State v. Strickland

• Citation: 27 Wis.2d 623,135 N.W.2d 295
• Parties: STATE of Wisconsin, Respondent, v. James STRICKLAND, Appellant.
• Decision Date: 01 June 1965
• Court: United States State Supreme Court of Wisconsin

Page 295

135 N.W.2d 295

27 Wis.2d 623

STATE of Wisconsin, Respondent, v. James STRICKLAND, Appellant.

Supreme Court of Wisconsin.

June 1, 1965.

Rehearing Denied Sept. 10, 1965.

Motion for a new trial pro se by defendant James Erwin Strickland.

On May 13, 1963, a complaint, warrant and information were issued against defendant charging him with operating a motor vehicle without the consent of the owner contrary to sec. 943.23, Stats. He was arrested and arraigned on the same day in the county court of Dane county before Judge BUENZLI, waived counsel, and pleaded guilty to the information. A presentence investigation was ordered, and on June 25, 1963, defendant appeared in court in person and by Attorney Richard E. Lent for sentencing. The court then placed defendant on probation for one year and withheld sentence.

Thereafter, on July 1, 1963, a complaint was filed and warrant issued charging defendant with armed robbery and theft of $1,034. Defendant appeared before Judge BUENZLI on July 3, 1963, accompanied by Mr. Lent, his attorney, and through him pleaded guilty to counts of armed robbery and theft charged in the information, which information had been filed that day. On July 17, 1963, defendant without counsel appeared before Judge BUENZLI for sentencing. Since his probation had been revoked defendant was sentenced for operating a motor vehicle without owner's consent as well as for armed robbery and theft. He was given fifteen years on the armed robbery charge, and five years each on the theft and operating a motor vehicle without the owner's consent charges, all three sentences to run concurrently.

On June 22, 1964, defendant filed with the county court a motion for new trial in which he requested the appointment of counsel to represent him on such motion. He submitted an affidavit of indigency in support of his request for appointment of counsel. The motion alleged that defendant at time of sentence was eighteen years of age and had less than an elementary school education. The grounds stated upon which a new trial was sought are these:

(1) Defendant was not indicted by a grand jury.

(2) Defendant was denied a preliminary hearing.

(3) The court failed to inform defendant of his right to counsel and failed to protect defendant who was ignorant of his right because of his limited education. (This necessarily has reference to the prosecution for operating a motor vehicle without the owner's consent.)

(4) Defendant was not provided with counsel at time of sentence.

The motion also requested that he be granted a hearing thereon. The court did not rule on Strickland's request for counsel. On September 15, 1964, the county court held a hearing on the motion. Neither defendant nor any counsel for defendant appeared. The court concluded that 'there are not sufficient reasons stated in the petition to warrant the Court granting the motion,' and ordered that the motion for a new trial be denied. Defendant has appealed from the order. Attorney Shirley S. Abrahamson was appointed by this court to represent the defendant upon this appeal.

La Follette, Sinykin, Doyle & Anderson, Madison, Shirley S. Abrahamson and Robert H. Friebert, Madison, of counsel, for appellant.

Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, for respondent.

CURRIE, Chief Justice.

Defendant's motion for new trial did not state that he desired to change his pleas of guilty. Both defendant and the state, however, treat his motion as one to withdraw his pleas in view of Pulaski v. State (1964), 23 Wis.2d 138, 141, 126 N.W.2d 625. Although an application for leave to withdraw a plea is ordinarily addressed to the discretion of the court such withdrawal would be a matter of right if the applicant established a denial of a relevant constitutional right. Van Voorhis v. State (1965), 26 Wis.2d 217, 223, 131 N.W.2d 833.

Defendant here contends that his motion to withdraw his pleas of guilty should have been granted as a matter of right on these grounds:

(1) Defendant did not intelligently waive counsel and intelligently enter his plea of guilty at his arraignment on the charge of operating a motor vehicle without the owner's consent.

(2) Defendant's convictions of armed robbery and theft were based on pleas of guilty not intelligently and understandingly made.

(3) The armed robbery count of the information was void because it is alleged it failed to charge an essential element.

(4) Defendant was improperly denied a preliminary hearing.

(5) All three sentences were void because defendant was not represented by counsel at time of sentence.

(6) The trial court should have appointed counsel to represent defendant on his motion to withdraw his pleas.

Defendant has abandoned on this appeal the ground raised in his motion that his constitutional rights were denied because of the failure to indict him by grand jury.

