White v. State
| Decision Date | 31 October 1978 |
| Docket Number | No. 76-396-CR,76-396-CR |
| Parties | Gary L. WHITE, Plaintiff in error, v. STATE of Wisconsin, Defendant in error. |
| Court | Wisconsin Supreme Court |
Gary L. White, plaintiff in error, was convicted of felony theft, contrary to the provisions of sec. 943.20(1)(a), Stats., following a plea of guilty. He was sentenced to an indeterminate term of not more than two years' imprisonment. Writs of error issued to review the judgment of conviction and the order denying the motion to withdraw his guilty plea.
Howard B. Eisenberg, State Public Defender, submitted brief for plaintiff in error.
Bronson C. La Follette, Atty. Gen., and William L. Gansner, Asst. Atty. Gen., submitted brief for defendant in error.
White was charged with intentionally taking and carrying away a chain saw, of the value of $150, owned by Andrew Hauser, without the consent of Hauser and with the intent to deprive Hauser permanently of the possession of the property, contrary to sec. 943.20(1)(a), Stats. The offense is alleged to have occurred on July 14, 1975. On November 6, 1975, he was bound over for trial after a preliminary examination. The information was filed in circuit court and White plead not guilty. He subsequently withdrew his plea of not guilty, entered a plea of guilty and was sentenced.
White does not challenge his conviction for the actual theft of the chain saw. Rather, he contends that in accepting his plea of guilty the trial court did not establish a factual basis for the determination of the value of the chain saw. Thus, asserts White, the trial court failed to establish a factual basis to support his conviction of a felony and the imposition of a sentence pursuant to the provisions of sec. 943.20(3)(b), Stats.
The sixth standard set forth in Ernst 1 provides that the trial court shall determine:
6. That the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty. Id., at 674, 170 N.W.2d at 718.
This court has held that a failure of the trial court to establish a factual basis showing that the conduct which the defendant admits constitutes the offense charged and to which the defendant pleads, is evidence that a manifest injustice has occurred. Morones v. State, 61 Wis.2d 544, 552, 231 N.W.2d 31 (1973). 2
White was charged with violating sec. 943.20(1)(a), Stats.:
Different sentences may be imposed for this offense:
Value is defined in (2) (c):
Both, the complaint and the information, state, without explanation, that the saw had a value of $150. At the preliminary examination the owner testified that he purchased the saw new on March 9, 1974. He paid $190 in cash plus a trade-in allowance on an old saw of about $60. Edward Oesau, a tavern operator, ultimately purchased the saw from White. Oesau testified, at the preliminary examination, that White owed him $20 and offered to sell him the saw in payment of the debt plus $40 in cash. Oesau finally bought the saw for cancellation of the debt plus $20 in cash. At the conclusion of the examination the presiding judge stated, "I am sure that the value is in excess of $100."
At the arraignment when the guilty plea was accepted, the value of the saw was mentioned three times, once in the reading of the information, once in the judge's question to White what plea he wished to enter to the charge of theft of property valued at $150, and once by the judge in explaining the possible sentence for theft of goods valued at more than $100. No mention of the value of the saw was made in the prosecutor's testimony which was submitted to provide a factual basis for the plea.
At the hearing to withdraw the guilty plea, the trial court properly considered the record at the preliminary examination and arraignment and the proceedings then in court. Loop v. State, 65 Wis.2d 499, 222 N.W.2d 694 (1974). The trial judge, with commendable candor, acknowledged there was no testimony as to value of the saw at the time of theft, either at the preliminary examination or when the plea was accepted, and that he had no knowledge of the value of chain saws. These statements distinguish Peterson v. State, 54 Wis.2d 370, 195 N.W.2d 837 (1972), which is relied upon by the state. In Peterson this court held that the testimony that the defendant stole two new radar ranges provided a factual basis sufficient for the court to hold that the value of the ranges exceeded $100.
The trial court concluded that a factual basis was "probably" established. This conclusion appears to be based on the preliminary examination testimony regarding original value and the fact that neither White nor his lawyer objected to the statement in the complaint and information that the value was $150. After examining the record, we are compelled to conclude there is no evidence in the record which would support a finding that value of the chain saw at the time of the theft was $150.
A factual basis may be established through testimony by witnesses, reading of police reports or statements of evidence by the prosecutor. Wilson v. State, 57 Wis.2d 508, 513, 514, 204 N.W.2d 508 (1973); Edwards v. State, 51 Wis.2d 231, 236, 186 N.W.2d 193 (1971); Martinkoski v. State,51 Wis.2d 237, 245, 186 N.W.2d 302 (1971). The court may also examine the defendant regarding his actions. Morones v. State, supra, 61 Wis.2d at 552, 231 N.W.2d 31. A statement in Edwards, supra, 51 Wis.2d at 237, 186 N.W.2d 193, which was Dicta, could be construed to hold that a plea of guilty itself can establish the elements of a crime. However, a reasonable construction of the statement in Edwards is that the testimony of the defendant regarding his actions can be considered when establishing a factual basis for the crime charged. The record here does not suggest that White had any knowledge of the value of the saw. He attempted to get $60 for it ($40 plus a $20 debt) but finally sold it for $40 ($20 plus the $20 debt).
The establishment of a factual basis for a crime charged when receiving guilty pleas is distinct from the voluntariness requirement. A factual basis must be established to:
". . . protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge." McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969).
On a motion to withdraw a guilty plea the defendant has the burden of showing...
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