State v. Schill
| Decision Date | 22 February 1980 |
| Docket Number | No. 77-474-CR,77-474-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Clifford A. SCHILL, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
William B. Guis (argued), Thomas W. St. John, Robert H. Friebert and Friebert & Finerty, Milwaukee, on brief, for defendant-appellant.
Bronson C. La Follette, Atty. Gen., and Melvin K. Washington, Asst. Atty. Gen., on brief for plaintiff-respondent; William L. Gansner, Asst. Atty. Gen., argued.
Clifford Schill (hereinafter the defendant) appeals from orders of the circuit court for Dane County denying his post conviction motions.
The defendant was charged with two counts of intentionally filing false and fraudulent Wisconsin income tax returns for the calendar years 1969 and 1970. It was alleged that a "net-worth" investigation established an underreported personal tax liability of $12,000 for 1969 and $40,000 for 1970, contrary to sec. 71.11(42), Stats. 1
The case was set for a trial by jury on January 14, 1974 but some 3 days before trial the defendant's attorney advised the court that the defendant and the state had entered into a plea bargain agreement. Pursuant to the agreement, the defendant was to enter a plea of no contest to count number two of the information charging him with filing a false and fraudulent tax return for 1970 and the state would then move to dismiss the first count pertaining to the filing of a false and fraudulent tax return for 1969. The state also agreed to recommend to the court, and to allow the defense attorney to independently recommend, an appropriate fine, and the attorney general further agreed not to recommend imprisonment or probation. In addition, the state agreed not to commence any criminal actions against the defendant for underreporting his taxes for the years prior to 1970. Lastly, the state agreed not to commence any actions for revocation of the defendant's restaurant and catering corporations' liquor licenses, pursuant to sec. 176.121, Stats. 2 Prior to accepting the plea agreement the court asked the defendant if he understood the offense with which he was charged and the possible penalty involved. The defendant stated that he wished to enter a no contest plea to the filing of a false and fraudulent tax return for the year 1970 with a full understanding of the offense with which he was charged and the maximum penalties. Moreover, the defendant stated that he understood that a plea of no contest was substantially equivalent to a plea of guilty and that he was entering the plea of no contest freely and voluntarily after consulting with his attorney. Lastly, the defendant told the court that he understood he was giving up certain procedural and constitutional rights by entering his plea of no contest.
Based upon the plea bargain the court accepted the defendant's plea of no contest and found the defendant guilty of count number two of the information, rendering a false and fraudulent income tax return for the calendar year 1970, in violation of sec. 71.11(42), Stats. The court also found the plea was entered knowingly and voluntarily.
The court then inquired into the underlying facts of the case for purposes of determining an appropriate penalty. The state reported that, as a result of a net worth investigation conducted by the Department of Revenue, the defendant was found to have had a net taxable income of $63,000 for the calendar year of 1970, but only reported a $23,000 net taxable income. The defendant's attorney, while conceding that the defendant had filed a fraudulent return, disputed the dollar amount of unreported income. The attorney stated that a substantial portion of the unreported income was due to a conflict between the defendant's CPA and the tax department's counsel in the tax reporting benefits attributed to certain improvements to one of the defendant's corporations. The defendant offered to bring his accountant into court to substantiate his position.
The court, upon hearing the dispute concerning the amount of unreported income, suggested that perhaps it would be better to set aside the no contest plea and have a trial to determine the amount of income the defendant failed to report. Although the court acknowledged that the precise amount of unreported income was not an element of the offense, nevertheless, the court felt that it was a significant factor to be considered by the court when imposing a sentence. After a discussion between the prosecutor, the defense attorney and the court, with the defendant present, it was agreed that the court would accept the defendant's no contest plea to the charge of filing a fraudulent 1970 tax return but withhold imposing sentence until an adjourned date when the respective accountants would testify as to their calculated amounts of unreported income.
