Bressette v. State

194 N.W.2d 635, 54 Wis. 2d 232, 1972 Wisc. LEXIS 1071

• Court: Wisconsin Supreme Court
• Decided: March 2, 1972
• Docket: State 178
• Status: Published

Opinions

Beilfuss, J.

The defendant urges that he should be permitted to withdraw his plea and stand trial on the merits of the case.

A defendant must be allowed to withdraw his plea of guilty and the court must order a new trial only in those instances where a refusal to do so would result in “manifest injustice.” ¹

An examination of the record convinces us that the trial court fully complied with all of the requirements for guilty pleas as set forth in Ernst v. State (1969), 43 Wis. 2d 661, 674, 170 N. W. 2d 713.

The trial judge did determine the defendant’s age, education and general understanding. (A pretrial medical-mental examination was conducted.) Counsel was appointed to represent the defendant. The judge did establish that the accused understood that he was charged with robbery and that the defendant admitted conduct which constitutes robbery. The defendant was advised of the maximum penalty that could be imposed and that the sentences could be ordered to be served consecutively for a total of twenty years. The defendant in response to a question by the judge did acknowledge that no threats, promises or force had been used to obtain the pleas of guilty.

The defendant’s complaint, as it appears from his post-conviction motion and his petition for appointment of counsel in this court, is that he claims his trial counsel told him the sentences would be imposed to run concurrently if he pleaded guilty. This postconviction motion to withdraw the plea was denied by the trial court and properly so. The record reveals that the trial judge specifically informed the defendant that he could be sentenced to ten years on each count and that they could be ordered to run consecutively for a total period of twenty years. The record further reveals that the defendant affirmatively acknowledged that he knew he could receive such sentences.

Before the pleas of guilty were entered, in the presence of and within hearing range of the defendant, the assistant district attorney unequivocally stated that if the defendant entered pleas of guilty the state’s recommendation would be that sentences imposed as to both counts be the maximum and that the sentences would be ordered to run concurrently. The defendant knew what the sentences could be and what the state’s recommendation was going to be before he entered his pleas of guilty. The plea bargain was not breached and no manifest injustice appears on this score.

The brief filed in behalf of the defendant and the oral argument by counsel contend that because in the plea bargain a count of armed robbery was reduced to robbery, the court was obligated to satisfy itself that the defendant knew the elements of armed robbery. Neither of the informations filed, and to which he entered pleas, charged the defendant with armed robbery (one complaint did). The court is not obligated to be sure a defendant knows and understands the elements of a crime he is not charged with. The obligation of the court is to be sure that the defendant knows what the elements of the crime with which he is charged are and that the conduct which the defendant admits constitutes the crime charged. The record shows this obligation was fulfilled.

Defendant’s appellate counsel also asserts that there was an element of judicial intimidation in accepting the defendant’s plea. The basis for this assertion is that the trial judge was impatient when trial counsel for the defendant wanted the victim Thompson to testify rather than the complaining officer. When the trial counsel objected to the testimony of the officer, the court asked counsel if he wanted a jury trial and when counsel responded “No,” the judge further advised counsel that he could call any witnesses (Thompson was in the courtroom) if he was not satisfied with the officer’s testimony. The objection was then withdrawn, and in any event the right of confrontation is one of the constitutional rights waived upon a plea of guilty.² We find no error or abuse of discretion, nor improper judicial conduct in this procedure.

We have carefully reviewed the entire record. The defendant was represented by adequate counsel, he was advised as to his waiver of constitutional trial rights, the crime he was charged with, and the maximum penalties that could be imposed. He acknowledged to the trial court that there were no threats, promises or force used to obtain the pleas. We conclude the pleas of guilty were voluntarily, knowingly and intelligently entered into. The testimony in the record leaves no doubt that he was guilty of the crimes charged. As noted by the trial judge at the time of sentence, the viciousness of the attacks was so extreme that he could have been charged with additional crimes. The plea bargain relieved the defendant of the detriment of being charged and tried on these additional offenses. These facts, combined with an extensive prior criminal record, justify the sentences imposed. We find nothing in this record that would lead us to conclude that it is necessary to permit the defendant to withdraw his pleas of guilty in order to correct a manifest injustice. To put it another way, we find no manifest injustice and the pleas of guilty and the sentences imposed are approved.

By the Court. — Judgment and order affirmed.

1 State v. Reppin (1967), 35 Wis. 2d 377, 151 N. W. 2d 9.

2 Pointer v. Texas (1965), 380 U. S. 400, 85 Sup. Ct. 1065, 13 L. Ed. 2d 923.