PULASKI, Plaintiff in error, v. STATE, Defendant in error.*
February 7—March 6, 1964.
Motion for rehearing denied, without costs, on April 28, 1964
23 Wis. 2d 138
For the defendant in error the cause was argued by Robert D. Martinson, assistant attorney general, with whom on the brief were George Thompson, attorney general, William A. Platz, assistant attorney general, William J. McCauley, district attorney of Milwaukee county, and Donald W. Steinmetz, assistant district attorney.
HALLOWS, J. On the hearing of the motion, no question was raised by the state that the court was without jurisdiction, but on this appeal the question is raised whether a motion for a new trial can be properly made after the sentencing on a plea of guilty. A motion for a new trial where a sentence has been imposed upon a finding of guilty based on a plea of guilty implies the withdrawal of the plea. Likewise, a motion to withdraw the plea of guilty and to vacate the judgment and sentence implies the necessity of a subsequent trial. It apparently has been assumed without question and the practice up to this date has been that a motion for a new trial under
The state contends such a motion for a new trial is not proper because there has been no trial within the meaning of the section and therefore there can be no new trial. In Belter v. State (1922), 178 Wis. 57, 189 N. W. 270, it was stated a plea of guilty was a waiver of any trial. Certainly the plea avoids a contest of disputed facts the same as a confession of judgment or the failure to answer in a civil action. A court is permitted to receive a plea of guilty and to enter a judgment thereon under
A motion to withdraw a plea of guilty and for a trial, as we deem the defendant‘s motion to be, although not governed by
Pleas of guilty are not to be lightly treated by the courts. Out of consideration for the rights of persons accused of crime, courts must be careful not to accept a plea of guilty unless it is made voluntarily after proper advice and with full understanding of the consequences. “. . . on timely application, the court will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertence. . . . The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just.” Kercheval v. United States (1927), 274 U. S. 220, 47 Sup. Ct. 582, 71 L. Ed. 1009; see also Annos. Right to Withdraw Plea of Guilty, 20 A. L. R. 1445, 66 A. L. R. 628.
As to the timeliness of the application to withdraw the plea of guilty, it has been stated the withdrawal and substitution of the plea cannot be permitted after sentence. 2 Bishop, New Criminal Procedure (2d ed.), p. 586, sec. 747. We think, however, justice demands that even after sentence on a plea of guilty and perhaps more so a motion to withdraw the plea and for a trial may be made and is timely if served and filed within a year from the finding of guilty. To require the hearing of the motion to be had and the order granting the motion to be made within the year seems to be unjust. One convicted upon a plea of guilty ought not be denied relief in a proper case because a trial court for valid reasons of pressure of work or otherwise cannot hear and decide the motion within a time limit set in reference to the diligence of the petitioner. A period of one year is a generous allowance of time for one convicted to make a motion to change his plea and for a trial if there is any merit to his cause. One who seeks in the name of justice
The year within which such a motion may be made does not start from the date of the plea of guilty. In many cases, pleas are made, accepted, findings made, and sentences imposed the same day; but in other cases, testimony is taken in connection with the plea of guilty and a finding deferred. In the instant case the plea was made on May 5th and testimony taken on the plea and of other burglaries with the consent of the defendant and the assurance of the district attorney he would not issue additional warrants. In order to protect the defendant from future prosecution, such testimony is given prior to the finding of guilty although such practice also serves the purpose of informing the court for its consideration of the sentences to be imposed. Until the finding of guilty by the court is made, the plea stands unaccepted and the year within which a motion to withdraw the plea should be made ought not start to run. Under this view, the motion of the defendant was timely made.
While the defendant in his supporting affidavits to the motion claims many reasons why he should be allowed to withdraw his plea, these grounds on this appeal have been combined into several major contentions which will be discussed seriatum.
His major contention is based on the ground he had been held incommunicado for thirty-six hours, had been subjected to physical punishment by the police officers during that period, and his person, car, and house were searched without a warrant in violation of his constitutional rights.
The defendant‘s statements of being held incommunicado for thirty-six hours, although he requested permission to communicate with an attorney and friends, are not denied but ignored in the affidavits of the police officers. We understand the desire of police officers to extensively interrogate a prime suspect before bringing him before a magistrate, but we do not approve of holding a suspect for thirty-six hours incommunicado in the face of his request to communicate with an attorney, a relative, or a friend. Such detention casts a doubt upon the validity of police methods of crime detection, constitutes an abuse to the arrested individual and may raise a question of the voluntariness of the acts performed and the statements made by the accused during that period of time. The same may be said for the alleged physical treatment of the defendant and the illegal searches.
