Thiesen v. State, 76-562-CR

• Decision Date: 09 January 1979
• Docket Number: No. 76-562-CR,76-562-CR
• Court: Wisconsin Supreme Court
• Parties: Richard G. THIESEN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Page 314

273 N.W.2d 314

86 Wis.2d 562

Richard G. THIESEN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 76-562-CR.

Supreme Court of Wisconsin.

Argued Oct. 3, 1978.

Decided Jan. 9, 1979.

Howard B. Eisenberg, State Public Defender, for plaintiff in error.

Betty R. Brown, Asst. Atty. Gen. (argued), for defendant in error; Bronson C. La Follette, Atty. Gen., on brief.

ABRAHAMSON, Justice.

Richard G. Thiesen, the defendant, seeks to review a judgment of conviction of possession of heroin entered September 30, 1974, and an order entered January 7, 1977, denying his post-conviction motion. Defendant claims that the conviction should be reversed and that his post-conviction motion should be granted because his conviction is based on evidence which should have been suppressed. We affirm the judgment and vacate the order.

While driving a van in the city of Racine at about 12-45 A.M. on March 1, 1974, Richard G. Thiesen was arrested for operating a motor vehicle without a license and for possession of marijuana. Thiesen was taken to the police station and, during a custodial search of his person, the police found a packet of heroin in one of his pockets. At a prior trial Thiesen was convicted of the marijuana charge. In the case at bar Thiesen was convicted of possession of heroin and sentenced to not more than one year imprisonment. The sentence has been served, and the defendant has been discharged.

We address ourselves first to defendant's appeal from his conviction and then to his appeal from the denial of his post-conviction motion.

Thiesen seeks to overturn his conviction on the ground that the packet of heroin was seized after an illegal stop, arrest and search and should not have been admitted as evidence. The state contends that Thiesen waived the right to challenge the admissibility of the heroin. The state asserts that this court should not review the asserted claim of error because Thiesen did not file a motion for a new trial within the time limit prescribed by sec. 974.02(1), Stats. ¹

This court has frequently said that if the alleged error is one which the trial court could have corrected by granting a new trial, a motion for a new trial is necessary before the claimed error will be reviewed by this court as a matter of right. Claybrooks v. State, 50 Wis.2d 87, 89, 183 N.W.2d 143 (1971); Schwamb v. State, 46 Wis.2d 1, 9, 173 N.W.2d 666 (1970).

Thiesen claims that he did not waive his right to have the evidence suppressed. He asserts that his trial attorney failed to move for a new trial and that this failure should not be imputed to him.

This case typifies the conflict between maintaining the procedural requirements for the presentation of substantive issues and ensuring defendants their constitutional protections. ²

As a general rule, the failure to follow a procedural rule results in a waiver of the right to raise the question in issue. A motion for a new trial allows the trial court to correct errors. We believe that it is reasonable and important for orderly procedure to require a motion for a new trial as a condition of preserving an error on appeal as of right. The United States Supreme Court has recognized that a state may validly insist upon compliance with a procedural rule if the rule serves a legitimate state purpose. Henry v. Mississippi, 379 U.S. 443, 447, 451-452, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965).

However certain constitutional rights may be waived only by the defendant himself. Waiver of a constitutional right traditionally requires intentional relinquishment of a known right. State v. Harper, 57 Wis.2d 543, 548, 205 N.W.2d 1 (1972). See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); State v. McDonald, 50 Wis.2d 534, 184 N.W.2d 886 (1971); Keller v. State, 75 Wis.2d 502, 249 N.W.2d 773 (1977). This court has applied the standard of personal and intentional relinquishment of a known right to the defendant's right to counsel and right to a jury trial. State v. Harper, 57 Wis.2d at 550, 205 N.W.2d 1; Keller v. State, 75 Wis.2d at 509.

Thiesen argues that in this case a personal and intentional relinquishment of his right to challenge the admissibility of evidence seized in violation of his Wisconsin and federal constitutional rights is required before he loses this right.

The trial court record is of necessity silent as to why Thiesen failed to preserve the challenge to the evidence by moving for a new trial. After the judgment of conviction is entered and within the applicable ninety-day period there is no opportunity for the trial court to determine and make a record of defendant's participation, knowledge and understanding of his waiver of his right to make a motion for a new trial. Nor does Thiesen argue that we should require the trial court to make a record of the reasons the defendant is not making a motion for a new trial.

