Walberg v. State
| Citation | 243 N.W.2d 190,73 Wis.2d 448 |
| Decision Date | 30 June 1976 |
| Docket Number | Nos. 75--284--CR and 75--333--CR,s. 75--284--CR and 75--333--CR |
| Parties | Robert Edwin WALBERG, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. Francis J. DEISLER, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. |
| Court | United States State Supreme Court of Wisconsin |
Plaintiff in error, Robert Edwin Walberg, was convicted in the circuit court for Milwaukee county on May 29, 1973, of two counts of burglary following a guilty plea. He was sentenced to indeterminate terms not to exceed 10 years in the Wisconsin state prisons, the terms to run concurrently. A postconviction motion to vacate the judgment of conviction was filed in the circuit court on April 21, 1975. By order dated May 12, 1975, that motion was denied.
Plaintiff in error, Francis J. Deisler, was convicted in the circuit court for Milwaukee county on November 8, 1973, of armed robbery and rape following pleas of guilty. He was sentenced to an indeterminate term of not more than 15 years on the armed robbery charge to run concurrently with his commitment under the Sex Crimes Act following the rape conviction. A postconviction motion to vacate the judgment of conviction was filed in the circuit court on April 21, 1975. By order dated July 7, 1975, that motion was denied.
Because the postconviction motion in each case raises substantially the same question, this court, on September 8, 1975, granted a request to consolidate the cases for review purposes.
Howard B. Eisenberg, State Public Defender (argued), on brief, for plaintiffs-in-error.
Betty R. Brown, Asst. Atty. Gen. (argued), Bronson C. La Follette, Atty. Gen., on brief, for defendant-in-error.
The writs of error in these cases are directed to the orders denying the defendants' motions for postconviction relief. By those motions each defendant has asserted that the person who signed the arrest warrants, under the authority of which they were brought before the court on the stated charges, had no authority to do so. They seek relief in the form of an order vacating the judgments of conviction on the ground that probable cause for the issuance of those warrants was not found by a 'neutral and detached magistrate' as required by the Fourth Amendment.
The record in the case involving the defendant Walberg reveals that a criminal complaint charging Walberg with burglary was issued on October 20, 1972. On the basis of the information contained in that complaint and in an attached affidavit, John J. Kenney, purporting to act as a court commissioner, determined that probable cause existed for the issuance of a warrant for the arrest of Walberg. Such a warrant, also dated October 20, 1972, is a part of the record and is signed by John J. Kenney, 'Court Commissioner as Judge.'
The arrest warrant was executed on October 24, 1972 and, on the same day, the defendant appeared in the circuit court for Milwaukee county where probable cause was found to hold him for further proceedings. On November 3, 1972, a preliminary examination was conducted in county court and Walberg was ordered held for trial. Walberg's initial plea of not guilty, entered on November 17, 1972, was subsequently changed on May 29, 1973, to guilty. A judgment of conviction was entered on that plea and Walberg was sentenced to concurrent, indeterminate terms not to exceed 10 years in the Wisconsin state prisons. The record shows that at all relevant times Walberg was represented by counsel.
The record in the case involving the defendant Deisler shows that a criminal complaint charging Deisler with armed robbery was issued on January 11, 1973. That complaint was sworn to before John J. Kenney, acting as a court commissioner, and contains a finding by Kenney that 'there is probable cause for the issuance of a warrant in the above matter.' No warrant authorizing Deisler's arrest appears as a part of the record here. However, the record reveals that Deisler appeared in court the day after the issuance of the warrant was authorized. For the purposes of this opinion it will be assumed that a warrant was, in fact, issued and executed under Kenney's signature.
At the initial appearance in circuit court probable cause was found, on the basis of the complaint, to hold Deisler for further proceedings. On January 16, 1973, Deisler, through counsel, challenged the complaint on the ground that the reliability of an informant had not been sufficiently established. That motion was denied. The case was assigned to the county court for a preliminary examination and Deisler was ordered held for trial. He initially entered pleas of not guilty and not guilty by reason of mental disease or defect to the original charge of armed robbery and the subsequent charge of rape. However, those pleas were subsequently changed to guilty on September 6, 1973. On November 8, 1973, Deisler was convicted on both charges and sentenced to an indeterminate term of 15 years on the armed robbery charge to run concurrently with his commitment under the Sex Crimes Act on the rape charge. Deisler was, at all times, represented by counsel.
