel was so ineffective as not to amount to assistance of counsel as guaranteed by the constitution and consequently he may withdraw his plea of guilty as a matter of right, and (2) his guilty plea was not intelligently made and therefore he should be permitted to withdraw it.

On the evening of September 22, 1965, Reppin with one Richard Allen Jenson stole a Chevrolet automobile in the city of Milwaukee, drove it to a filling station in West Allis and had the tank filled with gas. Not having any money Reppin told the attendant he had left his wallet at work and offered to leave the spare tire as security. The offer was declined but Donald Bittner, an off-duty station attendant, offered to go with Reppin and Jenson to get the money and got into the back seat of the car for that purpose. After some driving Reppin stopped the car to attempt to get rid of Bittner but before ordering him out, Jenson, who was sitting on the passenger side of the front seat, turned around, grabbed Bittner by his shirt, put a knife to his throat and directed him to empty his pockets. Reppin watched the proceedings and told Jenson to let Bittner keep his class ring and some keys.

After the robbery Jenson and Reppin abandoned the Chevrolet and stole an Oldsmobile and headed north toward Michigan. On the way they stopped and spent some of the money taken from Bittner on beer. The next day they were arrested in Peshtigo and returned to Milwaukee.

After a waiver of their preliminary hearings, Reppin and Jenson appeared before the circuit court on October 13, 1965. Neither had an attorney at that time although the waiver of the preliminary hearing was apparently on the advice of counsel. Reppin and Jenson being indigent, the trial judge appointed an attorney to represent them, indicating that in the event there should be a conflict of interest he would appoint a separate attorney for Reppin. During an adjournment, the attorney interviewed both defendants and later indicated to the court no conflict of interest existed. Both defendants pleaded not guilty and waived a jury trial and the trial was set for October 21.

On that day Reppin and Jenson appeared with their court-appointed counsel, who indicated initially that both Reppin and Jenson had decided to change their pleas and plead guilty to both the motor vehicle and the robbery charges. After an examination of Jenson as to the voluntariness of his pleas the trial judge accepted Jenson's plea of guilty on both charges. The trial judge then examined Reppin who indicated he wished to plead guilty to both charges, but after questioning by the court regarding the consequences of the pleas, counsel for Reppin indicated he wished to change his plea to the robbery charge back to not guilty. At this point an adjournment was had, after which counsel again stated to the court there was no conflict of interest in his representing both defendants and Reppin wished to enter a plea of guilty to the robbery charge. Thereupon, counsel, the district attorney and the court all examined Reppin regarding the voluntariness of his guilty plea.

Upon questioning by the court Reppin disclosed he pleaded guilty because it was explained to him that he was just as guilty as Jenson because he did not try to stop Jenson from robbing Bittner and spent some of the stolen money. The court then interrogated Reppin on whether he was driving the car at the time of the offense, whether the offense happened in the car, whether Reppin knew what was going on, and whether he did anything to aid Bittner during the robbery. After this questioning, the trial court accepted Reppin's pleas. Post-plea testimony was then taken and the trial judge found the defendants guilty on their pleas of guilty. ¹ Upon denial of Reppin's motion to set aside the conviction and permit the withdrawal of his guilty pleas, the present counsel on appeal was appointed.

The principles applicable to the problems involved in the withdrawal of a plea of guilty have not been adequately articulated either in this jurisdiction or in other jurisdictions. In Pulaski v. State (1964), 23 Wis.2d 138, 142--143, 126 N.W.2d 625, 628, we stated that a motion to withdraw a plea of guilty and for a new trial is not governed by sec. 958.06, Stats., but stands on other grounds and is a motion '* * * directed to the discretion of the court in the interest of justice which the court has the inherent power to hear.' See also State v. Payne (1964), 24 Wis.2d 603, 129 N.W.2d 250. The time within which such an application might be made was fashioned by analogy to sec. 958.06 and was limited to one year from the date of the finding of guilty by the court. This did not mean a motion to withdraw the plea could not be made prior to the finding of guilty or before sentencing and we think less proof would be needed to grant such a motion than if it were made after sentencing.