On March 5, 1974, the adjourned date of the hearing, the parties informed the trial court that they had reached a compromise on the question of the amount of unreported income, and the state agreed to reduce the net taxable income from $64,000.00 to $43,000.00. At this time the court ordered the information amended to conform with the new plea agreement as to the amount of net taxable income ($43,000). After agreeing to the amendment, the defendant confirmed his plea of no contest to the amended charge. The court then reaffirmed its acceptance of the new plea bargain and found the defendant guilty of one count of filing a false and fraudulent income tax return for the 1970 calendar year and dismissed the 1969 fraudulent income tax count.
Following the acceptance of the plea bargain the defendant requested that the defendant's accountant be permitted to testify only for the purpose of mitigation of the penalty. The accountant testified that the bulk of the alleged unreported income resulted from a conflict between the defendant's CPA and the tax department's accountant in calculating the cost of certain remodeling done on the defendant's Oak Creek property. The state disagreed with the defendant's accountant's testimony that the actual cost to the defendant of remodeling the property was $17,000 more than the amount previously reported on the 1970 tax return. The state relied on a net worth investigation conducted by the Department of Revenue that found a discrepancy in the defendant's net taxable income to support its conclusion that the defendant underreported his income. After hearing the defendant's accountant's testimony, the court found that the defendant Schill's conduct was not as purposely fraudulent as many cases that have come before the court where there were obvious means used to conceal the assets, but nevertheless the court concluded that it was a "fairly serious offense and if everybody did it, the whole tax system would break down." The court fined the defendant the sum of $4,000.00 plus costs in the amount of $3,000.00.
On April 7, 1977, more than 3 years after his conviction, the defendant filed alternative motions for post conviction relief seeking:
1. vacation of the judgment of conviction and dismissal of the charges;
2. leave to withdraw the plea of no contest and for a trial;
3. a writ of error Coram nobis;
4. a writ of habeas corpus; or
5. other appropriate relief pursuant to art. I, sec. 9 3 of the Wisconsin Constitution.
Alternatively, the defendant sought a judicial recommendation for a gubernatorial pardon with respect to the judgment of conviction. As grounds for the motion the defendant alleged that: (1) the plea was defective because the trial court failed to establish a factual basis for the charge; (2) the state subsequently determined that the actual amount of unreported income was $2,330.00 and not $20,000.00, and (3) the state failed to comply with the plea bargain by interfering with the defendant's ability to renew liquor licenses for his corporations.
The trial court denied the defendant's motion for post conviction relief on both grounds, first, that the motion was not timely filed and thus the court was without jurisdiction to consider the same, and secondly, if the court should find it had jurisdiction, that the record clearly established that the plea was voluntarily and knowingly made and there was an adequate factual basis to support the no contest plea. The court also concluded that the defendant was entitled to the benefit of the plea bargain concerning non-revocation of his liquor licenses and further he enjoined the Department of Justice from violating the express condition of the plea agreement with the defendant.
Following the denial of his post conviction motions, the defendant filed a motion seeking "a contempt citation against the State of Wisconsin for its failure to abide by the injunction entered by the Court on June 23, 1977, the State having violated said injunction by failing to honor provisions of the plea bargain." In the alternative, the defendant seeks vacation of the judgment and leave to withdraw the plea of no contest. Specifically, the defendant contends that the state has violated the plea bargain by requiring the defendant to relinquish his positions as officer and director in several closely held corporations in order for the corporations to have an agent eligible to secure renewals of liquor licenses. 4
After the hearing, the court issued an order denying the defendant's motion for contempt and the alternative motion for vacation of the judgment and leave to withdraw the no contest plea. The court ruled that it was ". . . without jurisdiction to vacate the judgment of conviction and allow withdrawal of the plea of no contest or, if the Court has jurisdiction, the Court declines to exercise it in that fashion." The court also concluded that there was "no violation of the literal language of the plea agreement." It is from this order denying a contempt citation and the earlier order denying...
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