State v. Riekkoff

• Decision Date: 26 April 1983
• Docket Number: No. 81-1582-CR,81-1582-CR
• Citation: 332 N.W.2d 744,112 Wis.2d 119
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Ronald Craig RIEKKOFF, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 744

332 N.W.2d 744

112 Wis.2d 119

STATE of Wisconsin, Plaintiff-Respondent, v. Ronald Craig RIEKKOFF, Defendant-Appellant-Petitioner.

No. 81-1582-CR.

Supreme Court of Wisconsin.

Argued March 1, 1983.

Decided April 26, 1983.

William J. Tyroler, Asst. State Public Defender, for defendant-appellant-petitioner.

Jeffrey M. Gabrysiak, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

HEFFERNAN, Justice.

This is a review of an unpublished opinion of the court of appeals dated July 20, 1982, affirming a judgment of conviction of the circuit court for Milwaukee county, MICHAEL D. GUOLEE, Circuit Judge.

The question on this appeal is whether, following a guilty plea, a defendant has the right to appellate review of an order denying the admission of his proffered evidence, when a condition of the plea bargain was the defendant's reservation of the right to challenge the ruling upon appeal, the prosecutor agreed to the conditional plea and the reservation, and the trial judge acquiesced in the arrangement.

We conclude that the answer must be "no," and, accordingly, we affirm that determination by the court of appeals, subject to defendant's option to move for a withdrawal of his plea.

The defendant, Ronald Craig Riekkoff, was charged with burglary in the city of Milwaukee under the provisions of sec. 943.10(1)(a), Stats. Because he had been convicted of three felonies within five years of the charged offense, the provisions of sec. 939.62, increased penalty for habitual criminality, were applicable.

Prior to setting the case for trial, the circuit judge, upon learning of the intention of the defendant to offer evidence that, because of intoxication, he lacked the mental capacity to form the requisite intent to commit the crime, scheduled a hearing on the question of the admissibility of such testimony. At the hearing, defendant made an offer of proof by the testimony of a psychiatrist. The judge ruled that such testimony was inadmissible under Steele v. State, 97 Wis.2d 72, 294 N.W.2d 2 (1979).

Subsequent to that ruling, the defendant pleaded guilty. The prosecutor stated the terms under which the state accepted the defendant's plea:

"[W]e are agreeing that if the defendant wishes to proceed to the appellate review claiming that the Court denied him a certain witness or privilege to assert the witness, we do not believe that the plea entered in this case will affect that or we state that it's a waiver of that argument."

Defense counsel asked that the trial judge make it clear that the matter of the admissibility of the expert psychiatric testimony was preserved for appellate review despite the guilty plea. Although the judge was not explicit in his acquiescence in the defendant's position, nevertheless he did not disagree with it. The parties on this appeal both assert that the judge concluded that the right of appellate review of the order would be preserved. The defendant was found guilty upon his plea and was sentenced to a term of five years in the state prison.

Appeal was taken, but the court of appeals refused to review the trial court's exclusion of the psychiatric testimony. It rejected "the defendant's contention that the parties and the trial court may stipulate to the right of appellate review." It affirmed the judgment of the trial court.

The court of appeals relied upon Mack v. State, 93 Wis.2d 287, 293, 286 N.W.2d 563 (1980), for the general proposition that a "voluntary entry of a guilty plea waives the right to raise on appeal nonjurisdictional issues." Because it viewed the question here--the admissibility of evidence--as nonjurisdictional, it indulged in no further discussion of the question. In the instant case, we need not concern ourselves with the exact boundaries of the rule relied upon by the court of appeals, nor need we conclude that a guilty plea waives all defects except those relating to subject-matter jurisdiction, for in the instant case Riekkoff, conceding that the general rule would exclude his appellate review, only asserts that review may be preserved when the plea of guilty is conditioned upon the right to assert the question on appeal and there is agreement by the prosecutor and acceptance of the plea by the trial judge.

