*1 Gerard, Appellant. State, Respondent, v. January Argued March 1973. Decided
No. State 27. 374.) reported (Also in 205 N. W. 2d *5 appellant For there were briefs Peter W. Bunde, attorney, Tolan, Jr., T. L. Brady, Tyrrell, *6 counsel, Cotter & Cutler of all of and oral Milwaukee, argument by Mr. Bunde. respondent argued by
For the cause Robert the was attorney D. Martinson, general, assistant on with whom general. the attorney brief Robert Warren, W. was The J. the defendant first contends that Beilfuss, probation hearing comport revocation did not with due process of law because the trial court him the denied opportunity opposing cross-examine witness. We respect. requirеments no find error in this The basic process require of due of law fairness a factual and that hearing grounds to determine the held revocation. procedure permits This the defendant to be informed probation violations, of his adversary, confront his and to be heard if he ex so desires. State v. rel. Johnson Cady (1971), 540, 50 Wis. 2d N. W. 2d and (7th Hahn 1970), Burke v. Cir. Fed. 2d 100. The right amendment requires sixth of confrontation also opportunity against to cross-examine the witnesses him. Pointer v. Texas (1965), Sup. 380 U. S. Ct. 1065, 13 L. Ed. 923. In this case these mandates given adequate were met. The defendant notice of was hearing. appointed represent The court counsel indigency. due defendant to his The defendant and appeared hearing. attorney hearing A factual was held to if probation determine conditions were defendant, The counsel, violated. with confronted his The accuser. the defendant asked and counsel they anything say why if there was wished to as to probation not deny be revoked. should The court did right defendant or counsel any to cross-examine witness; defendant, rather, counsel, op- had portunity to thereby cross-examine but did not and right. probation After waived officer was questioned, attorney сourt called the defendant’s making remarks, stated: “As
who, other after a few then The court any features, I no comment.” have other anything there and if the defendant called asked clearly say. Both counsel would like to he probation opportunity to cross-examine the had thereby right they pursued neither officer. Since complain. it cannot now waived when it The the court erred defendant also claims that oath, not under officer, who was allowed the against error, testify did nor him. This was ap- object counsel, ever now defendant, with until hearing trial- need not be a formаl peal. revocation hearing need type of evidence the technical rules *7 supra. Cady, ex rel. v. not be State Johnson observed. though judge hearing, the even before The revocation instance, a trial the traditional sense. in this is not in guilt The here is not a determination of the or issue hearing rather a innocence of the defendant but defendant violated the con- determine whether the has Although probationer probation. of the must ditions his due-process-type hearing, a afforded of all of the be of technical rules evidence need not be observed. accept judge, discretion, in the exercise of trial can his reject or the information offered reliable unreliable as or making proper a in determination. major error, claim As of the second n rights equal trial the
contends violated his protection process due under fourteenth amend- ment to the Constitution United States because it re- quired defendant, probation, a as condition $30,000 than for make restitution more which crimes record, in” the “read but for he were which was not convicted. right process
Defendant’s of law not due vio- gives 973.09, Stats., lated. the court discretion Sec. stay sentence, place the probation, defendant on any impose appear which conditions reasonable appropriate. permissible Restitution ais condition for probation. State v. (1972), Garner Wis. 2d required N. 2d Trial W. 649. courts often condition of the defendant make restitu- property tion monetary by for all or losses caused criminal brought defendant which acts have been although to the attention, court’s the defendant has been pleaded guilty or only convicted to one of them. In situations, such when the amount of the deter- loss is mined on face by of the record or defendant’s admission, problem no arises as to the amount of restitu- tion probation. which can be made a condition of State v. Scherr 9 Wis. 2d 101 N. He W. specifically not any could be for of the “read sentenced ins,” but restitution total can ordered amount be probation. condition as a
In this case the amount restitution can be deter- mined from the charged record as to the acts burglaries the information. The perpetrated and the amounts and not specifically lost recovered were set in the forth record with detail and admittеd defend- The defendant complain. ant. should not now be heard to Probation is not a right, grace matter of but rather privilege.2 The defendant cannot dictate the terms of probation and should bargain allowed to strike a prosecutor or the court on matter of restitu- *8 probation. tion as condition of supra. State v. Scherr, defendant, will, twenty The his own free wanted the uncharged offenses in” “read because the district attor- ney promised prosecute offenses, not to those be- Relating The ABA Standards to Probation which this court adopted supra, Garner, in 3.2(c) that, in state standard “Con may appropriately following: ditions deal with matters such as the (viii) making .. . restitution the fruits the crime or reparation damage thereby.” for loss or caused “(d) And Con requiring payment fines, restitution, ditions . . State v. Welkos 14 Wis. 2d 109 N. 2dW. The record. to clear his defendant wanted
