State v. Braun

301 N.W.2d 180, 100 Wis. 2d 77, 1981 Wisc. LEXIS 2687

• Court: Wisconsin Supreme Court
• Decided: February 2, 1981
• Docket: 78-082-CR
• Status: Published

Opinions

BEILFUSS, C.J.

This is a review of a decision of the court of appeals which affirmed the judgment of the circuit court for Milwaukee county: MAX RASKIN, Circuit Judge.

On June 28, 1978, an order was entered by the circuit court requiring the forfeiture of $75,000 posted as bond in connection with the criminal prosecution of William D. Braun. This review concerns the validity of that order.

In August of 1975, William D. Braun was charged as a party to the crime of first-degree murder in violation of secs. 940.01 and 939.05, Stats. This charge arose out of an incident involving Braun, his wife, and a third party. Braun’s wife, Kathleen Schaffer, was convicted of first-degree murder in a separate proceeding prior to the completion of the judicial proceedings against her husband.

The defendant Braun’s bail was set at $200,000 with sureties on August 27, 1975. Bail was thereafter reset at $75,000. On September 9 the defendant, and his father-in-law Arthur Dulde, acting as surety, executed an appearance bond in that amount. Pursuant to authority granted to it by virtue of sec. 969.12 (3), Stats., the court required the deposit of assets valued at $75,000 with an escrow agent pending the fulfillment of the conditions of the bond. Arthur Dulde and his wife, Jeanette Dulde, in a joint or individual capacity, owned all of the assets transferred to the escrow agent. A hearing was held on the day the bond was executed and Arthur Dulde testified that he understood that he had signed away assets as security for the appearance of his son-in-law and that this was done knowingly and freely. He further indicated that the assets were being signed over with the consent of his. wife.

After a plea bargain conference the State, on October 10, 1977, filed amended charges alleging the commission of manslaughter and possession of cocaine with intent to deliver in violation of secs. 940.05(1) and 161.41 (lm), Stats. The defendant Braun pleaded guilty to both of these charges. The matter was continued for the purpose of conducting a presentence investigation.

On December 15, 1977, the defendant Braun appeared and was sentenced to an indeterminate term not to exceed ten years on the manslaughter conviction, and to an indeterminate term of not more than one year for conviction of the drug charge. The terms were ordered to be served consecutively. The court stayed the execution of the one-year term and placed the defendant on two years’ probation to be served consecutively to the ten-year jail term.

At the close of the sentencing hearing, upon motion of defense counsel, the court temporarily stayed the execution of the sentence and ordered the defendant William Braun to report to the proper authorities on January 3, 1978 to commence his criminal sentence. William Braun never complied with that order.

As reflected in the brief of the petitioner-surety, Braun stole a check belonging to his mother-in-law. He made the check out in the amount of $3,000, forged his mother-in-law’s signature and cashed the item. Law enforcement authorities believe that Braun used this money to help his wife escape from the Wisconsin Correctional Institution at Taycheedah where she was serving the term imposed upon her first-degree murder conviction. It also appears that the couple thereafter fled the country. At the time of oral argument Braun was still at large.

Between 1975 and the December 15, 1977 sentencing hearing, Arthur Dulde died. Mrs. Dulde as personal representative for the Estate of Arthur Dulde, assumed responsibility as surety for the $75,000 bond. The parties agree Mrs. Dulde was present during the sentencing but neither requested nor objected to the stay of execution. On December 27, 1977, believing that her position as surety was insecure and having retained counsel, Mrs. Dulde (surety) appeared before the circuit court requesting to be relieved of her bond responsibility or requesting in the alternative further clarification of her bond responsibility. The motion was denied.

During the ensuing months the State and the surety filed several motions. The State moved for an order of forfeiture, and the surety filed motions requesting total or partial relief from the payment of bond. After hearing the arguments of counsel on May 1, the trial court ruled that a bondsman’s responsibility continued until the convicted defendant surrenders or is surrendered to the custody of the State for incarceration. Accordingly, as noted above, the court ordered that the $75,000 bond be forfeited.

The surety appealed from this adverse determination. The court of appeals affirmed the trial court’s forfeiture order. The opinion of the court of appeals is reported as State v. Braun, 92 Wis.2d 734, 285 N.W.2d 886 (Ct. App. 1979). Subsequently, we granted the surety’s petition for review.

The issue¹ presented for our determination on this review is whether a surety may be held liable for the amount of an appearance bond when the defendant absconds after sentencing and after the execution of his sentence has been temporarily stayed by the trial court upon the request of the defendant.

The essence of the State’s argument is that a trial court may order a bond to continue after sentencing until the defendant surrenders to commence his/her sentence, provided that the terms of the bond evince the surety’s intent to assume such a responsibility. In support of this position the State relies on a series of federal cases.² We are urged to conclude that the bond agreement in this case evinces a clear intent to fix the risk of nonappearance of the defendant on the surety until the defendant surrenders to commence his sentence. It is pointed out that the bond provides that the defendant “shall appear ... at such . . . times and places as he may be required to appear, and will submit himself to any and all orders and directions [of] . . . any Court or Judge having jurisdiction. . . .” The bond also required the defendant to surrender himself to serve any sentence imposed on him and to comply with any order or direction issued by the court in connection with the sentence. The State asks that, as with other contracts, we enforce the intent of the parties as expressed by the plain meaning of the terms of the bond.

