*1 “after cause action so offer has accrued” as to protection the innocent reasonable victim medical malpractice. Warden, Petitioner, White, Gray, ex
State rel. v. Respondent. Argued November
No. State 140. 1972.Decided January 30, 1973.
(Also reported 638.) W. 2d 203 N. *4 by For there H. were briefs James McDermott, public argument defender, state and oral by public Ronald L. Brandt, assistant state defender. argued respondent
For the the cause was William Platz, A. attorney general, assistant with whom Warren, attorney general. brief Robert W. are confronted We here with three issues Wilkie, J.
concerning petitioner’s to withdraw efforts plea: voluntarily Was entered
face of the fact there had been a brother, agreed one Raymond, plead agreed charges while state burglary dismiss against younger brother, Joseph? against plea bargain public Is such a policy? Raymond
3. Was White denied the effective assistance guaranteed by of trial counsel amendment? sixth bargaining accepted necessary Plea is an part good process whereby many prosecutions criminal guilty plea.1 are fears, as a result of a terminated arising from earlier Supreme States United Court cases 1Brady v. United Sup. States S. 397 U. Ct. L. Ed. 2d 747. *5 suggested pleas ex- which were
wherein it was longer changed voluntary,2 no promises are not were founded. judicial opened bargaining process plea must be
scrutiny.
nature
It
essential
record
a
is
appellate
bargain
assist
made.
will
should be
This
unsuccessfully
a convicted defendant
review when
has
attempted
guilty plea
made because
a
withdraw
as
examining
alleged plea bargain
kept.
an
here,
plea was
time the
record
both at the
hearing
plea,
taken and at the
to withdraw
by
considerably handicapped
the fact
that no
is
plea
at
actual
record was made
the time of the
to the
Although
agreed
plea
upon.
any,
bargain,
if
which was
petitioner,
by
time
when asked
court at the
the trial
guilty,
answered “No” to the court’s
question
anyone
any promise
you,
“Has
made
Mr.
August
hearing
2, 1971,
White?” it
clear from the
prior
that,
may
to the
plea,
have
there
been
bargain
prosecution
entered into between the
Raymond
plea bargain
White.
nature of that
now
before us. We are
fair,
just,
satisfied that
justice
effective administration of criminal
ad-
will be
by thoroughly identifying,
taking,
vanced
at
any
bargains
may
have been
into
entered
prior
procedure
which the
taken.
making
The matter of
plea bargain
record
State,3
in Austin v.
considered
this court
wherein
bargain
always
we stated that a
“should
be made a
matter of record”
contemplates
when such
uncharged
nonprosecution
Noting
offenses.
that such
g.,
E. Machibroda
v. United
States
368 U. S.
Sup.
Ct.
L. Ed. 2d 473.
3 (1971),
2dWis.
“. . . A should be matter of a recommendation record whether it involves prosequi sentencing, charge, of a nolle of a reduced 4 charges agreement immunity.” or read with an of ins February 1971, Austin While was announced on we plea hearing, time March note at the just 24, 1971, barely published Austin been in the had advance sheets. long
Scholars have often been dissatisfied with too hiding bargain process. of The situation by aptly described Newman: general judges way “. . . In a trial court are aware prosecutors commonly promise to ‘recommend’ probation fendant ing, leniency or some other if the de- sentence pleads way guilty, but the court has no of know- any specific instance, what defendant has expect way been led to in the of a sentence unless question put directly prosecuting to him or attorney. general ques- In no observed did instances anyone anything tion of to tence promised whether threatened or response defendant elicit a revealed a sen- promise by Judges prosecutor. question ask the invariably a matter of routine and receive the almost monosyllabic negative reply. way improper only an or unhonored inducement comes attention complains of the court of if the defendant at the time sentencing appeals conviction bar- because 5 gain kept.” Relating
The American Association Bar Standards Guilty to Pleas inquiry do an recommend in-court of State, supra, Austin v. also: Far 734. See footnote rar v. 651, 662-664, State 2d Wis. N. W. Wilxie, (Hallows, J., concurring). C. J. and Quilt Newman, Conviction —The Determination or Innocence Trial, (1966). Without “give visibility trial court in order addition, agreement process.”6
