State v. Willing

• Decision Date: 04 June 1968
• Citation: State v. Willing, 159 N.W.2d 15, 39 Wis.2d 408 (Wis. 1968)
• Parties: STATE of Wisconsin, Respondent, v. Kenneth WILLING, Appellant.
• Court: Wisconsin Supreme Court

Page 15

159 N.W.2d 15

39 Wis.2d 408

STATE of Wisconsin, Respondent, v. Kenneth WILLING, Appellant.

Supreme Court of Wisconsin.

June 4, 1968.

Cleland P. Fisher and George E. Smith, Jr., Janesville, for appellant.

Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, Robert J. Ruth, Rock Co. Dist. Atty., Janesville, for respondent.

CONNOR T. HANSEN, Justice.

The fundamental basis for the motion for withdrawal is that counsel for the defendant had but a five or ten minute interview with him prior to their court appearance, at which time the preliminary examination was waived and a plea of guilty entered. It is urged that as a result thereof, the motion for withdrawal of the plea should be granted to correct a manifest injustice.

The defendant was eighteen years of age. When he was arraigned on January 30, 1967, his right to counsel was explained to him. He asked to confer with his mother who was then in the courtroom. The court recessed and thereafter the court was informed defendant wished to retain counsel. Bail was set and the proceeding continued. Attorney Louis Gage, Jr. was retained. January 31, 1967, the defendant and Mr. Gage appeared in court. It is on this occasion that the defendant personally plead guilty to the charges. A finding of guilty was made upon the pleas thus entered and the court ordered a pre-sentence investigation.

February 1, 1967, Attorney Cleland P. Fisher was substituted as attorney of record for Mr. Gage. Between the date he was retained and the date of sentencing, February 13, 1967, two motions for withdrawal were presented to the court and both of them were denied, the last denial occurring on the day of sentencing. Substantially the same assertions are made in support of both motions. It is claimed that due to Mr. Gage's brief interview with the defendant prior to entry of the guilty pleas, defendant had no opportunity to disclose certain material matters which might establish a defense. In denying the motions, the trial court relied upon Hawkins v. State (1965), 26 Wis.2d 443, 132 N.W.2d 545, and found that the pleas of guilty, voluntarily and understandingly made, constitute a waiver of non-jurisdictional defects and defenses, including claims of violations of constitutional rights prior to the plea. An examination of the transcript of the pre-plea proceedings supports the finding of the trial court that the pleas were voluntarily and understandingly made. The court further observed that Mr. Gage was an undisputedly competent, capable, experienced and conscientious counsel. In neither of these motions for withdrawal is there any allegation that retained counsel's assistance was ineffective.

In State v. Reppin (June 6, 1967), 35 Wis.2d 377, 151 N.W.2d 9, this court adopted the 'manifest injustice' test with respect to the withdrawal of guilty pleas. The standards to be used in considering the 'manifest injustice' test are set forth in detail in Reppin, supra, at page 385, 151 N.W.2d 9.

On August 10, 1967, a third motion for leave to withdraw was filed. The motion was supported by affidavits from attorneys Fisher, Smith, Gage and and the defendant. The thrust of this motion was to allege grounds sufficient to establish manifest injustice under State v. Reppin. In answer to the motion and affidavits, the state filed affidavits of Robert Ruth, District Attorney of Rock County, and Attorney Gage.

At this stage, the trial judge disqualified himself and Judge Walsh was assigned to hear the third motion for withdrawal.

Ordinarily the question of withdrawal of a guilty plea is addressed to the discretion of the trial court. The only exception to this rule is where the defendant establishes a denial of a relevant constitutional right. Under that situation, withdrawal is a matter of right. Creighbaum

The defendant has the burden of showing adequate grounds for withdrawal and must establish such grounds by clear and convincing evidence. State v. Reppin, supra, 35 Wis.2d p. 385, 151 N.W.2d 9.

Willing now contends he was denied the right to effective assistance of counsel. To establish this claim, the defendant must show that the representation was no inadequate and of such low competence that it amounted to no representation at all. Pulaski v. State (1964), 23 Wis.2d 138, 148, 126 N.W.2d 625, cert. den., 379 U.S. 862, 85 S.Ct. 124, 13 L.Ed.2d 65; Eskra v. State (1965), 29 Wis.2d 212, 223, 138 N.W.2d 173; Rivera v. United States (9th Cir. 1963), 318 F.2d 606, 608.

The record discloses Attorney Louis Gage, Jr., has been practicing law in Rock county for many years; he was a member of Coif; and he had previously counseled defendant on legal matters as well as nonlegal matters. Before the plea was entered, retained counsel...