*1 error, Plaintiff Defendant Peterson, State, v.
error. Argued 2,
No. State 185. March 1972. Decided March (Also reported 837.) in 195 N. 2dW.
374 plaintiff
For oral in error there were briefs and argument by public McDermott, James H. state defender. argued
For the error cause was attorney Robert D. Martinson, assistant with general, Warren, whom on the brief W. was Robert general. public alleged J. The defender raises 11
Wilkie, part on court, errors of the trial each which presented error was never court. These alleged categories: errors fall into three raising questions
1. Four concerning are asserted jurisdiction of the trial court to guilty pleas. take the alleged
2. questions One error followed by the considering trial court when post- defendant’s conviction motion made under sec. Stats. remaining
3. alleged errors involve the trial acceptance guilty court’s pleas. of the This court often has stated basic rule that unless the error some involves constitutional claim as a matter right appellant, to the this court will not consider presented errors which were not below.1 None of the alleged urged errors here are of constitutional dimen- sions. This court has held, however, unusual cir- 2
cumstances, in discretion, its it will review such errors goes directly the error where guilt.3 the issue of In present circumstances case we choose to con- alleged sider the first four errors raised they arguably go because all to the trial court’s jurisdiction. We also choose to consider the error claimed (1970), State v. Clarke 161, 174, 49 Wis. 2d Cf. 2d N. W. 355. (1970), State v. Schneidewind 110, 120, 47 Wis. 2d 176 N. W. 2d 303. 3 Day 122, v. State 52 Wis. 2d 187 N. 2dW. *5 considering the procedure in sec. in the trial court’s 974.06, fundamental Stats., motion it raises because general questions concerning of which are throughout choose application finally, we And state. remaining regarding the alleged to errors consider the guilty pleas these acceptance of of because each alleged no errors merit and court is anxious has spare a motion under to the trial court new sec. points present only for its consideration which would merely cause merit, after denial for no would which, appeal disposed can of another here on which be matters point. at this
Jurisdiction. filing Time amended A. The defend- of information. (consoli- guilty pleas his amended ant entered to the dated) information before amended information such formally or received filed with court. The 971.09 defender asserts that this fact violates sec. jurisdiction thereby deprives the trial court of Stats., and pleas. accept the to (3), Stats., provides: 971.09
Sec. any attorney the information in “The district shall file having jurisdiction try accept county of his to or alleged guilty plea a as county, a therein of to most crime serious alleged which, to if to another have been in committed county attorney the district of that has executed provided (2). consent as then sub. may plea guilty alleged to enter to all offenses county committed in the where the court been have alleged to all offenses been com- located have attorney in other mitted has executed his counties which the district (2). entering under consent sub. Before writing guilty, the defendant shall waive county any right tried in be crime where the county committed. district where was the present crime was committed need when be *6 plea made but his written consent filed with shall be the court.”
Here the plea court first ascertained that the to each charges voluntary the the was and then ordered complaint amended such a received and filed. While procedure may statute, be a technical violation of the by raising point court, the in trial defendant the the Following filing. his counsel waived this late relating colloquy the between defendant and the court pleas (con- to the voluntariness of the to amended solidated) information, following appears of record: you object “Court: Do at to court re- this time ceiving read to just the amended information which has been you? No. “Defendant: “Court: you accept Do ask the to court amended information? Yes. “Defendant: counsel], “Court: you object Mr. Ott do [defense to being the amended information filed and received time, court this at this well as the said waivers consent ? your No, Ott: “Mr. Honor.” any Thus, clearly error waived. Additionally, any might trial court here corrected error which have by again questioning occurred about his after amended information was filed and received. argues the circuit in jurisdiction did not this case have of the consolidated accepted pleas receiving offenses it because before Stats., the amended 971.09, information. Under sec. attorneys district of the in which the crimes counties acceptance pleas committed consent to the of the were county place. where the serious in the most offense took prior acceptance to In case that was done this right pleas. Moreover, defendant waived the place; which took be tried the crimes counties Thus prior pleas entered. too date the to the were jurisdiction accept consolidated court had plea. Stats., provides:
Sec. com- information, “Formal indictment, defects. No trial, plaint judgment invalid, or nor shall the warrant shall be proceedings reason other be affected or any imperfection or of form which defect in matters prejudice do not defendant.” alleged do not In formal and this case the errors are way. prejudice any defendant in prepare an amended B. Failure information. public defender next the district contends because *7 charging attorney an information did not issue amended by given counties, all in all four consent the crimes the attorneys Chippewa, Waukesha, the of and Eau district Again, point Claire counties invalid. must that is we out prior deemed this assertion was raised and is pursuant (2), this to sec. 971.31 Also waived Stats. prejudice and, error the defendant asserted did not by proceedings provided not make the does sec. here invalid. Stats., require prior (2), 971.09 that
Sec. does seeking approval and other the consent of the district attorney county attorneys, district of in which accepted prepare pleas an information will shall be charges. charging consolidated all of the The failure not, however, would invalidate follow this by if there an actual consolidation was consent attorneys by and a involved waiver the de- district present are These elements this case. fendant. public defender also that because the contends The by attorneys signed the district referred to consents statute, (13), 956.01 predecessor sec. Stats. not valid. Inasmuch as the new are statute the consents simply renumbering (13) is 956.01 of see. argument weight.