discussions — judicially man- Pennsylvania have and California both any nature dated trial courts to ascertain the their given negotiations.7 general prior plea reasons acknowledgments on-the-record a rule are that such protect the defendant both to serve reneges part of the bar- prosecutor from event that a against gain later claims protect false and to state bargains. unkept determining the part procedure followed in As *7 specified the plea, of a standards voluntariness Relating to Pleas 1.5 of the ABA Standards sec. of ascertaining Guilty respect to must be with observed prior to agreement plea reached whether a has been agreement plea the and of the discussion the terms provides as follows: has been reached. 1.5 Sec. plea nolo accept not of that or “The court should determining plea the is contendere without first By attorney voluntary. inquiry prosecuting and the of counsel, defense the court determine whether should plea plea prior the the of discussions tendered result agreement plea agreement, and, is, has and if it what agreed prosecuting attorney the been reached. If has charge to be seek or sentence which must concessions approved by court, the the the de- court must advise personally fendant the recommendations of the attorney binding prosecuting are not on court. The personally then the defendant should address Relating Guilty, Approved Draft, ABA to Pleas Standards 1968, pp. 29, Commentary. 1.5, pages 60, see. also: Id. at See Commentary Propriety plea 3.1, on see. discussions and agreements. (1971), Commonwealth v. Alvarado 442 Pa. 276 Atl. 2d 526; People Rptr. 385, v. West 91 Cal. 477 Pac. Institute, also: The See American Law Model Code Pre-Ar- raignment Procedure, Tentative Draft No. 5 any any promises force determine other whether plea.” or threats were used obtain time of the Here, there no record made at the was guilty plea entered bargain, any, of the been if had accordingly petition into. limited We must refer this finding petition fact on made in assertions paragraphs (b) (involuntariness), herein under (c) (ineffective counsel), and the thereto. answers brother, petitioner Raymond After White and his Joseph hearing Raymond’s White, testified at plea, explained motion to withdraw the nature bargain they it, understood the trial testimony court found the “incredible.” It difficult glean proceeding precisely from the record what the trial possible court found “incredible.” It is testimony the “incredible” reference to the concerning White brothers testified had It occurred. also conceivable that applied Raymond “incredible” reference posi- White’s plea, tion that virtue the bargain, was not voluntarily entered.
Assuming
pursuant
was made
alleged plea bargain, petitioner
contends that
knowingly
voluntarily
entered.9 In de-
termining
whether a
voluntarily
been
has
entered
*8
undoubtedly
there are
may
which
affect
factors
freedom
volition
given.
with which a
These
is
may
factors
be inherent
in the nature
of the
or
arise from
circumstances outside the
itself. These
latter
recently
by
were
circumstances
noted
court:
may
“There
where,
be some instances
literally, an
appearance
is
result
threat,
fear,
coercion or
8
Relating
ABA
Guilty,
Standards
swpra,
to Pleas
footnote
p.6,
29, sec. 1.5.
9
(1969),
Ernst v.
661,
State
43 Wis. 2d
713;
170 N. W. 2d
Reppin (1967),
State v.
377, 384,
35
2dWis.
385,
26 or a ... accused to the violence a threat mob awaiting those simi stay jail trial.
prolonged in In appearance court that not the lar it is instances coercion or constitutionally unfair, induce it over with’ that lacks the threat but get guilty ‘to plea of willingness a a enter necessary process.” due acknowledged in cer inherent court has also This Rahhal v. exists. pleas element of coercion tain an State,11 noted: this court involuntary not “However, a otherwise valid desire the defendant’s motivated
because induced or
to
intelligent
get
voluntary
penalty. A
the lesser
alternatives,
each
always
or more
involves
choice
having
two
The fact
compelling power of
some
acceptance.
two
choice between
a
make a
defendant must
is not
and take
reasonable alternatives
coercive
consequences,
finally
of the choice
made.
distinction
force which
a motivation which
between
induces and
always
kept
compels
to act must
be
human mind
given a
rea-
or
focus. When
sonable
fair
defendant
legally
from,
alternative to choose
the choice is
(Emphasis added.)
coerced.”
bargain
argues
proffered
he
Petitioner
compels
contained
element of “force
the human
which
precisely
mind
act.”
court has not heretofore
This
of a
bottomed
considered
voluntariness
upon
contemplates
dropping
sibling
charges against
ex-
criminal
one in
loved
change
plea.
In Drake v. State
defendant’s
subjective
plead guilty
in order to avoid the
desire
jailbreak
implication
wife in
deemed
self-imposed
be a
coercive element which did not weaken
knowledgeable
voluntary
aspect
plea.
Although noting
danger
potential
to a confession’s
413, 419,
Burkhatter
v. State
2dWis.