It must be acknowledged that the surety’s obligation on a bail bond as on any other surety contract is governed by a reasonable interpretation of the surety’s promise. Restatement, Security, p. 549, sec. 203, Comment (c). Bail bond agreements, however, are not made in a vacuum and must be read and interpreted in light of applicable bail statutes. Id. In Wisconsin, ch. 969, Stats., governs the administration of bail in criminal proceedings.

Sec. 969.09(1), Stats., concerns the conditions which must be included within a bond where a defendant is admitted to bail prior to sentencing. That statute provides :

“If a defendant is admitted to bail before sentencing the conditions of the bond shall include, without limitation, the requirements that he will appear in the court having jurisdiction on a day certain and thereafter as ordered until discharged on final order of the court and that he will submit himself to the orders and process of the court.”

It is clear from the statute that the discharge “on final order of the court” is the end point in time beyond which the surety is not liable. Before addressing the question of whether or not a bond by its terms can extend the obligation of the surety beyond the issuance of this final order, it is necessary to determine which order is the “final order” of the court within the meaning of see. 969.09(1).

We conclude that the final order referred to in sec. 969.09(1), Stats., is the sentencing itself and is not an order staying the execution of sentence. The simple reason for this is that, upon sentencing, the essence of the judicial process is complete and there is nothing remaining for the court to do but to immediately turn over the defendant to the executive authority for incarceration. The trial court is not empowered to stay the execution of a criminal sentence except for legal cause or except as provided by statute.

In discussing the court’s authority to stay the execution of a sentence “until further order of the court,” it was written in In re Webb, 89 Wis. 354, 356, 62 N.W. 177 (1895) that:

“After the defendant had been convicted and the sentence of the law in legal and proper form had been pronounced against him, it is difficult to understand upon what principle the court could further interfere in the premises. The right of the court, for cause, within the exercise of a reasonable discretion, to postpone sentence or suspend sentence, as it is said, seems to be clear; but we think, both upon principle and authority, its right to suspend the execution of the sentence after it has been pronounced cannot be sustained, except as incident to a review of the case upon a writ of error, or upon other well-established legal grounds. After sentence given, the matter within these limits would seem to be wholly within the hands of the executive officers of the law. The sole power is vested in the governor ‘to grant reprieves, commutations, and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper.’ Const, art. V, sec. 6. And the action of the court in the premises, after it had regularly pronounced the punishment provided by law for the offense in question, is clearly obnoxious to the objection that it is an attempted exercise of power, not judicial, but vested in the executive. When the sentence was pronounced the defendant was in custody; and it became eo instanti his duty to pay his fine, and, for failure to do so, the term of his imprisonment at once began.”

The court concluded that the stay of execution was a nullity.

This principle has been reaffirmed on various occasions since the decision in Webb, supra. Drewniak v. State ex rel. Jacquest, 239 Wis. 475, 484, 1 N.W.2d 899 (1942) reiterated this position:

“It is considered that this court is committed to the doctrine that courts have no inherent power to stay execution of a sentence in a criminal case in the absence of statutory authority except for the limited purpose of affording relief against the sentence itself.”

Most recently the rule has been articulated in the context of discussions of the court’s sentencing authority under sec. 973.15, Stats. See Donaldson v. State, 93 Wis.2d 306, 286 N.W.2d 817 (1980); Drinkwater v. State, 69 Wis.2d 60, 230 N.W.2d 126 (1975).³

Precisely what constitutes legal cause for the stay of execution of sentence has not been defined in detail in our law. Historically, it has been recognized that a stay pending appeal is appropriate, see Reinex v. State, 51 Wis. 152, 8 N.W. 155 (1881), and stays of execution have been allowed in other situations, see, e.g., Weston v. State, 28 Wis.2d 136, 135 N.W.2d 820 (1965). However, a stay of execution for the purpose of personally accommodating a criminal defendant has never been sanctioned. Such a stay is not for legal cause.

Having concluded that the sentencing proceeding is the “discharge on final order of the court” as that phrase is employed in sec. 969.09(1), Stats., it remains to be seen whether the statute requires that the surety be released from any obligation upon sentencing or whether the statute allows the surety to accept responsibility for the nonappearance of the defendant after he is sentenced. For the purpose of the discussion of this question, it will be assumed that the language employed in the bond in this case extends the obligation of the surety beyond the time of the final order of the court to that time when the defendant surrenders to commence his sentence. We construe sec. 969.09 (1) to require that the bond cease upon final order of the court, and we conclude that a contract provision to the contrary is void as a matter of public policy.

The language of the statute itself suggests that the responsibility of the surety ceases upon the issuance of the court’s final order. “[T]he conditions of the bond shall include . . . the requirements that he will appear . . . until discharged on final order of the court. . . .” Sec. 969.09(1), Stats. (Emphasis supplied.) It is true that the statute does state that the sec. 969.09 terms shall be included “without limitation,” but such language authorizes other terms or conditions of the bond as they may relate to presentencing matters.