As to the grounds necessary for the withdrawal of the plea, it was stated in Pulaski, 23 Wis.2d, p. 143, 126 N.W.2d p. 629, '* * * the court will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertance * * * (or) * * * if for any reason the granting of the privilege (of withdrawing the plea and standing trial) seems fair and just,' quoting Kercheval v. United States (1927), 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009. See also Annos., Right to Withdraw Plea of Guilty, 20 A.L.R. 1445, and 66 A.L.R. 628; Gordon v. State (1922), 178 Wis. 205, 188 N.W. 752. We pointed out in Van Voorhis v. State (1965), 26 Wis.2d 217, 223, 131 N.W.2d 833, 836, that an accused has a right o withdraw his plea if he establishes '* * * in fact a denial of a relevant constitutional right, such as right to counsel,' which is the equivalent of saying the trial court abuses its discretion as a matter of law in not allowing the withdrawal of a plea under such circumstances. Accord, State v. Koerner (1966), 32 Wis.2d 60, 145 N.W.2d 157. The discretion of the court is a legal discretion governed by principles of law and the accused seeking to withdraw his guilty pleas has the burden of showing adequate grounds for withdrawal. Mueller v. State (1966), 32 Wis.2d 70, 74, 145 N.W.2d 84. See People v. Bauman (1955), 131 Cal.App.2d 595, 281 P.2d 74; Watts v. United States, 107 U.S.App.D.C. 367 (1960), 278 F.2d 247. This burden is the clear and convincing evidence test and such burden is in accord with the rule in other jurisdictions. See People v. Singh (1957), 156 Cal.App.2d 363, 319 P.2d 697. See also Note, 64 Yale Law Journal (1955) 590, 593.

Recently the American Bar Association Project on Minimum Standards for Criminal Justice issued a tentative draft on Standards Relating to Pleas of Guilty. ² These standards adopt the 'manifest injustice' test of Rule 32(d) of the Federal Rules of Criminal Procedure ³ and implements it with four factual situations which the advisory committee believes independently establish manifest injustice when proved by the defendant. We agree and adopt this standard. We think too the four fact situations are not exhaustive of situations which might constitute manifest injustice. And, a court would abuse its discretion if it denied a request to withdraw a plea of guilty when any one of these four grounds was proved. Reppin's contentions fairly fall within the exemplified scope of the 'manifest injustice' rule. He argues he was denied effective assistance of counsel and that his plea of guilty was involuntary in the sense it was not intelligently made. True, the defendant has not alleged as a ground for withdrawing his plea that he is innocent of the charge to which the plea was entered, but such an allegation is not a condition precedent to the granting of the motion if manifest injustice is shown. The test at this stage is not whether the defendant is guilty but whether he was fairly convicted.

Reppin argues the character and quality of the representation which satisfies the constitutional mandate was denied him because he was required to share counsel with Jenson and their positions were inconsistent. In Mueller v. State, supra, 32 Wis.2d at 77, 145 N.W.2d at 89, we recognized that '* * * one attorney may represent two defendants indicted for participation in the same crime, unless the interests of the defendants are shown to be in conflict,' citing Glasser v. United States (1942), 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; and Massey v. State (1965), 28 Wis.2d 376, 137 N.W.2d 69. We cannot hold the representation of two codefendants charged with the same crime ipso facto creates a conflict of interest and thus impairs the effective assistance of counsel. We think, however, as pointed out in Glasser, that the added responsibility entailed in the defense of a second defendant might in fact in and of itself sufficiently impair counsel's effectiveness in some cases so as to require relief. This, of course, is less likely when pleas of guilty are entered than when dual representation is given in an extensive trial. The concept of 'effectiveness' of the assistance of counsel as a part of the constitutional guaranty appeared first in Powell v. State of Alabama (1932), 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, when all the members of the county bar association were appointed defense counsel and no one took the appointment seriously. Since the right to effective counsel now exists prior to trial and extends through sentencing even unto an appeal, ⁴ shared counsel, although competent, as a general rule is more likely to be...