2d
N. W.
144, 151,
52 Wis. 2d
27 police there prose- where voluntariness threat to girl charge suspect’s cute a on friend another if he did charged Phillips court, to crime, not confess this viewing State,13 not, “totality v. did after circumstances,” feel the confession to be coerced. yet case, however, another confession court held prosecute suspect’s that a threat wife, absent his may confession, have in a resulted coerced confession: police prosecute “. . . If the did threaten to Milwaukee accessory wife an defendant’s after the fact such inducing threat aof nature which be coercive could 14 give police defendant to a statement.” favorably Other courts have petitioner’s not looked position. Thus, example, States,15 in Kent v. United a case wherein the defendant told fiancée his would prosecuted pleaded be guilty, he unless First Circuit Appeals Court of held: prepared
“.
say
.
are
. We
not
it can be coer-
cion to inform a defendant
that someone close to him
brought
who is
of a crime will be
if he
book
plead.
If a defendant
does
elects
sacrifice himself
motives,
choice,
for
verse
with other
and he cannot
re-
it
after he is dissatisfied with
sentence,
subsequent developments.”
1 3 (1966),
521, 530,
2dWis.
Similarly, States,17 in Cortez v. United the Ninth Circuit Appeals voluntary despite plea of of Court held a allegation into he had coerced that been defendant’s charges against plea by promise to reduce his pregnant wife. only appellate court two cases do find that an we actually a a the trial in
has
remanded
case to
court
States,18
similar
In Crow United
the Tenth
situation.
v.
Appeals
Circuit
the trial
Court of
remanded a
to
case
knowledgeability
court for a determination on
alleged
plea
of a
voluntariness
which
to have been
was
People
Also,
induced out of concern
v.
another.
Hollman,19
Michigan
Appeals
Court
reversed and
remanded to the trial court
denial
of a
withdrawal
alleging
motion
coercive because
bar
gain contemplated charges being
against
dropped
de
wife.
fendant’s
Without comment on the voluntariness
aspect,
the court
reversed
the trial
basis
denying
abused
its discretion in
with
brought
drawal motion which had been
day
on the
pronouncement.
the sentence
While the American Law
Advisory
Institute’s
Com-
mittee
divided on the question,
the American Law
unanimously
Institute’s Council voted
to eliminate a
provision from the tentative draft of the Model Code
Pre-Arraignment
Procedure which
pro-
would have
prosecutor’s
offering
hibited
leniency
per-
to another
son in order to induce a defendant
plead
guilty to a
charge.20
Eeporter
made the following comment:
Eeporter
still
“[T]he
believes
such inducements
present
special
risk that an innocent defendant will
17 (9th
1964),
Cir.
337 Fed. 2d
certiorari
denied
Sup.
1811, 14
U. S.
Ct.
L. Ed. 2d 18 (10th
19 (1968),
1968),
Cir.
397 Fed. 2d 284.
App. 231,
12 Mich.
We conclude of a voluntariness contemplates special another— concessions *11 especially sibling particular a or a loved one—bears scrutiny by reviewing a trial or of the court conscious psychological pressures upon an a accused situation such here, creates. But we do not reach to a conclusion as the of voluntariness the in case because of the incomplete fact that the record is fact and further finding must be made as to the nature bar- gain, any, if bargain and the effect had such on the plea. the voluntariness of concerning alleged
As to the issue second raised the plea bargain, again the record is to insufficient for us determine bargain, made, whether or not in- if is public consistent with the Admittedly, interest. the attorney great district has discretion in decision to charge given an accused for a offense or offenses.22 attorney great A nego- district also has discretion in his plea bargains.23 tiation of discretions, Neither of these however, Perhaps unfettered.24 the clearest state- relating prosecutorial ment to discretion in the bargaining process is found the in American Law In- Id. at 106. 22 State ex rel. Kurkierewicz v. Cannon 2d 42 Wis. Brown, N. W. 255. See also: The Wisconsin District Attorney Case, 37, and the Criminal Mallon v. State 2dWis. 181 N. 2dW. example An (3), Stats., is found in see. 968.02 which allows judge permit filing complaint a to the of a where the district attorney to refuses do so or is unavailable. relating pro- pre-arraignment tentative draft
stitute’s consider a The draft mandates trial cedure. whether: agreement public in that in the interest “. . . the only public the the into account not benefit it takes case, securing disposition but also prompt a the of public importance disposition of that furnishes a depreciate adequate protection the serious and does law.” promote disrespect offense or ness protection regarding question presented
A valid prompt disposition criminal public versus where, may here, counter- have occurred without cases as turning vailing evidence state’s such as considerations confessing criminally crimes, accused to other against charges person him dismissed re- has especially another. sult of with This is relevant to the case where instant both goods burglarized apprehended were with his brother equally possession. being apparently their Both guilty, orderly it promote administration does justice protection public permit and the charges against one to be dismissed? handicapped by incompleteness we are