The motions for postconviction relief on the part of both defendants contain substantially identical allegations. Those allegations are to the effect that the defendants had investigated the records in the circuit court for Milwaukee county with respect to the authority of John J. Kenney to act as a court commissioner or magistrate; that Kenney's term as court commissioner had expired at the time the arrest warrants were issued; and that, as a result:
'The issuance of the arrest warrant was authorized by a person who had no legal authority to do so, thereby constituting a denial of my right to have a neutral and detached magistrate determine the probable cause for the issuance of such warrant, and further denying my right to due process of law, and further depriving this Court of jurisdiction to proceed herein.'
Attached to each motion for postconviction relief are three exhibits. The first is a copy of Kenney's appointment by Circuit Judge William F. Shaughnessy on August 28, 1961, to serve as a court commissioner for Milwaukee county. That appointment was pursuant to sec. 252.14(3), Stats., which establishes the eligibility of '(a)ny former judge of an inferior court of record of this state' for appointment as a court commissioner. Under sec. 252.14(1), the term of a court commissioner 'shall continue until the expiration of the term of the judge who appointed him and until the successor of such commissioner is appointed and qualified.' On the face of Exhibit 1 is the notation that Judge Shaughnessy left office in 1966.
The second exhibit appears to be a response by the Clerk of Circuit Court for Milwaukee County to the defendants' request for the records regarding Kenney's status as a court commissioner. According to the information on that exhibit, in addition to his appointment by Judge Shaughnessy in 1961, Kenney was appointed Temporary Assistant Family Court Commissioner on January 11, 1966, by Circuit Judges Robert W. Hansen and Leander J. Foley, Jr.
Exhibit 3 is a copy of the latter appointment pursuant to sec. 247.13(4), Stats. 1 The second page of the exhibit contains the signatures of all the judges of the circuit court approving Kenney's appointment, and provides, additionally:
'In accordance with Section 247.13(2) Wis.Stats. we further here delegate the additional duties to the said John J. Kenney to act as magistrate in and for Milwaukee County.'
In their brief urging a reversal of the orders denying the motions for postconviction relief, the defendants argue that the record clearly shows that Kenney had no authority to issue arrest warrants at the times in question. Renewing their arguments before the circuit court, the defendants contend that they were denied due process of law because the probable cause to arrest was not found by a neutral and detached magistrate. Finally, the defendants argue that the illegality of the arrest deprived the trial court of jurisdiction to proceed. The defendants contend the judgments of conviction should be vacated.
The state, on the other hand, argues that both defendants have failed to prove that John J. Kenney was without authority to issue arrest warrants. Even if the defendants were arrested pursuant to warrants issued by an unauthorized person, the state contends, this objection has been waived because it was not raised prior to the entry of pleas and cannot be raised for the first time by a motion for postconviction relief. In any event, the state concludes, the illegality of the arrest provides no basis for vacating the judgments of conviction.
The state appears to concede that if the arrest warrants were issued by a person who had no authority to do so, the arrests were illegal. In State ex rel. White v. Simpson (1965), 28 Wis.2d 590, 597--599, 137 N.W.2d 391, 394, this court held it to be a constitutional requirement that probable cause for the issuance of an arrest warrant be determined by a neutral and detached magistrate. The purpose of the rule, mandated by the Fourth Amendment and applied to the states through the Fourteenth Amendment, is to 'interpose the impartial judgment of a judicial officer between the citizen and the police and also between the citizen and the prosecutor, so that an individual may be secure from an improper search or an improper arrest.' It is clear, therefore, that the complaint or other affidavit upon which is based a request for a search or arrest warrant must be made, under oath, before a magistrate or other person authorized to issue such warrants. See: State ex rel. Pflanz v. County Court (1967), 36 Wis.2d 550, 153 N.W.2d 559.
The defendants contend that because their original arrests were arguably illegal under the Fourth Amendment their subsequent convictions, albeit pursuant to guilty pleas, constituted a denial of due process, and that because a...
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