The general guilty-plea-waiver rule has its modern genesis in Wisconsin in Hawkins v. State, 26 Wis.2d 443, 132 N.W.2d 545 (1965). Hawkins involved the denial of the defendant's motion to suppress evidence which had been obtained in a search by police officers. Following the trial court's denial of the motion to suppress, Hawkins pleaded guilty. Subsequent to conviction on the plea, Hawkins sought to withdraw his plea, reasserting that his arrest and the subsequent search, which produced incriminating evidence, were unlawful. Upon appeal from the trial court's order denying Hawkins' motion to withdraw his guilty plea, this court refused to address the merits of the order denying the motion to suppress. We said:

"[W]ithout deciding the controversy over the validity of the search, we conclude that Hawkins, by his plea of guilty, waived his right to litigate that question." P. 446, 132 N.W.2d 545.

We said further:

"It appears to be the general rule, that a plea of guilty, voluntarily and understandingly made, constitutes a waiver of nonjurisdictional defects and defenses, including claims of violation of constitutional rights prior to the plea." P. 448, 132 N.W.2d 545.

The general waiver rule of Hawkins has been applied in numerous instances by this court. ¹

Although the rule has found widespread application, the guilty-plea-waiver rule does not deprive an appellate court of its subject matter jurisdiction. Thus, in Flores, supra at 510, the court said it chose to consider the constitutional issue, although the defendant by his plea had waived the right to assert it. A similar rationale was utilized in Mack v. State, 93 Wis.2d 287, 296, 286 N.W.2d 563 (1980). The guilty-plea-waiver rule, like the general rule that failure to timely raise objections at trial will result in waiver, is a rule of administration and not of power. Brown County v. H & SS Dept., 103 Wis.2d 37, 42, 307 N.W.2d 247 (1981).

In the instant case it is clear that, with a proper record before us, as there is here, we could decline to enforce the waiver rule and consider the merits of Riekkoff's appeal from the trial court's order denying the psychiatric evidence. The question on this review, however, is a narrow one--granted that in the absence of conditions imposed upon the plea there was a waiver of the right to review the order, is it appropriate public policy to permit the parties by their agreement to condition the plea and to impose upon this court (or the court of appeals) the obligation to abandon the general waiver rule and to review the order. ²

As a matter of state public policy, the legislature has abandoned the guilty-plea-waiver rule in one situation. Sec. 971.31(10), Stats., Sess.Law 1969, ch. 255, sec. 63, supersedes the holding of Hawkins v. State, supra, and provides:

"An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a defendant may be reviewed upon appeal from a judgment of conviction notwithstanding the fact that such judgment was entered upon a plea of guilty."

The Judicial Council's comment to this statutory provision states:

"Sub. (10) is a new provision. It permits a defendant to appeal from a guilty plea when, prior to the entry of the guilty plea, the court had denied a motion to suppress evidence. On review, the appellate court can determine whether or not the order denying a suppression of evidence was proper. This subsection, based upon N.Y.Cr.Code s. 813-c., should reduce the number of contested trials since in many situations, the motion to suppress evidence is really determinative of the result of the trial. In such instances defendants usually are only contesting the legality of the search and not whether or not they did, in fact, possess the item seized." 1970 Wisconsin Annotations 2142.

This court has followed the rationale of the comment and pointed out in State v. Meier, 60 Wis.2d 452, 210 N.W.2d 685 (1973), that one of the purposes of the statute is to reduce the number of fully contested trials when the only issue is whether the order denying a motion to suppress was proper.

Thus, in respect to motions to suppress, a conditional guilty plea, an agreement to plead guilty only if the denial of the motion to suppress can be addressed on appeal, is unnecessary. The right to appeal in that situation exists as a matter of legislatively established public policy whether or not, as a general proposition, this court approves conditional guilty pleas.

In prior cases this court has addressed what were, nominally at least, conditional guilty pleas. However, no case has been brought to our attention in which the party explicitly conditioned the plea upon the right to appeal a losing motion and both the prosecutor and the judge took the position that the guilty plea would not waive the right of appeal. In Foster v. State, 70 Wis.2d 12, 233 N.W.2d 411 (1975), it was asserted on appeal that the defendant and his counsel did not intend the plea of guilty to a reduced charge of burglary to waive the challenge to the right to a speedy trial. It was asserted that the guilty plea was a qualified one which reserved the speedy-trial issue for appeal. There is, however, no intimation in Foster that either the prosecutor or the trial judge acquiesced in the reservation of the speedy-trial issue. The court responded to defendant's argument in Foster by saying that, even though the defendant expressly intended to plead guilty and yet reserve the right to appeal, that did not change or affect the application of the general rule that a guilty plea waives any objections grounded on the right to a speedy trial. This court relied upon the...