Defendant's mere failure to move for a new trial cannot be construed to mean that a non-intentional waiver has occurred. Thiesen must ground his failure to move for a new trial on his ignorance of his rights to challenge the conviction on the basis of the "illegal" evidence. He has the burden of coming forward with an explanation, which in this case lies peculiarly within his knowledge, that the waiver was unintentional and unknowing. Thiesen has failed to put forth any such explanation.

Indeed Thiesen cannot claim he did not know of his post-conviction rights. The trial court instructed Thiesen and his counsel that Thiesen had ninety days to request the trial court to set aside the conviction and grant a new trial, that Thiesen had the right to appeal to the Supreme Court and that post-trial motions may be necessary to preserve the right to review claimed errors, and that trial counsel had a continuing obligation to represent Thiesen in post-trial motions and in his decision whether to take an appeal until appellate counsel is appointed. The trial court, following our directions in Whitmore v. State, 56 Wis.2d 706, 719-720, 203 N.W.2d 56 (1973), instructed Thiesen and counsel as follows and gave them a copy of these instructions:

" . . . Within 90 days from the date of entry of judgment in this case, you may exercise the following rights with respect to your conviction and sentence. As to new trial, the grounds for which you seek review are those provided by Wisconsin Statutes Section 974.02 you may request the trial court to set aside your conviction and grant a new trial. This means you may be entitled to a new trial if granting is necessary in the interests of justice, or if any of the following defects arose at your trial or conviction. There is error in the conduct of the trial. There is error in the jury instructions. The judgment of conviction is contrary to law. If your motion for a new trial is not made within 90 days from the date of entry of judgment in this case, you may lose altogether your right to raise any of the defects just mentioned. If the grounds upon which you seek review are not within Wisconsin Statute 974.02 you have a right to appeal from the judgment to the Wisconsin Supreme Court, or to secure a writ of error from that court. Whether you are seeking a new trial, a writ of error, or an appeal of your conviction or sentence or both, you may proceed personally if you so desire. If you follow either the appeal or writ of error procedure described, you may write a letter to the Clerk of the Wisconsin Supreme Court at the State Capitol Building, Madison, Wisconsin setting forth: (1) the Court which the judgment was sentenced. (2) the date thereof. (3) the offense or offenses for which you were convicted. (4) whether you wish such judgment reviewed by the Wisconsin Supreme Court. (5) whether you do or do not wish the Court to appoint counsel to represent you in such review. Counsel and the defendant are advised counsel has the duty to continue his representation of you until a decision whether to take an appeal is made, and until such time as appellate counsel is appointed by the Wisconsin Supreme Court. This continuing duty to represent you includes the obligation of trial counsel to address post trial motions to this court which may be appropriate to correct any error which it is claimed may have occurred during the trial and which may be necessary to preserve the right to review such claimed errors on appeal. I am giving you a copy of these instructions." (Emphasis added.)

Our purpose in requiring the trial court to inform the defendant of his rights after conviction and to inform trial counsel of his or her obligation to continue representation during the post-conviction stage of the proceedings was to "eliminate the unwitting waiver of defendants who, through no fault of their own, have foregone the right to address post-trial motions to the trial court." Whitmore v. State, 56 Wis.2d 706, 719, 720, 203 N.W.2d 56, 63 (1973). When the trial court has given the Whitmore instructions we must assume, barring a showing of exceptional circumstances, that if a motion for a new trial is not made, the defendant has knowingly waived his right. Any other assumption makes the Whitmore instructions meaningless.

Thiesen's sole explanation for the failure to move for a new trial is that his trial attorney was obligated by Whitmore v. State, 56 Wis.2d 706, 203 N.W.2d 56 (1973), to make a motion for a new trial and that his attorney's dereliction in that respect does not constitute a waiver on his part. But Whitmore did not obligate Thiesen's counsel to move for a new trial. Counsel is obligated to move for a new trial only if the motion is warranted under the circumstances. Thiesen does not claim that his attorney was remiss with respect to any of the conduct that Whitmore does require. At no time has Thiesen asserted that his trial counsel did not continue his representation until the decision of whether to take an appeal was made and appellate counsel appointed. Thiesen...