United States v. Burke

• Decision Date: 20 June 1967
• Docket Number: No. 16020.,16020.
• Citation: 379 F.2d 656
• Parties: UNITED STATES ex rel. Patrick J. O'NEILL, Petitioner-Appellant, v. John C. BURKE, Warden, Wisconsin State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

379 F.2d 656 (1967)

UNITED STATES ex rel. Patrick J. O'NEILL, Petitioner-Appellant, v. John C. BURKE, Warden, Wisconsin State Prison, Respondent-Appellee.

No. 16020.

United States Court of Appeals Seventh Circuit.

June 20, 1967.

John E. Coons, Chicago, Ill., for appellant.

Bronson C. LaFollette, Atty. Gen., Thomas A. Lockyear, Asst. to Atty. Gen., Madison, Wis., William A. Platz, Asst. Atty. Gen., Madison, Wis., for appellee.

Before CASTLE, SWYGERT and CUMMINGS, Circuit Judges.

CUMMINGS, Circuit Judge.

Petitioner has appealed from an order denying his petition for habeas corpus. The District Court required the respondent to file an answer to the petition. Because the petitioner had supposedly exhausted his state remedies and apparently believing the state proceedings to be inadequate, the District Court ordered an evidentiary hearing in accordance with Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770.

At the evidentiary hearing, the testimony disclosed that petitioner is an inmate of the Wisconsin State Prison in Waupun, Wisconsin, serving sentences imposed by the County Court, Racine County, Wisconsin, upon petitioner's plea of guilty to 11 counts of burglary.

In support of reversal, petitioner charges that for various reasons his guilty plea was accepted in violation of the due process clause of the Fourteenth Amendment. Petitioner also charges that the state violated the due process clause by not supplying "mitigating" evidence to the sentencing court. The pertinent facts will be discussed under these contested issues.

Validity of Guilty Plea

Petitioner first asserts that the guilty plea must be invalidated because he did not understand the risks. It is well settled that a guilty plea normally operates to waive all objections unless the plea was not entered understandingly and voluntarily. United States ex rel. Staples v. Pate, 332 F.2d 531, 533 (7th Cir. 1964), certiorari denied, Staples v. People of State of Illinois, 358 U.S. 851, 79 S.Ct. 78, 3 L.Ed.2d 84; United States v. French, 274 F.2d 297, 299 (7th Cir. 1960). It seems true that petitioner and his then counsel hoped the trial court would commit petitioner to the Central State Hospital for psychiatric treatment. However, it developed that the Wisconsin statutes do not permit such commitment here.¹ In any event, after a prisoner's reception at the Wisconsin State Penitentiary, he would be sent to Central State Hospital if he needed psychiatric care. In fact petitioner was sent there subsequent to being sentenced on these offenses. The record does not show that petitioner would not have filed a guilty plea if he were aware that the trial judge would have to sentence him to the State penitentiary. No state official led petitioner to expect only hospitalization. No such reservations were expressed by petitioner upon arraignment, and his counsel had previously explained the seriousness of the charges to him. He knew he could receive a ten-year prison term upon each of the eleven counts. We agree with the District Court that the record does not show the guilty plea was conditioned on commitment to the Central State Hospital.

Petitioner asserts that his guilty plea was induced by Officer Christianson's "promise" that the charges would be "consolidated". Christianson testified that the word "consolidated" would only be used by him if some burglaries had been committed in the County of Racine and others in another county, thus permitting consolidation pursuant to Section 956.01(13) of the Wisconsin statutes. The charges against defendant were for burglaries committed in Racine County, and no question of consolidation of crimes committed in several counties was involved. Before petitioner was sentenced, the trial judge ascertained that no promises or representations of leniency or preferential treatment had been made, apart from an agreement to issue no more warrants. Petitioner does not contend that this agreement was broken. His pre-sentence reference to this one agreement indicates there were no others, and the District Court obviously did not believe petitioner's testimony that he was told he would receive only a 10-year sentence. Apart from his discredited evidence, there is nothing in the record to show that his guilty plea was induced by a promise of such sentence.

Petitioner next argues that his guilty plea was invalid because he had been detained for a week without counsel before confessing to these burglaries. Petitioner was arrested early in the morning on November 22, 1961, and was advised of his right to remain silent and of his right to counsel. He did not request counsel. His November 29 confession was prompted by the post searchwarrant discovery of a safe buried in a relative's back yard. This safe had been taken from Christiano's Grocery in Racine, Wisconsin. After discovery of the safe, petitioner requested that a Racine police officer interview him. Thereupon, petitioner admitted to 11 burglaries in the Racine area including that at Christiano's Grocery. We have examined the transcript of the evidentiary hearing on this petition for habeas corpus and have ascertained that petitioner's claim of superinterrogation was repeatedly denied by other witnesses. The trial judge decided that their testimony was credible and that petitioner's was not. Furthermore, on December 1, 1961, petitioner's father and his sister Peggy Echeverria employed C. James Heft as his counsel. Instead of repudiating his confession, petitioner at once admitted his guilt to Mr. Heft. Petitioner was represented by retained counsel when his guilty plea was entered on December 5.

Although petitioner seemingly now questions the validity of his confession, the judgment on his guilty plea is not rendered invalid even if the confession were made under circumstances that might have rendered it inadmissible if he had pleaded not guilty and had gone to trial. This is because a judgment and sentence after a plea of guilty are based solely upon that plea. Therefore, an illegally obtained confession cannot ordinarily be made the basis for a collateral attack upon a judgment of conviction entered upon that guilty plea. United States v. French, 274 F.2d 297, 299 (7th Cir. 1960); Busby v. Holman, 356 F.2d 75, 77-78 (5th Cir. 1966).²

Petitioner next contends that the trial court was without jurisdiction, on the ground that petitioner pleaded guilty to an invalid information. Even though the information was dated December 5, 1961, the same day as the hearing at which petitioner pleaded guilty, his counsel, Mr. Heft, testified that on December 1, he had examined the District Attorney's file concerning petitioner and thereafter discussed all the charges with petitioner, who acknowledged his guilt. Heft also testified that on December 5, before the guilty...