Wells v. State

• Decision Date: 26 November 1968
• Citation: 40 Wis.2d 724,162 N.W.2d 634
• Parties: Robert Bruce WELLS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 634

162 N.W.2d 634

40 Wis.2d 724

Robert Bruce WELLS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Nov. 26, 1968.

Thomas W. Bertz, Madison, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, for defendant in error.

BEILFUSS, Justice.

The defendant, in this court, has not pursued his claim that the evidence is insufficient to sustain the conviction. In any event, our review of the record convinces us that the evidence, clearly, is sufficient to sustain the conviction. He does adhere to his contention that the prosecutor's reference to the repeater charge at the voir dire was prejudicial error.

The first issue presented by defendant is whether an information which charges the repeater statute is presumptively void when the state fails to include an allegation that the defendant was either represented by counsel or had validly waived counsel at the prior trial.

It has been settled by the United States Supreme Court that a conviction in which the defendant was denied counsel or in which the defendant was not represented by counsel but had not waived the right to counsel would be void under the repeater statute. Burgett v. Texas (1967), 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319. In Burgett, relied on heavily by plaintiff in error, the defendant was charged with attempted murder. Additionally charged, under the Texas recidivist statutes, were a Texas conviction and three Tennessee convictions for burglary. There was nothing in the certified records of two of the convictions to suggest that the defendant had validly waived counsel. At the trial the state offered evidence of the conviction which was objected to by counsel on the ground that some of the judgments on their faces showed that defendant had not been represented by counsel. After a hearing, the trial court struck the Texas and one Tennessee conviction because there was record evidence that no waiver had occurred. The other two charges were allowed, over objection, to remain. As to these convictions there was no evidence of waiver and, apparently, the trial court decided that in such cases it is presumed that counsel was validly waived.

In reversing, the United States Supreme Court, relying on Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, stated:

'In this case the certified records of the Tennessee conviction on their face raise a presumption that petitioner was denied his right to counsel in the Tennessee proceeding, and therefore that his conviction was void. Presuming waiver of counsel from a silent record is impermissible. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526) is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.

'The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial and we are unable to say that the instructions to disregard it made the constitutional error 'harmless beyond a reasonable doubt' within the meaning of Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.' Burgett v. Texas, supra, pp. 114, 115, 88 S.Ct. pp. 261, 262.

The instant case is distinguishable from Burgett. First, the state, here, made no attempt to offer evidence of the prior conviction. Second, the defendant, Wells, admitted the previous conviction. And third, there was no objection to the validity of the prior conviction on the ground that the record did not support the conclusion that the waiver was valid.

Defendant attempts to have an allegation, that at the prior conviction the defendant was present with or specifically waived counsel, made an essential element in the information. Nothing in sec. 939.62, Stats., suggests such an interpretation. Furthermore, the repeater statute does not define an offense but is treated as part of the criminal law regulating the sentence and judgment in cases where persons are guilty of successive repeated offenses. Howard v. State (1909), 139 Wis. 529, 121 N.W. 133.

The state argues that it is not necessary to indulge in the Burgett presumption because Wisconsin has, for some one hundred years ² and long before the Gideon case, recognized the right to counsel. Sec. 957.26(1), Stats. Thus, where the previous conviction took place in this state, we are aware that the trial court was under a statutory obligation to advise the accused of his right to counsel and to provide counsel in the case of indigency. We do presume the trial court complied with the statute. However, the question of whether the accused validly waived his right to counsel can be raised. This becomes especially important in cases where the accused is of young age or low intelligence. It appears that the issue of whether or not the record supports a finding that the defendant's right to counsel had been violated would be a matter for the defense to set forth, presumably by a motion to dismiss the allegation. ³ The trial court could then proceed with a determination of the matter. Such a procedure would fairly protect the rights of the accused.

The next question is whether the comment by the state on voir dire, either by way of statement or by way of reading the entire information, was prejudicial. The answer must be in the affirmative. ^3a In Wisconsin, when the prior conviction is admitted, the trial court may, in its discretion, increase the length of the sentence. In State v. Meyer (1951), 258 Wis. 326, 338, 339, 46 N.W.2d 341, 346, this court said:

"* * * This provision also suggests that the Legislature intended to give the accused an opportunity to avail himself of the right afforded by the law which, except in certain cases, excludes evidence of other offenses from being submitted to the jury as proof of the guilt of the accused of the specific offense for which he is on trial. It is beyond controversy that proof of former sentences of the accused must necessarily prejudice the minds of the jurors against his interest when trying him for the offense with which he is charged. It is therefore a reasonable inference from the legislative regulation giving the accused the privilege of admitting such former sentences on the trial that it was intended that evidence thereof should not be received after such admission, and that there was no issue respecting such allegations for submission to the jury. Though this practice and procedure is not formally inserted in the statute, if follows by necessary implication in order to secure to the accused the rights manifestly contemplated by it.'

'In so considering the matter, Mr. Justice SIEBECKER said (139 Wis. p. 534, 121 N.W. p. 135): 'We are of opinion that no evidence shall be received nor comment to the jury be permitted in cases wherein former convictions and sentences, as embraced in sections 4736--4738, St.1898, are alleged when the accused admits the truth thereof on the trial.''

The contention of the defendant that he was prejudiced when the state on cross-examination asked if he had been convicted of previous offenses is without merit. When the defendant answered 'Yes, sir.' the state went...