Van Voorhis v. State

• Decision Date: 05 January 1965
• Citation: 26 Wis.2d 217,131 N.W.2d 833
• Parties: Cornelius VAN VOORHIS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 833

131 N.W.2d 833

26 Wis.2d 217

Cornelius VAN VOORHIS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Jan. 5, 1965.

Edward R. Bollenbeck, Appleton, for plaintiff in error.

George Thompson, Atty. Gen., William A. Platz, Asst. Atty. Gen., Betty R. Brown, Asst. Atty. Gen., Madison, and Nick F. Schaefer, Dist. Atty., Appleton, for defendant in crror.

FAIRCHILD, Justice.

Sec. 957.26(2), Stats., requires that upon arraignment, the court shall advise any person charged with felony of his right to counsel and that if he is indigent the court will appoint counsel at his request. A record of the advice and reply must be made in either the docket or transcript.

There is a transcript in this case, but it shows that the court failed to advise Van Voorhis that counsel would be furnished to him, if indigent, at his request. The lack of compliance with the statute is clear. We have, however, suggested in an earlier decision that a defendant cannot raise this error on appeal or writ of error as a matter of right unless he has first raised it in the trial court. ¹ We now so hold. Statements in previous cases assuming that on appeal reversal would be automatic are withdrawn. ²

The basic question presented by the instant case is whether, on application to the trial court, the trial court is confined to the record and must grant relief where the statute was not fulfilled or whether the trial court may consider additional evidence in order to determine whether, in fact, the defendant had sufficient knowledge with respect to his right to counsel and the furnishing of counsel to indigents so that the failure to advise him as required by the statute was immaterial.

Where a convicted and imprisoned defendant who was not represented by counsel applies to this court for a writ of habeas corpus on the ground that he did not intelligently waive his right to counsel the question whether, in fact, he sufficiently understood his rights is explored. On such inquiry his waiver may be found not to have been intelligent even though the record discloses compliance with sec. 957.26(2), Stats. ³ Or it may be found to have been intelligent even though this statute was not fulfilled. ⁴

A convicted defendant may make the same claim in an application to the trial court for a new trial or for leave to withdraw a plea of guilty if made within one year. ⁵ It is logical that the same scope of inquiry would be permitted.

Sec 957.26(2), Stats., was enacted in an attempt to have advice concerning right to counsel given as a matter of course and a record made thereof. Where, in a particular case this was not done, but it can be shown that the defendant knew of his right to counsel without such advice by the court, there seems to be little reason for setting aside the conviction.

It therefore seems to us reasonable and logical to permit the trial court to inquire into defendant's knowledge of his rights when he applies for relief upon the ground that the court failed to advise him. Since the statutory policy is that the advice be given and recorded, we consider that the state should carry the burden of proof (risk of non-persuasion) in proving by clear and convincing evidence that the advice was unnecessary in the particular case.

Several fundamental propositions may be summarized as follows: A convicted defendant who was not represented by counsel, and who claims that he did not intelligently waive counsel, has an adequate remedy by application to the trial court within one year after trial upon a plea of not guilty or after a finding upon a plea of guilty. Where the record shows compliance with sec. 957.26(2), Stats., and an apparent waiver of counsel, the burden of proof is upon defendant to show that his waiver was not intelligent; where the record does not show such compliance, the burden is upon the state to show that waiver was intelligent. In such inquiry, neither party is limited to the facts of record prior to conviction, but may offer additional evidence relevant to the knowledge and understanding of defendant. A claim that defendant was not properly advised cannot be raised as a matter of right on review of the judgment unless the claim was raised in the trial court before judgment. If not so raised before judgment, the claim can be raised here by appeal from the order of the trial court, after judgment, denying an application on that ground for a new trial or leave to withdraw a plea. Although an application for leave to withdraw a plea is ordinarily addressed to the discretion of the court ⁶ such withdrawal would be a matter of right if the applicant established in fact a denial of a relevant constitutional right, such as right to counsel. It should also be observed that although sec. 957.26(2), Stats., applies by its terms only to one charged with a felony, similar problems now may arise with respect to one charged with misdemeanors who is exposed to the possibility of a substantial sentence of imprisonment. ⁷

In the instant case, Van Voorhis requested a writ of error to review the judgments. He had not raised his claim with respect to right to counsel before the judgments, and in accordance with the propositions just stated we would affirm. It happens, however, that the record of proceeding after the judgments has also been forwarded to us and the state, as defendant in error, has relied upon this portion of the record in arguing that the omission of advice concerning the furnishing of counsel was immaterial. The fact that Van Voorhis applied to the trial court is not before us unless we take notice of this portion of the record. Thus Van Voorhis' position will not be impaired by our...