Arraignment on Charge of Operating a Motor Vehicle Without

Owner's Consent.

The trial court, at the time of defendant's arraignment on the charge of operating a motor vehicle without the owner's consent, did advise defendant of his right to counsel. The court, however, did not explain that if defendant was indigent he was entitled to have counsel appointed for him at public expense. This court has held that a perfunctory statement made to an accused that he is entitled to be represented by counsel, without advising that counsel would be appointed at public expense, is not sufficient compliance with sec. 957.26(2), Stats. Van Voorhis v. State, supra, 26 Wis.2d at page 221, 131 N.W.2d 833; State ex rel. Casper v. Burke (1959), 7 Wis.2d 673, 677, 97 N.W.2d 703; State v. Greco (1955), 271 Wis. 54, 57, 72 N.W.2d 661. ¹

Furthermore, if an accused is not represented by counsel, it is the duty of the trial court before accepting a plea of guilty to make sure that the accused understands the nature of the crime with which he is charged and the range of punishments. State ex rel. Burnett v. Burke (1964), 22 Wis.2d 486, 494, 126 N.W.2d 91. See also Ailport v. State (1960), 9 Wis.2d 409, 417, 100 N.W.2d 812. The record does not disclose that this was done.

After defendant's arraignment he did appear with Mr. Lent as his counsel before the trial court on June 25, 1963. The proceeding opened by the court stating that defendant 'is before the Court this morning for sentencing on a charge of operating a motor vehicle without the owner's consent.' Mr. Lent Made a plea to the court for leniency during the course of which he stated:

'I think the record before the Court speaks for itself; that he [defendant] came before the Court and faced up to his guilt and admitted it and chose not to put the state and the Court to the time and trouble of a trial. I think this is an indication of the fact now that he has reached eighteen years of age and starting to mature, he will be able to fulfill any promise of good faith that the Court might see fit to extend him.'

Thus defendant's counsel took advantage of defendant's plea of guilty previously made without benefit of counsel as a ground for the court extending leniency. This strategy paid off because the trial court placed defendant on probation for one year and withheld sentence. The United States supreme court held in Henry v. State of Mississippi (1965), 379 U.S. 443, 451, 85 S.Ct. 564, 13 L.Ed.2d 408, that a constitutional right may be waived by 'counsel's deliberate choice of strategy' and that this would be binding upon the accused client. In State ex rel. Goodchild v. Burke (1965), 27 Wis.2d 244, 133 N.W.2d 753, the rule of the Henry Case was applied in a situation where counsel for defendant for strategy made no objection to the introduction of defendant's confessions and admissions into evidence. It was held that this constituted a waiver of the right to later contend that these confessions and admissions had been involuntarily obtained in violation of defendant's constitutional rights.

Mr. Lent, counsel for the instant defendant, is a former assistant district attorney of Dane county, experienced in the field of criminal law. When he was retained to represent defendant after the latter's arraignment a choice of two alternative courses was open to him. One was to move to withdraw or change the plea of guilty because of any defects, constitutional or otherwise, in the arraignment proceedings. The other was to utilize the existing guilty plea and urge it as a reason for leniency. Counsel chose the latter and we conclude this was an effective waiver of the right to now raise the objections here made that defendant did not intelligently waive counsel and understandingly enter his plea of guilty.

Counsel for defendant rely on Hamilton v. State of Alabama (1961), 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, as authority that any defect with respect to intelligent waiver of counsel at time of arraignment cannot be cured by later appointment of counsel. The facts in the Hamilton Case are readily distinguishable. It was a capital case in which the defendant received a death sentence in an Alabama court on a charge of breaking and entering with intent to ravish. He was not represented by his appointed counsel at time of arraignment and pleaded 'not guilty.' Thereafter he was tried with counsel present and convicted. In reversing a judgment of the Alabama supreme court denying relief by way of coram nobis, the United States supreme court stressed that under Alabama law a plea of not guilty by reason of insanity or a plea in abatement had to be made at time of arraignment, or the opportunity to do so was lost. This feature of the Hamilton Case was pointed out in Sparkman v. State (1965), 27 Wis.2d 92, 101, 133 N.W.2d 776. Guilty Pleas Entered to Charges of Armed Robbery and Theft.

Defendant contends his plea of guilty entered through counsel to the charges of armed robbery and theft were not intelligently and understandingly made. This is...