statutes, falls of this its own charges. Validity pleas county C. to Eau Claire of public argues despite that The fact defender that pleas accepted in court for Milwau- these were the circuit charges against pending kee county, are still county sug- charges. in Eau Claire for The these same gestion deprived is made that circuit court jurisdiction county Eau Milwaukee of over the Claire provides (5), Stats., offenses. Sec. 971.09 that when charges charges, there is consolidation of should be county dismissed in the where the crime committed. not, however, to follow The failure the statute does deprive plea accepted jurisdic- the court where the of Quite obviously, accepted tion. once the defendant cannot be made to stand trial on the same county charges in the duplicity the offense. Such jeopardy, by would constitute double forbidden both the and federal state constitutions. the Eau
D. Failure Claire consent to crime indicate escape. although contends application signed for consolidation the defendant county escape forgery the Eau included both Claire signed charges, attorney the consent district only forgery charge mentions no reference makes charge. escape provisions to the of sec. 971.09 require' Stats., do not the district enumer- *8 charges which ate the he and in the consenting, application signed present by the included case forgery escape charges. both the and The omission “escape” is, probability, in all a clerical error.4 the word any In error before event, was not made known required, prejudice nor it work a trial as does the 422, Burkhalter v. 2d State 52 Wis. 190 N. W. Cf. 2d 502. Additionally, appears defendant. letter in file a the sub- public demonstrating mitted the defender that cognizant court in Eau Claire was that all of the charges disposed were of Milwaukee. error The simply technical and a clerical error. postconviction
Procedure motion. postconviction statute, 974.06, Stats., motion see. provides prisoner that when a such a motion submits to the trial court procedure the court should follow a provided (3). provides: in sub. That subsection “Unless motion records of the files conclusively prisoner action show that is entitled relief, to no the court shall: “(a) copy a Cause upon of the notice to be served attorney the district who response shall file a written prescribed by within the time the court. “(b) Appoint pursuant (6) counsel 971.01 s. (6)], upon if, files, [970.02 action records response and the attorney appears the district it that necessary. counsel is “(c) prompt hearing. Grant a “(d) findings Determine the issues and of fact make and conclusions of law. . . .” public defender asserts that in this case the trial automatically appointed represent counsel to de- concluding fendant without first that did not file conclusively prisoner show no entitled to requiring relief and response without first from the attorney. district While sup- these assertions are not ported by record, contends adopted the circuit court in this case where- appointed counsel would function as does appointed counsel in appeals. this court criminal That is, attorney would decide if the motion had merit. merit, had it argue If. would brief and *9 380 attorney motion; appeared
the if the motion frivolous the argue no would brief and conclusion that there his appear merit to motion. Thus it would 5 procedure mo- adopted an Anders for circuit court has statute, procedure postconviction tions made under the sec. Stats. public procedure is defender contends attorney
improper appointed because under Anders the argued cannot an be made It is that under amicus curiae. attorney became followed this ease the an adviser to the court an advocate. What but not consider, however, pro- not does cedure under Anders in which an decides that there no merit to case. Then the must counsel advise the court of that conclusion. What Anders re- quires by is that the final decision be made independent after an review of Thus, the record.6 if the here, appoint trial court, study to as desires counsel to record, proper long it is as as the final decision the merits of the motion is determined independent court after an review of record, court-appointed attorney. In this case trial court made the ultimate decision on record with particularity sufficient an denying and entered order the motion.
Appeal procedure postconviction on denials motions. indigent
When an
appeal
criminal defendant
wishes
conviction,
his
appoint
this court will
counsel for that
pursue
appeal
right.
aas matter of
necessary
appellate
It
is often
for
go
counsel to
back
into
court to make the traditional
motions
upon
a new trial based
insufficiency
evidence,
of the
5 Anders
v.
738,
Sup.
