McAllister v. State

194 N.W.2d 639, 54 Wis. 2d 224, 1972 Wisc. LEXIS 1070

• Court: Wisconsin Supreme Court
• Decided: March 2, 1972
• Docket: State 140
• Status: Published

Opinions

Wilkie, J.

A single issue is involved in this review:

Was defendant’s plea of guilty knowingly and intelligently made?

As we see it, there is no question that the trial court, on the record made here, did not sufficiently ascertain that the defendant understood the nature of the charge against him and that defendant’s conduct fell within the charge to which he was pleading.

In Ernst v. State ¹ (applicable here), this court extensively reviewed the procedure for accepting a guilty plea in view of the United States Supreme Court decisions of McCarthy v. United States ² and Boykin v. Alabama.³ In Ernst the court made mandatory the standards previously suggested in State ex rel. Burnett v. Burke,4 plus the additional requirement of Rule 11 of the Federal Rules of Criminal Procedure as required by McCarthy and Boykin. The second Burnett standard and the additional McCarthy requirement are germane to this case.

The second Burnett requirement provides that the trial court must “establish the accused’s understanding of the nature of the crime with which he is charged . ⁵ The McCarthy requirement is that the court determine “ ‘that the conduct which the defendant admits constitutes the offense charged ....’” ⁶ It is required that the “ ‘defendant [possess] an understanding of the law in relation to the facts.’ ” ⁷

From the record here it is apparent that the trial court did not comply with either the second requirement of Burnett or the MeCurthy-Boykin standard. At the taking of the plea the court did not in any way question defendant about his understanding of the charge or ascertain that the defendant understood the elements of the crime or that his conduct fell within the purview of the statute.

The state relies upon Martinkoski v. State,8 Burkhalter v. State,9 and Edwards v. State ¹⁰ in support of the argument that defendant’s understanding of the charge need not appear of record. A review of these cases reveals one essential difference. In each of these cases, at the plea taking the defendant specifically stated that he understood the charges against him. In Martinkoski, the case primarily relied upon by the attorney general, this court noted that the defendant recited the elements of the crime to the court and that the defendant knew to which crime he was pleading.¹¹ In Burkhalter ¹² and Edwards ¹³ this court specifically noted that the court questioned the defendant about his understanding of the crime and as to whether the acts were indeed violations of the statutes in question.

The record at the taking of the plea here is absolutely silent in regard to the defendant’s understanding of the charge against him.

The attorney general argues that defendant’s acts were within the proscriptions of the charged statute, but such an argument is inapposite. The court has a duty to fulfill the Ernst requirements on the record. Defendant denies he understood the charges against him. The state attempts to circumvent the Ernst requirement by arguing that defendant really did understand the charge, but again that is not the issue. The issue here is what duty the trial court had when accepting the plea of guilty. Unlike the cases relied upon by the attorney general, here defendant never testified as to his knowledge of the charge or of his understanding of the crime.

The requirement that defendant understand the charge against him is most basic to a knowing plea. Unlike the requirements that the court ascertain that defendant has not been coerced and has sufficient education to enter a plea, defendant’s understanding of the charge cannot be demonstrated through other testimony. Certainly such knowledge is not shown here. The record does not disclose that defendant understood the charge or that his acts violated the statute. Such knowledge cannot be drawn from his other statements to the court. The record is thus fatally defective and reversal is required.

Because of the disposition of the case on the basis of the error in the plea-taking procedure, we do not consider other questions presented by counsel.

By the Court. — Order reversed and cause remanded for further proceedings.

1 (1969), 43 Wis. 2d 661, 170 N. W. 2d 713.

2 (1969), 394 U. S. 459, 89 Sup. Ct. 1166, 22 L. Ed. 2d 418.

3 (1969), 395 U. S. 238, 89 Sup. Ct. 1709, 23 L. Ed. 2d 274.

4 (1964), 22 Wis. 2d 486, 494, 126 N. W. 2d 91.

5 Id. at page 494; Ernst v. State, supra, footnote 1, at page 674.

6 Ernst v. State, supra, footnote 1, at page 674.

7 Id. at page 673; McCarthy v. United States, supra, footnote 2, at page 466.

8 (1971), 51 Wis. 2d 237, 186 N. W. 2d 302.

9 (1971), 52 Wis. 2d 413, 190 N. W. 2d 502.

10 (1971), 51 Wis. 2d 231, 186 N. W. 2d 193.

11 Supra, footnote 8, at page 246.

12 Supra, footnote 9, at page 421.

13 Supra, footnote 10, at page 232.