Because *12 taking the time record both at of the guilty plea and connection in with the motion to with- ruling plea, question draw the reserve our we on this proceedings hearing completed until in these any. the nature and of the bargain, details if third issue raised a determination of concerns Raymond or not whether White without ef- fective assistance trial counsel when trial his counsel negotiated alleged bargain. petitioner established,
It well acknowledges, so attorney may represent one more than de- one 25 Institute, A American Pre-Arraign Model Code of Law Procedure, supra, ment 7, footnote at
31 lessening proceeding without fendant in criminal court, in Mueller v. effectiveness of services.26 This his State,27 unequivocally made it clear some has also actual conflict of interests must be shown exist: “Thus, Massey [Massey Glasser v. State both 376, (1965), 28 137 N. 2d are in accord Wis. W. 69] general attorney may represent with two rule that one participation indicted in defendants the same crime, are unless the shown interests defendants to be in conflict. « “. . . There must be shown either some actual conflict why persuasive some other . reason . . did ef- fectively represent both defendants.” argues principle
Petitioner of “half loaf operated puissuance is better than none” with more than in essentially usual this case. Petitioner in believes dynamics peculiar situation, already his with of an near-impossible choice operating, especially he needed objective and unfettered assistance counsel. What he received, asserts, was counsel who was representing also the interests of were brother which clearly as antithetical own as be. interests could has
While this court
noted that a conflict
in-
likely to
occur
terests
less
situations
trials,29
than in full blown
we are convinced that
situation,
plea bargain
alleged
instant
if such a
as
agreed
actually
upon, represents
an example of what
this court referred
to Mueller
per-
“some other
why
suasive reason
effectively represent
...
did not
26 Glasser v.
(1942),
60,
Sup.
United States
315 U. S.
Ct.
457,
both defendants.” extraordinary pressures of an Raymond den White with con- in which a represent a nature and did situation that the two defendants interest between flict of as this reference represented existed. If on counsel trial court finding and confirmed this be made should agreed to, actually alleged plea that exist came to of interest it follows that a conflict peti- defendants, that reason two between the permitted withdraw his be tioner should New counsel should conviction aside. and have his set proceed- represent appointed him in further then be ings. petition
By an- Court. —It ordered Jones, Hon. F. be referred to the William swers thereto county, judge county of Racine presiding court opin- II, finding in accordance with this branch for fact hearing findings filed after ion, of fact to be thirty days on or from this order. with this court before respectfully (dissenting). Hansen, T. J. I Connoe majority opinion from the of the court. dissent require The case do not facts granted corpus my opinion relief. It be habeas present this case does not situation record per- exercise its discretion and which this should corpus proceeding mit to be raised in a habeas issues generally scope not considered to be within are proceeding. Furthermore, I of such a do not consider this appropriate adoption an vehicle to case be consider any relating plea agreements. further rules support finding in this facts case petitioner knowingly, voluntarily understandingly guilty. preliminary entered examinations State, supra, Mueller v. footnote *14 Raymond White, petitioner, of the and his brother Joseph, the to at were consolidated. facts testified burglarized preliminary examination the revealed dwelling unoccupied the the time of incident. at was and A woman the knew this who lived across street petitioner the observed the entire observed incident. She going approach and to the house, his brother the one front door and the to the of house. other back the When responded, petitioner no one the of the went back leaving the petitioner house. the house She observed the police awith blonde alerted the television set. She who interrupt petitioner’s operation arrived in time and abandoning him caused to leave on the run after television positive This woman made a set. in-court petitioner. police identification of the recovered the television set where it been abandoned and the had set, owner identified only by the television general appearance make, but also the unusual having fact of petitioner serial number. The was wearing cowboy-type police boots at time and the they exactly officer testified fit in the marks burglary. snow of the scene He also testified a back open. window house had been forced
Petitioner bound over for trial first was on appearance in guilty. trial court entered of not days again appeared Several later he in trial guilty. withdrew his not and entered a accepting Before plea, very thoroughly the trial court petitioner examined the as to knowingly, whether he was understandingly voluntarily entering guilty. inquiring possible When about maximum sentence, petitioner responded inquiry to the court’s by stating that years. it ten Ultimately, the court accepted presentence and ordered a investigation, report of which was made available Among pre- things, petitioner’s other counsel. nearly petitioner’s report pages contained two