cause the defendant occasions, warned court, number sentencing. when read these ins it would consider that wanted the defendant that because The court also stated give this to the court probation and wanted a chance on the defend- expected return in consideration, court uncharged twеnty offenses cooperation. After the ant’s inquired the de- again to in, the were read efficacy of the read propriety disposition, fendant’s dialogue following place: took ins. forward. walk “The Court: Have you said Gerard, admit all other did “Ronald those, voluntarily? freely and to officers offenses Yes. “Defendant: “The Court: any made any promises or threats Were by any enforcement any law by anyone, police officer or manner, any anyone case in in this or involved you officer ? get offenses to admit shape form to those or No. “Defendant: Why you them ? admit “Thе Court: did everything get off I Because wanted “Defendant: anything. in any more involved I am not so books anything you ask want “The there Court: Is other ? him, Klinkowitz, about those admissions Mr. applied any force coercion Klinkowitz: or Was “Mr. get your you these person order to to make you admissions, ?sir No. “Defendant: you your attorney “Mr. Klinkowitz: with when Was you admissions ? made the Yes. “Defendant: “Mr. Klinkowitz: He you with at all times all the interviews with various detectives? Yes. “Defendant: “Mr. you Klinkowitz: He admis- advised to make the your to clean record ? sions Yes. “Defendant: any outstanding “The Court: Are there other matters bring you
which time? wish to court’s attention at this Everything brought been has out “Defendant: everything I am involved in. *9 “Mr. Klinkowitz: I am “The satisfied, your honor. anything Court: Dinerstein, there that Mr. only you concerning ? aspect want to him that ask “Mr. Dinerstein: No.” imposed then court sentence and full ordered complete per at restitution month. and $150 object The defendant did not terms and to these condi- probation probation tions of at the trial nor at hearing. expressed fact, revocation In defendant probation desire for on numerous occasions. Not until years by filing complain almost two later defendant did postconviction a motion for relief. Prior to time this willing terms, comply he indicated he to was with its led to the court and so believe.
Probation revoked was because defendant failed to attempt comply to even with He from its terms. moved address to not probation address and did inform the report failed to officer. He to his officer as ordered. any He attempt pay did make to court and costs disbursements, comply nor make restitution. He did any major imposed by of the conditions the court. argues
The defendant that the court never ascertained ability pay, the defendant’s costs, and dis- are bursements restitution excessive. The court ability ascertain the pay. True, did defendant’s sentencing imposing time of conditions probation indigent, the defendant was but defendant put probation the court that if informed he con- again he could employment. fident obtain This led the court believe he employ- would have suitable ment, longer indigent, would no would therefore pay. ability have notwithstanding this,
Defendant contends all of are conditions still unconstitutional they invidiously against because discriminate him there- denying equal protection him sup- under the law. In proposition re In рort Antazo cites *10 Rptr. Cal. 473 Pac. Cal. 3d support. provides case believe We do not the such indigent in the Antazo, petitioner was confined In the county re- jail pursuant order a to court probation, a fine quiring pay, a of him to as .condition $2,500, plus penalty of in the of a assessment amount imprisoned or, payment thereof, to lieu of be in $625 day unpaid county jail the in for each of the one $10 paid amount and was the amount. codefendant His petitioner pay The unable to and was released. imprisoned. petitioner im- The there his contended solely indigency рay prisonment due to such to his equal discrimination under the costs constitutes invidious protection of the amendment. In clause fourteenth essence, petitioner nonpayment of was incarcerated for The Antazo court rightly imprison- a held fine. that such indigency ment because of one’s the fourteenth violated it amendment because invidious discrimination on is of But the in the wealth. court basis went state Antazo, at page 116, that: imposition upon not the . . we do hold that an indigent assessment, penalty offender of a fine probation, or either as sentence as a cоndition of con- necessity of in all stitutes a violation the instances equal protection Depending upon clause. circum- particular case stances individual and the condition of variety offender, ways there are a in which may indigent