386 U. S.
California
Ct.
is not
substitute for motion
only
defendant
974.06 motion can
after the
sec.
be made
a
consist of
direct remedies which
has exhausted his
appeal.
motion
a
A
974.06
motion for
new trial and
sec.
jurisdiction
scope
or of con
limited in
of
is
to matters
not
used
motion must
be
stitutional dimensions.7 The
previous appeal.8
disposed
by
Funda
to raise
of
a
issues
mentally,
motion
authorized
substantial
was
as a
corpus
this
replacement
petition
for
for habeas
by
usually
presented
petition
court. Matters
were
which
by
corpus
covered
for
to
court now are
habeas
this
postconviction
A
974.06
motion to
trial court.
sec.
corpus
presented
petition
can
for habeas
still be
to
974.06
court,
not until
under
but
sec.
applicablé.9
or
issues
exhausted,
has been
Such
sufficiency
jury instructions,
evidence,
error
of
as
procedural
evidence, and other
in admission of
errors
reached
Hence
be
974.06 motion.10
cannot
sec.
indigent
appoint
represent
court will
counsel
forth this
appeal
who wish to
denial
974.06
defendants
of a sec.
only when, in
discretion,
motion
court’s
issues
properly
the 974.06 motion are
within the
raised
7
Langston
228,
(1971),
2d
State v.
53 Wis.
scope motion of that merit. Stats., rights under sec.
Because a defendant’s appeal, rights on direct than much limited his are more obligated in court emphasize now we right appeal of his to inform the defendant all cases guilty or plea of after conviction —whether from the heretofore re- has not after trial. While this inform the quired that the trial court Appeals right for the Seventh appeal, Court of his requirement,11 does Federal Circuit has made this Project on Standards American Bar Association *11 point the Wisconsin out that Criminal Justice.12 We Jury information which Instructions include the Criminal given rela- criminal defendant in a convicted should be rights.13 appeal tion to his right to a of
If has been informed defendant not his fact, appeal not, in from the and if he does conviction, bring appeal, then the defendant an court will allow appeal appoint pursue will counsel for the to a late case, who, in if he merit defendant’s finds in for a new trial make the traditional motions should timely. appeal However, the trial court as if the were appeal of defendant has been informed his when the actually appealed conviction, rights, he has or when right court-appointed appellate to will not have the he on a a 974.06 even has counsel denial of motion if he appealed appointment, his conviction. Such noted not above, Finally, be discretion of will within the this court. 11 Singleton United States ex rel. v. Woods (7th 1971), Cir. 440 2d Fed. Relating Appeals (Approved Draft, to Criminal Standards 1970), p. 9, (b). sec. 2.1 Criminal, (Supplemental Service, Part I Wis J Revised I— SM-33, Requirement that the Trial Court Advise October, 1971), Right Appeal Upon Convicted Persons Their Conviction and of Sentencing Following a Trial or a Plea. appointed by this we believe that once counsel has been attorney, represent appeal court to a defendant on that merit, if he believes case that defendant’s has obligation going court, into the trial has back by way trial, a either of a motion for new a motion postconviction a or motion guilty, withdraw any possible in error. under sec. order to raise repeatedly not court has indicated it will This supreme review errors raised for the first time availability of a motion for a new court. postconviction completely or a motion affords counsel procedures raising court; adequate error the lower making no reason for there motion before such appealing to this court.
Acceptance pleas. guilty entirely alleged All of the errors are merit. without Failure ascertain A. education defendant’s comprehension. first asserts 14 require- Ernst trial court failed to fulfill the first educa- “To determine extent of the defendant’s ment general pre- comprehension.” tion and This has viously requirements do not indicated that Ernst guidelines upon impose inflexible when trial court *12 plea.15 present case, accepting guilty In the while the inquire specifically edu- as to defendant’s court did not length question at about cation, the did defendant court charges, freely the defendant testified about those and apparent record that defendant charges. It from the is comprehension and to enter the education had sufficient 14 661, 674, (1969), 43 2d N. 2d Ernst v. State Wis. 170 W. 713. 237, (1971), 51 2d 2d v. State Wis. N. W. 15 Martinkoski page State, supra, 4, footnote at 302; v. 422. Burkhalter Burkhalter,16 guilty. pointed when
pleas of out in As knowingly plea record demonstrates that was requirements made, are met. the Ernst understanding. ascertain B. Failure defendant’s recently indicated In McAllister v. State court this totally that silent to the defendant’s when the record is as understanding charges against plea him of such knowingly present that In it asserted made. case understanding the court ascertain failed to defendant’s of 1, 3, McAllister, all 6, 7, of counts and 8. Unlike charges simple each furthermore are here guilty was instance the court asked defendant if he testimony charged. of the On was crime the record there police taken from crimes officers who testified to the Following testimony in some detail. the defendant officers, testimony asked if he understood the of any true, if it was and if he desired to statements. make present case, Thus are satisfied that con- we as McAllister, trasted with asked the court the defendant charges explained. if he understood the which had been range Failure to C. inform punishment count 7. On the record for fully explained might to the defendant that it sentence charges consecutively specifical- on all the defendant ly explained to the defendant that “the court could sen- you seventy-one to an up tence indeterminate term of years.” question fully such there is no As it in- range punishment formed the defendant as to the on counts, including all count 7. charge Factual basis operating D. without for owner’s consent. alleges adequate an was not factual
there basis for the 2, “operating taken on count vehicle without owner’s First, consent” two reasons: that while the in- 16 Supra, footnote 4.
