Triplett v. State

• Decision Date: 02 June 1971
• Docket Number: No. S,S
• Citation: Triplett v. State, 187 N.W.2d 318, 51 Wis.2d 549 (Wis. 1971)
• Parties: John TRIPLETT, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 176.
• Court: Wisconsin Supreme Court

Page 318

187 N.W.2d 318

51 Wis.2d 549

John TRIPLETT, Plaintiff in Error, v.STATE of Wisconsin, Defendant in Error.

No. State 176.

Supreme Court of Wisconsin.

June 2, 1971.

On March 29, 1969, a warrant was issued against the plaintiff in error, John Triplett(hereinafter defendant), charging him with attempted first-degree murder (secs. 940.01and939.32, Stats.).The defendant was represented by counsel at a preliminary hearing and was bound over to the circuit court for trial.An information filed on June 9, 1969, charged the defendant with attempted first-degree murder.

On January 5, 1970, leave of court was obtained to amend the information to charge defendant with endangering safety by conduct regardless of life (sec. 941.30, Stats.).Defendant was arraigned upon the amended charge and entered a plea of guilty.A hearing on the plea was held, an evidentiary basis was established, and judgment of conviction was entered on the plea.

Following a presentence investigation, on February 2, 1970, and after defendant had been extended the right of allocution, he was sentenced to an indeterminate term not to exceed three years in the Wisconsin state prison.

On May 26, 1970, this court appointed Attorney James Ward Rector, Jr., to represent the defendant in postconviction proceedings.Attorney Rector filed a no merit report.On November 25, 1970, this court, in an Unpublished Opinion, accepted the no merit report and determined from the report and its own independent review of the record that defendant's complaints were wholly frivolous and without arguable merit and relieved Attorney Rector from any further represention of the defendant.

The defendant indicated a desire to proceed with the writ of error heretofore issued and appears herein pro se.

John Triplett, pro se.

Robert W. Warren, Atty. Gen., William A. Platz and Robert D. Martinson, Asst. Attys.Gen., Madison, E. Michael McCann, Dist. Atty., Milwaukee County, Milwaukee, for defendant in error.

BEILFUSS, Justice.

The sole issue presented is whether the trial court erred when imposing sentence by considering, among other matters, that portion of the presentence report listing defendant's juvenile adjudication when there was no indication that he was represented by counsel in the juvenile court proceedings.

The defendant challenges the sentencing procedure followed by the trial court.Specifically, he objects to the inclusion of his juvenile record in the presentence report, claiming that all of his juvenile adjudications were invalid under In re Gault(1967), 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, because he was not represented by counsel in the juvenile court proceedings.The reference to defendant's juvenile record during the sentencing hearing was as follows:

'THE COURT: Step forward Mr. Triplett.

'(Defendant before the bench with his counsel.)

'THE COURT: The Court has heretofore found you guilty of the offense charged in the information.Is there anything you want to say why sentence should not be pronounced or before sentence is pronounced?

'THE DEFENDANT: No.

'THE COURT: You have a long record of minor offenses, juvenile record and an adult record involving many cases.This suggests a disregard of the law, a disregard of your obligations as a citizen.I can't overlook the fact that on the day of this trouble in this tavern you left the tavern went someplace and got a gun and came back.Can you explain that?

'THE DEFENDANT: Yes, I didn't go anywhere to get a gun.I went to see about getting a rule book to show--'

The rest of the questioning dealt with defendant's explanation of the facts and nothing more was said about the presentence report.

Assuming that the presentence report did include juvenile commitments which were invalid pursuant to the Gault decision, this question was explicitly answered by the recent decision in Neely v. State(1970), 47 Wis.2d 330, 177 N.W.2d 79, wherein this court said at pp. 334, 335, 336, 177 N.W.2d at p. 81:

'* * * Since, however, the challenge goes to the basic purpose and permitted procedures in assembling presentence reports, we will deal with the issue as if the presentence report had contained a record of commitments as well as arrests.

'While the sentencing stage in the criminal process is a critical stage in the proceedings, it is to be kept in mind that the use of presentence reports is intended to assist the sentencing court in determining the kind and extent of punishment to be imposed in the particular case within limits fixed by law.The sentencing court has a twofold responsibility: To the individual found guilty and to the society which criminal laws are intended to protect.Not only is all relevant information to be brought to the attention of the sentencing judge, but considerable latitude is to be permitted trial judges in obtaining and considering all...