offender, the state to fine alternatives as imprisonment, offending without the command of equal protection. Rather, holding simply . our . is indigent pay an fine could, who would his if he must be given indigent. himself of such option comparable an an offender who is indigent When the offender avail refuses to at the inception, alternatives or defaults рarticular otherwise to meet fails of the conditions showing alternative which reasonable offered him without a indigent excuse, offender in becomes exactly eyes the same the contuma- indigent. cious offender who is not When either of these indigency obtain the offender’s ceases to be conditions dispositive consistently may, and he the mandate ‘working equal relegated protection clause, out’ by imprisonment.” his fine not involve discrimination based case hand does
upon indigent wealth, nor is this a case where thereby pay had could such costs day. jail X serve an amount of at a dollar time Rather, ais case where led the court the defendant working family supporting to believe he would be *11 probation. if put allowed to be on He was therefore given option comparable an to an who not offender is indigent jail probation. is, probation or While —that jobs longer the defendant had several indi- and no was gent. Ampco per The first was at Metal a with $90 pay. week take-home The at second was Geuder-Paeschke Frey and Company pay. with a a week take-home $120 point At ability this in time he to at least had payments. make He pay some refused not to and did pay anything case, even a nominal In amount. —not when the ability pay defendant had the to least something alternatives, and refused to avail himself of his attempt comply probation to refused even to with showing excuse, a conditions without of reasonable he eyes exactly in the became of the law same indigent. contumacious offender who not is His in- digency dispositive In re Antazo, to ceases issue. supra. right equal protection to. His under law has given not He been wiblated. was fair a chance. His indigency probation revoked, did not cause his to be but own to attempt compliance. rather his refusal at least His contumacious caused revocation actions and knew he possibility. of this right
The defendant contends his thirteenth amendment against involuntary servitude under States United when the proba- Constitution was court violated revoked failing pay all court imposed tion and sentence failing costs, to make restitution. and disbursements right the thirteenth amendment under defendant’s Probation revokéd for failure was not violated. was pay comply failure to terms and not for its judicial probation a matter of debt. Revocation of in fact discretion and the court basis had substantial support is, its determination —that conditions v. probation State had been violated. Davis Hughes 890, v. 2d State 190 N. Wis. 2d W. 439. Probation (1965), 28 Wis. 2d N. W. pay just failed to revoked not because costs, also restitution, or make but disbursements report support to his family, he failed to because his notify department probation when officer, would not changed any employ- address, keep failed he ment. during probationary period de-
At no time did fendant claim that he could terms meet probation, not have the conditions nor hе did ability Violating payments. to even make some one’s involuntary De- does servitude. constitute *12 serving simply fendant now out a sentence that was is imposed stayed upon previously he conditions which violated. hearing 1971, 10, post-
On December at a on the motion, the conviction for the first time ob- defendant jected probation $30,000. to the condition of restitution of complains He that were involved in the several others $30,000 in various crimes resulted the loss of pay $30,000. he cannot back the victims and the participated in The defendant all of the more than property $30,000 20 in which crimes excess was illegally participant a or obtained. he stolen As was rightfully charged principal responsi- and can be Further, bility loss. for the entire if it his inten- argument equitable give an tion to make he did not the
625 any trial factual court to determine basis how much money or property he, personally, any of the others received. complaint repay
His $30,000 that he cannot aas probation premature condition is for the he reason that probation is now on incarcerated, serving is —he part of his sentence. portion
A quoted of the statute provides: above “Prior expiration any to the probation period, may the court by for modify cause order . . . and condi- terms 3 tions thereof.” probation condition of imposed here is that pay defendant per sum month toward $150 restitu- tion. regains After the defendant probationary status, if why he can show cause he should not be re- quired comply with the condition, the court can for cause shown exercise modify its discretion and or re- Further, lieve him from it. can, any subse- quent probation revocation hearing, if such comes pass, provision reconsider the for restitution and within proper the еxercise of modify discretion it effect and its probation. revocation We believe that contemplated by “cause” the statute impossi- includes bility, hardship undue probably other causes.