17 Ante, p. 224, 194 N. 2dW.
385 belonged to “Vivian indicated that the vehicle formation name Nelson,” reporter the recorded at the Rae Rynelson;” proof the no that second, there is as “Vivía county. Chippewa place in crime took obviously varying reason, the name is As to the first misunderstanding reporter the of the court the result point, the car owner. As second name the charge from that to the defendant was indicated county Chippewa informa- district indicated tion, defendant, had been read to the which county. Chippewa one occurred in No crime that county; Chippewa in crime did not occur asserts that the accept guilty plea adequate. the factual basis Chippewa charge. county forgery Factual basis E. for forgery Chippewa public in county, to count As inadequate the factual was defender indicates that basis testimony forgery that occurred was because LaFayette. public in a food market the town of in The argues inadequate there was an factual plea proof for the because there no basis LaFayette in the in occurred town of located crime county. purpose ascertaining Chippewa a factual plea is to certain that basis for make guilty pleading to a crime he committed.18 argument advanced defender is technical germane when the issue is the factual for basis guilty plea which here the defendant was made forged charged passing check when he admitted LaFayette Chippewa information the town of in the county. required and That is all that was there was taking charge. factual basis for on this sufficient Project Bar on See American Association Minimum Standards Guilty Draft, pp. Justice, (Approved 1968), Criminal Pleas commentary. 30-33, also: Cross sec. 1.6 and See v. State 593, 600, 2d 2d 589. 173 N. W. Wis. *14 'prove public to F. Failure value items stolen. The taking questions factual basis for the the charge radar to theft in that the of the two as the value ranges by the not stolen shown to have defendant was $1,000 alleged as in the Under the been information. (3) statute, only possible preju- theft (b), 943.20 sec. the goods dice would be if the stolen of a than were value less police The testified that officers the $100. ranges; took two new radar to this was sufficient demonstrate that the value exceeded $100. errors. by Other
G. Two final errors are raised the First, defender: that the address of the warehouse involved count was stated as 13380 Carmen avenue information, in the but was testified as 12380 Carmen avenue; police incorrectly second, and that officer the forgery alleged the identified date of in count 8. arguments by In Burkhalter similar raised public defender about inconsistent dates considered were “fanciful.” The raised are trivial not errors and could by any imagination prejudice stretch of the defendant.
By the Court. —Order affirmed. (concurring). misgivings J. C. I have
Hallows, procedure about used the trial court to hear the postconviction petition under 974.06, sec. Stats. Based my upon experience, I procedure conclude this adds more delay and confusion to petition determination of the and causes frustration of the defendant. There is no state- system wide uniform on hearing level for postconviction petitions. placed No time upon limit is attorney toas when report should he make a I paid understand it he is for his services. If such attorney an a report, makes no-merit the trial court supposed must do what it to do in place, the first 19 Supra, page footnote at motion files from
make its own determination conclusively motion is 974.06 records under sec. that must possible merit, court without merit. If it has petition and prosecute the again appoint an attorney. response The from district wait for hearing. grant prompt duty Sec. also under the (c). (3) 974.06 handling petition under sec. stage. experimental criticism Stats., an inis being expeditiously petitions are not
so far petitioners trial courts and determined *15 being happening to their notified of are not what communica- a total lack of petitions. seems to There be court, petitioners, the trial the clerks between tion court, appointed had several counsel. This has against judges de- applications for mandamus trial petitions expeditiously I think do not these termine farming attorneys who are on them out to the staff efficiency determining improves judge of the petitions. possible judges part- help hire
One being legal parts done in assistants, which is some time of LEAA with assistance funds. Wisconsin