The general statutory scheme under ch. 969 and ch. 973, Stats., also supports the conclusion that a bond may not be continued after sentencing. These statutes authorize a procedure whereby the convicted defendant is to be incarcerated upon sentencing and is not to remain at large. Sec. 973.15 provides that except as provided in that section “all sentences commence at noon on the day of sentence. . . .” There is no authority under ch. 973 for a delay or postponement of incarceration. Ch. 969 is in accord with this view of the penal process. Sec. 969.01(2) sets forth the right of the defendant to bail after conviction. It allows for release on bail after conviction “prior to sentencing or the granting of probation.” (Emphasis supplied.)

When sec. 969.01 (2), Stats., is read together with sec. 973.15, we are led to the conclusion that, except in cases of probation, the legislature has expressed a desire to have criminals immediately incarcerated upon sentencing and not to allow such persons to remain at large. It would be contrary to this legislative scheme to construe sec. 969.09(1) so as to allow a surety to remain as a defendant’s “private jailer” after the defendant has been convicted and sentenced.

As a practical matter, the decision to deny release on bail after sentencing is a very reasonable choice of policy. Bail is a device which exists to insure society’s interest in having the accused answer to a criminal prosecution without unduly restricting his liberty and without ignoring the accused’s right to be presumed innocent. See Gaertner v. State, 35 Wis.2d 159, 164-65, 150 N.W.2d 370 (1967); Whitty v. State, 34 Wis.2d 278, 286, 149 N.W.2d 557 (1967). This purpose is fulfilled when the defendant is convicted and sentenced. Upon conviction and sentence, society’s interest in the defendant’s incarceration is at its peak. The defendant’s liberty has been denied by virtue of the due process of law. To allow the defendant to be released on bail at this point in the criminal law process would be to chance society’s right to the vindication of criminal wrongdoing on the criminal’s moral reluctance to “purchase” his liberty by forfeiting a sum certain of his own (or, as in this case, someone else’s) money. The legislature has wisely decided not to take that chance.

We have examined the federal authorities which the State has cited to the court. It must be noted that a central aspect of these decisions is the federal court’s willingness to accept and approve of a stay of execution of sentence. Quoting from United States v. Gonware, 415 F.2d 82 (9th Cir. 1969), the Fifth Circuit wrote in the case of United States v. Miller, supra, 539 F.2d at 448:.

. . . it is a common practice in the federal courts as well as the state courts, for defendants to request and for courts to grant short stays of execution of sentence to allow defendants to put their affairs in order before they start to serve their sentence. Even a bail bond broker would not expect the defendant to pay for an additional bond during ... [a short, reasonable] stay of execution. Given this widespread practice, it is reasonable that the parties to this bail bond intended that the surety would remain liable during a reasonable stay of execution of the sentence.’ ”

The federal authorities make their own policy determinations, and they are free to allow their defendants to remain at large after conviction and sentencing. This is a practice which has been rejected by the courts and legislature of Wisconsin.

Sec. 969.09(1), Stats., mandates that a bail bond be available as a means of releasing the defendant only until the defendant has been discharged by sentencing, i.e., the final order of the court. A bond agreement which is intended to be security for the release of a defendant after sentencing is contrary to this statute and to the public policy of incarceration upon sentencing. Inasmuch as allowing the continuation of bail after sentencing could serve no purpose other than to secure the unauthorized release of a defendant, it cannot be doubted that such a bond agreement violates this policy. Since the terms of the bond agreement upon which the state bases its arguments violate public policy, they cannot be enforced. See Roux Laboratories v. Beauty Franchises, 60 Wis.2d 427, 210 N.W.2d 441 (1973); Vic Hansen & Sons Inc. v. Crowley, 57 Wis.2d 106, 203 N.W.2d 728 (1973); Trumpf v. Shoudy, 166 Wis. 353, 164 N.W. 454 (1917). The surety must be deemed to have fulfilled her obligation at the time when the defendant was produced for sentencing.

By the Court. — The decision of the court of appeals is reversed.

Callow, J., took no part. Coffey, J., took no part.

1 The surety raises questions regarding notice to the surety in situations when the court seeks to continue a bond and questions regarding the equitable reduction of the amount of bail pursuant to sec. 969.13(2), Stats. These issues need not be treated in light of the holding in this case.

2 See United States v. Miller, 539 F.2d 445 (5th Cir. 1976); United States v. Gonware, 415 F.2d 82 (9th Cir 1969); United States v. Wray, 389 F. Supp. 1186 (W.D. Mo. 1975). See also United States v. Martinez, 613 F.2d 473 (3d Cir 1980); United States v. Carr, 608 F.2d 886 (1st Cir. 1979); United States v. Catino, 562 F.2d 1 (2d Cir. 1977); Palermo v. United States, 61 F.2d 138 (8th Cir. 1932). But see United States v. D’Anna, 487 F.2d 899 (6th Cir. 1973).

3 See also State v. Sittig, 75 Wis.2d 497, 500, 249 N.W.2d 770 (1977).