sentence approxi- past criminal record and reflected peti- mately prior to the instant offense six months having probation been placed tioner after had been county. burglary found in Milwaukee sentenced, he three Some after months *15 plea the and moved trial court to vacate the sentence. primarily upon the motion the fact that This based was involuntary plea it entered for the because was was against prosecution the would reason that his brother be dismissed. only hearing testimony
The adduced at this was petitioner brother, Joseph. petitioner and his very specifically remembered the of the trial details proceeding arraignment sentencing court and thought him, he were and not recol- favorable could any lect of which were unfavorable to his statements him. He testified that trial told him he counsel get probably three-year would it a sentence and that right would have been all with him if he had received three-year a The trial court sentence. stated that the petitioner’s testimony hearing at this “incredible.” was majority appears While the of court this have some by doubt as to what the trial court meant use of “incredible,” word writer this is at a think of loss to a word that more appropriately would describe his testimony. appeal
No from was taken petitioner’s denial of motion to vacate long sentence. Now, after appeal expired time has means a habeas corpus proceeding, majority of the court reaches (1) out to consider: plea; voluntariness of the (2) against whether the public policy; (3) whether was denied effective assistance trial reaching counsel. In these in issues a corpus my opinion this proceeding, habeas it is establishing practical precedent which, all for timely ap- purposes, statutory provisions for makes peals nullity. my subject opinion expressly
It
case
Supreme
in
mandate of the United
Court
States
Sup.
North Carolina v.
(1970), 400
S.U.
Alford
defendant,
Alford,
Ed. 2d 162.1 In
Ct.
27 L.
proclaimed
innocence,
who
entered a
second-degree
provided
murder which
for maximum
thirty-year
sentence,
than
rather
stand trial
first-
for
degree
provided
imprisonment,
murder which
for life
penalty.
and under certain
the death
circumstances
affirming
second-degree
convictions
murder based
upon
bargained plea,
Supreme
the United States
swpra, page
Alford,
Court stated
31:
Brady
States,
“We
v. United
held
2d Farrar 651, 654, v. State 52 Wis. 2d 191 N. W. 214; 2d (1971), 708, Salters v. State 713, 2dWis. 2d N. W. opinion that majority of the of the court be the can of voluntariness the issue
before reaching required. hearing determined, a further rely heavily the majority decision, the seems to this draft dissenting the tentative Reporter’s comment Pre-Arraignment of the Procedure of the Model Code of juris- from and two other American Law Institute cases considerably prior the decision decided dictions swpra. Alford, I Supreme in Court the United States persuasive authorities do not consider these to be by majority. reached the decision arrangement undisputed not that was It is knowledge of the the time trial court at within imposed. majority opinion However, sentence acknowledges sequence of the time decision (1971), 727, Austin State 2d 2d in 183 N. W. v. Wis. sentencing petitioner instant and the probably case the Austin not is such decision available to the trial court.
Although plea arrangement upon forth set court, my the record in the trial examination of the was, record no doubt but there fact, leaves what plea arrangement. before also record now us disposition the ultimate of the reveals case exactly contemplated brother are arrangement. being situation, Such if majority writer mandate of the understands correctly, it is now law of the peti- case permitted tioner must be plea, withdraw his have aside, his conviction appointed. set and have new counsel Institute, The American A Pre-Arraign Law Model Code of Procedure, ment Tentative Draft 5No. 106. See (10th also: 1968), Crow v. United States Cir. 397 Fed. 2d People App. v. Hollman 12 Mich. N. W. *17 reached, majority, This result because so reasons some because sort conflict interest existed lawyer represented petitioner same both the and his I brother. do not find a conflict of interest the instant petitioner Both case. consented his brother representation open dual court. There slightest any in the indication dissatisfac- record any representation afforded, tion with the much less any feeling indication of belief or so far as conflict petitioner either the or his brother are concerned. thought idea of conflict of into interest first comes being months pleaded after had majority sentenced. The been ultimate conclusion arrangement seems be that once the been had by made clients, upon counsel and his it incumbent court, counsel inform the withdraw from the case appointed have other counsel to review efforts. I cannot subscribe to such result and conclude ob- serving judges that henceforth the could, trial with considerable justification, be reluctant accept to ever plea of in a criminal case. Relief should be denied. Hanley
I am authorized to state that Justice Mr. join Mr. Justice Robert W. Hansen in this dissent.