Counsel the defendant contends that a condition requiring repayment of attorney’s fees paid county indigent on behalf of an in the defense of a criminal case is unconstitutional under the fifth and sixth of the United amendments States Constitution. question
There indigent no is but that an appointed entitled to significant counsel at stages all process.4 of the criminal trial The defendant does (3), Seс. 973.09 Stats. Wainwright Gideon (1963), v. 335, Sup. 372 U. S. Ct. 733; L. Ed. 93 A. L. R. 2d Miranda v. Arizona *13 Sup. 384 U. S. 86 Ct. 694; 16 L. Ed. 2d sec. 970.02 Stats. to counsel— n right
claim been that he has denied by court- represented been record that he has reveals stages. knowl- appointed claim that all His counsel at is edge required repay might fees allowed that he be chilling upon appointed may have a effect counsel right of waiver of to counsel and his his exercise repayment jury possibility of of trial because attorney’s possibility He not claim of fees. does chilling any upon him, had but a constitutional effect as might chilling upon who defense it have a effect others in the future face will similar situations. dealing here are not result
We cases findings guilty guilty of not where or determinations ordered, payment imposed, incarceration sentence is attorney’s imposed,6 only fees but those cases is not probation sentencing a condition of where as discretion, may, require repayment a matter of as attorney’s probation. fees a condition of as only repayment proba-
Not is counsel as a fees discretionary instance, condition in the tion first but during it can be re-examined the term of or hearing at a revocation in the same manner a condi- as tion of restitution discussed above. repayment
If upon counsel fees is relied as principal or a basis proba- sole basis for revocation of tion, payment impossible and it that such is shown is hardship, or an undue constitutes the condition should completely modified or If, withdrawn. other probationer wage hand, employed at a where repayment of counsel will fees not constitute an undue hardship he or little refuses makes no effort regarded pay, this failure can be contumacious enforced. opinion statutory аre of the provision
We that our repayment costs, including counsel with its fees 973.09, 973.07, See secs. 973.06 and Stats. 256.66, But see sec. Stats.
627 discretionary provisions, unconstitutional, is nor is application its if the administered in manner indicated above.
By the Court. —Order affirmed. disagreement (concurring). My the
Wilkie, J. majority question limited is to of whether it con- require indigent defendant, to stitutional a convicted probation, a condition of as his to reimbursement make legal attorney’s cost of where have fees services indigency been furnished to him and as because 1 2 guaranteed by both federal state constitutions. Here, imposed pursuant this condition was to sec. (1), Stats., imposition 973.09 which authorizes “any appear ap- conditions which to be reasonable and 3 propriate” probation; (e), (1) terms of as 973.06 sec. which includes taxable costs to criminal defendant as “[a]ttorney payable attorney by fees the defense ” 4 county; Welkos,5 this decision court’s in State v. 1 I, Const., Wis. art. sec. 7. by Const., amendment, applicable U. S. sixth made to states Wainwright, amendment, infra, the fourteenth see Gideon v. foot note 10. (1), Stats., provides: person “(1) Sec. 973.09 When is con crime, by may, order, of a victed the court withhold sentence or stay impose execution, place sentence and and in either its case department stating him period, for a stated therefor, may impose any in the order the reasons conditions appear appropriate. period which to be reasonable and The probation may he made consecutive a sentence on a different imposed charge, previously.” whether at the (Em same time or supplied.) phasis (1) (e), Stats., provides: “(1) Sec. 973.06 The taxable costs against following defendant shall consist of the items and (е) Attorney payable no others: ... fees attorney to the defense county.” 5 (1961), 186, 192, “We, 14 Wis. 109 N. W. 2d there 889: fore, determine that there statutory existed no bar the circuit requiring court’s pay prosecution defendant to costs expense special prosecutor’s of the fees and the costs of the audit probation.” as a condition to the defendant’s charge- prosecution” are
which held
“costs
959.055)
(then
able
the latter
statute
sec.