The defendant relies on federal cases holding a conviction will be reversed if based upon a confession which was ob-
The defendant contends his plea of guilty was a result of being misled by the authorities and misrepresented by his counsel. The defendant claims he was promised a consolidation of all charges of burglaries for his plea and cooperation and he did not receive the promised quid pro quo because after the sentencing in this case he was informed against in Kenosha and Ozaukee counties. The charge of being misled or the victim of unfair play is not sustained by the record. With the defendant‘s consent, 21 burglaries in addition to the three charged were testified to upon the assurance of the district attorney in open court that no warrants would be issued. It is true, the defendant‘s counsel referred to the Ozaukee matter on April 18th, and on May 5th requested a recess so the Ozaukee burglaries could be brought into the case. This, however, was not done and the record is silent as to the reason.
Consolidation of charges of crime pending in several counties is not automatic and requires the initiative of the accused. Under
If the defendant entered the plea of guilty with the hope and expectation or belief that either the punishment to which he might be exposed would be mitigated and the out-of-county charges would also be consolidated so he could also
Nor is the alleged negligent representation by counsel a ground for the withdrawal of the plea of guilty. The only complaint we can discern is his attorney did not get all the charges consolidated. The trial court in its opinion found the defendant‘s counsel was competent. Often after trial, charges of incompetency are directed toward counsel because it appears other tactics than those chosen might have been more helpful to the accused. Criminal as well as civil cases cannot be retried at the instance of the loser because he is more hopeful of success on a second try. Unless the representation of counsel is so inadequate and of such low competency as to amount to no representation, a new trial cannot be granted on that ground.3 If something less than the highest degree of skill and competency of counsel were a ground for a new trial, nothing would prevent the accused in the first instance from hiring competent counsel but admittedly not the most skilful in order to assure himself of a second opportunity for acquittal. Such a rule would lead to great abuse and could not be justified in the interest of justice.
It is true the judges of the criminal branches of the circuit courts denied the defendant counsel on his motion, but this cannot be urged for the reversal of the order in the interest
The rest of the defendant‘s contentions do not constitute grounds for the withdrawal of the plea but rather relate to the sentence. The writ of error was limited to a review of the order denying the motion to withdraw the plea. The defendant contends the trial took six months with portions heard at the Fox Point police station which violated his constitutional rights to a speedy and orderly trial. True, after the plea of guilty, the trial judge threatened the defendant with a maximum sentence of thirty years if he did not co-operate with the police and disclose his accomplices and that night had a conference with the defendant at the Fox Point police station where he was taken from the Milwaukee jail. Such conduct leads to public suspicion of unseemly co-operation between the judge and law-enforcement officers and creates doubts of the impartiality of the judge. While we cannot condone either of these activities on the part of the trial judge, they have no bearing upon the voluntariness of the plea nor do they furnish any grounds
Likewise, the contention the defendant was subjected to cruel and unusual punishment because he received concurrent sentences in Ozaukee county to be served consecutively to the Milwaukee sentences does not furnish a ground for withdrawal of the plea. It is not cruel, inhuman, or unusual punishment for sentences to be served consecutively. Furthermore, the Ozaukee consecutive sentence is not before us on this review. The defendant requests this court to exercise its supervisory power under
By the Court.—Order affirmed.
GORDON, J. (concurring). When police officers hold an arrested person incommunicado, there is a head-on conflict of rights and interests. On the one hand, the police officers have an understandable desire to strike while the iron is hot—to interrogate and to investigate; they also want to prevent the suspect from alerting any accomplices. On the other hand, the arrested person, by reason of basic constitutional and statutory rights, should be permitted to consult with counsel and to be brought before a magistrate “without unreasonable delay.”
Even if the motives of the police in detaining a suspect incommunicado are not reprehensible, the effect is. It smacks of an offensive police state to permit an individual to be swept into the arms of the police and to be completely sealed off from any outside communication for a period as long as thirty-six hours.
This constitutes an abuse to the arrested individual whom we must assume, by law, is innocent. There is also terror
Assuming that Pulaski was in fact held incommunicado by the police for thirty-six hours as he claims, the court has properly disapproved of such practice. I have a doubt that mere disapproval is sufficient, although I recognize that this court has declined to reverse convictions upon the ground of prolonged detentions. Indeed, it was pointed out in a note in 1960 Wisconsin Law Review, 164, 170, that the Wisconsin supreme court has never found a detention to be unreasonable. However, an extended detention is one of the factors to be considered in determining whether a confession was voluntarily made. See Haynes v. Washington (1963), 373 U. S. 503, 83 Sup. Ct. 1336, 10 L. Ed. (2d) 513. Wisconsin has recently enacted a statute which in a very limited manner is designed to assure an arrested person the right to consult his attorney.
In my opinion, the holding of a suspect incommunicado for a long period offends a fundamental fairness which is essential to justice; courts should revise their interpretations so as to restrict such detentions to far shorter periods. In Cicenia v. LaGay (1958), 357 U. S. 504, 508, 78 Sup. Ct. 1297, 2 L. Ed. (2d) 1523, the United States supreme court, although it found no violation of due process, referred to the denial by the police of the suspect‘s request to confer with his attorney and said:
“We share the strong distaste expressed by the two lower courts over the episode disclosed by this record.”
I am authorized to state that Mr. Justice DIETERICH joins in this concurring opinion.