under
costs
(1).
probationary condition under then sec. 57.01
as a
authorizing
majority
hold the Wisconsin statutes
practice
I would
constitutional.
not.
charged
requirement
providing
The Wisconsin
*15
indigent
ex
public
criminal defendants with
at
counsel
by
legislation
enabling
pense,
was effectuated
in
1850’s,6
late
and
court
of the
in
one
earliest
recognize
necessity
the United States7
“to
compensating attorneys
represented indigents
who
in
proceedings
guarantee
order
criminal
in
the defendant
8
fully adequate representation.”
The federal constitu
legal
right
tional
under
counsel
the sixth amendment
recognized by
Supreme
was not
the United States
Court
right
until
v.
Powell Alabama.9 That
applica
was made
ble to states
the fourteenth amendment
in Gideon
10
Wainwright
applied
(crimes
v.
to felonies
with
year
more).
one
or
Argersinger
sentences
In
v.
11
right
Hamlin
indigent
was extended in 1972 to
charged
persons
(crimes
with misdemeanors
sen
year).
than
tences
one
less
years
Nearly
ago
Supreme
four
Court of California
constitutionality
considered the
imposing
a condi-
as
requirement
tion of
a
that
in-
convicted
digent criminal defendant
county
reimburse the California
which had furnished
court-appointed
him with
counsel
6
1858,
163,
Revised Stats.
eh.
sec.
also:
2. See
State v. Beals
(1971),
599, 610,
52 Wis. 2d
than rights by the chill assertion of constitutional penalizing those who choose to them, exercise then it 16 patently be would unconstitutional.” 388, Rptr. 12 In re Allen 207, 71 Cal. 78 Cal. 455 Pac. 2d 143. 13 page Id. at 391. 14 Id. 15 (1968), 570, Sup. U. S. 390 Ct. 88 L. Ed. 20 2d 138. Code, also: 18 (a) (1964). See U. S. sec. 1201 16 Jackson, supra, United States v. page footnote at 581. 630 Congress may been to lessen
That
the
have
motives
capital
the
was
punishment
number of
wherein
instances
imposed
The court
was irrelevant.
stated:
might
Congress’ objectives,
“. . .
Whatever
be said
by
they
needlessly
pursued
cannot be
that
chill
means
rights.
the exercise of
constitutional
.
. The
basic
.
question
chilling
not whether
effect is ‘incidental’
is
intentional;
question
rather
than
whether
unnecessary
effect is
excessive.”
therefore
objection
A further constitutional
I would find in this
practice
imposing payment
attorney
of defense
fees
county
paid by
probation,
a condition of
involves
adequacy
right
of waiver of
counsel. There
one’s
requested
no
waiver here since defendant
and re-
ceived service of counsel.
In
v. Zerbst
Johnson
it was held:
right
repre-
“The constitutional
of an accused to be
by
sented
invokes,
itself,
protection
counsel
court,
liberty
a trial
is at stake —is without counsel. This
in which the accused —whose life or
protecting duty
im-
poses
weighty responsibility
upon
serious
judge
determining
intelligent
trial
whether there
anis
competent
by
waiver
the accused.”
seriously question
I
whether
there has been a valid
right
waiver of the
attempted
to counsel in an
waiver
indigent
by
right
an
adult of
solely
to counsel
grounds that he did not want
later
forced to
county
expenses
already
reimburse
such
out of
family
Indeed,
distressed
resources.
recently
it was
held
Supreme
Court of
H.,
California in In re
juvenile
permit
courts
indigent
should not
minors of
Strange
page
Id.
582. See also:
(D.
v. James
Kansas
C.
1971),
Supp. 1230, 1232,
Fed.
*17
18 (1938),
458, 465,
Sup.
304
1019,
U. S.
58
Ct.
631 right parents appointed to waive their counsel “if the circumstances indicate to the court such extraneous improper influencing substantially factors are 19 minor’s decision.” I objections practice see other constitutional to the majority approve. which distinguished
Parolees, as from probationers, are not required, pain revocation, parole under of to reimburse county providing for the costs defense services.20 indigent Since no obviously convicted defendant can repay start the costs of counsel fees until out he is prison, parole probation, appear it does not requirements the minimal equal protection of the clause have Gray,21 been met. In State ex Garner v. rel. this court that where there held a distinction is between classes, that distinction must some have reasonable basis right order not to violаte the equal constitutional protection. requiring I can find no rational basis for probationers repay yet of their costs defense and require repayment parolees. such spelled
I have out some of infirmi- constitutional with reimbursement for ties counsel which fees today validates.22 These reasons underlie 19 (1970), 525, Rptr. 76, 83, 513, Cal. 3d 2d 2 86 Cal. 468 Pac. 204. 20 Compare 57.06, (Paroles prisons see. Stats. from state (1) attorney’s correction), (e) (Costs house of with sec. 973.06 fees), (1) (Probation), along and sec. 973.09 State v. Welkos, supra, footnote 5 and text. 21 574, (1972), 586, 587, 55 2d 2d Wis. 201 N. 163. W. See (1966), 111, also: Baxstrom Herold 107, Sup. v. 383 U. S. 86 Ct. 760, 620; Humphrey Cady (1972), L. Ed. 2d 504, 15 v. S.U. 512, Sup. 1048, Ct. 31 L. 2d Ed. (рrohibit Whether a violation of the thirteenth amendment ing imprisonment punishment crime) which for a is involved by imprisonment nonpayment attorney’s of defense fees ain criminal upon recently case has been ap commented one pellate Wright In court. v. Matthews 209 Va. Supreme Appeals Virginia S. E. Court of held
632 Bar such American Association’s refusal to countenance practice. The Minimum for Standards Criminal Justice Relating Providing provide: to Services Defense “6.4 Reimbursement. organization or “Reimbursement of counsel or the governmental providing unit re- counsel should ground except obtaining quired, on the fraud in 23 eligibility.” determination very recently A recommendation made in similar Study by the Wisconsin Citizens Committee on Judicial Organization. pointing well ob- As as to constitutional suggests jections, report prob- such reimbursement ably hinders rehabilitation. committee recommenda- tion follows: is as 973.09, permitting judge “Wisconsin Statute Sec. impose any appropriate’
to as ‘reasonable and conditions part probation/should clearly prohibit be amended to repayment attorney’s pro- the bation for fees a condition of indigent defendants.” Interestingly, repеal the committee also recommends bring 256.66, Stats., permits county of sec. which against indigent civil action an recover costs, amending counsel and also 973.06, sec. imposition against prohibit qualified of those costs indigents.25 modify appealed only
I would the order from insofar probation as the revocation was on the violation of based the one condition of defendant’s in- which payment punishment is, of court costs for a crime as example, fine, for and therefore violates the thirteenth amend- ment. Project American Bar Association on Minimum Standards Justice, Rеlating Providing Criminal Standards Defense Services, (Approved draft, 1968). sec. 6.4 24 Report Study Organization, of Citizens Committee Judicial page (1973). see. at 25 Id., pages 166, sec. validly imposed obligation on defendant to reimburse county for counsel condition fees. This is severable (valid) from and does not affect the other conditions probation. *19 I am authorized to that Mr. state Chief Justice Hal- join opinion. and Mr. Justice lows Heffernan Respondent, v. Mutual Noland, Omaha Insurance
Company, Appellants.* Argued 27, February No. 1973. Decided March 1973. 94. (Also reported 388.) in 205 N. W. 2d * rehearing denied, costs, Motion on June