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COURT OF APPEALS DECISION DATED AND RELEASED August
31, 1995 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-1346-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
DOUGLAS
MAUG,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for LaCrosse County: MICHAEL J. MULROY, Judge. Reversed and cause remanded with
directions.
SUNDBY,
J. In this case, the trial court was faced with a dilemma.[1] It was represented to the court at the plea
hearing that defendant Douglas Maug would plead guilty to one count of theft of
timber, contrary to §§ 26.05(2) and 943.20(1)(a), Stats. In fact, Maug
pled "no contest" to the charge.
Maug does not claim that the trial court abused its discretion when it
received his plea. However, before
imposing sentence, the district attorney and Maug's counsel introduced
testimony which presumably was intended to influence the court as to the
sentence the court imposed. Much of
that testimony was intended to show that Maug had intentionally stolen several
trees. When the trial court asked
Maug's counsel whether he had any other testimony to offer, Maug interrupted
and stated: "Yes, Your Honor. It was just--it was a mistake."
Maug's
counsel then put in evidence and argued that Maug did not intentionally steal
the trees. "He is not the type of
person that simply goes out and takes advantage of a few logs that are just
over the line." After counsel put
in this additional evidence and argument, the trial court asked Maug whether he
wanted to say anything "about the situation or about
sentencing." Maug then responded
as follows:
THE
DEFENDANT: Yes. It was just a mistake. The line fence that was there, we never seen
it. There's another netting fence going
up the hill. We thought that was the
line fence.... [I]f we'd have seen a
fence, we'd have never cut them trees.
We thought we were on Jerome Gundersen's 40. We cut six trees on his and one on Jerome's. The timber buyers come and told us we had to
stop because they found out that 40 was a forest program and we quit.... [I]t do[esn't] make any sense. Why would I go way back into the boonies
like that to steal some trees? I don't
get nothing but $3 a tie to put them on the landing. And then I got to pay my help to do it.
It was just a mistake. I didn't take it to trial because I can't
afford another couple thousand dollars.
THE
COURT: Anything else?
THE DEFENDANT:
It was a dumb thing to do, I know that, but we sure didn't do it on
purpose.
Acceptance
of a plea is discretionary. See State
v. Garcia, 192 Wis.2d 845, 856, 532 N.W.2d 111, 115 (1995). A defendant's motion to withdraw his or her
plea usually is the result of a sentence which was more than the defendant
expected. However, in this case, Maug
had not been sentenced. We conclude
that when it becomes apparent to the trial court that the defendant refuses to admit
an element of an offense necessary to a finding of guilt, the trial court should
question the defendant as to whether he wishes to persist in his guilty or no
contest plea in view of his claim of innocence. The record should reflect that the defendant wishes to adhere to
his or her plea despite his or her protest of innocence.
Such
an inquiry was especially necessary in this case because the complaint did not
contain sufficient facts upon which to find Maug guilty. Further, the district attorney admitted that
there were facts in this case which negated intent.
To
sustain Maug's conviction, it was necessary that the State show that Maug knew
that he was on Christopher Winther's land when he cut the trees. Maug's employer had a contract to log
neighboring land owned by Jerome Gundersen.
Maug thought he was on that land.
A DNR warden inspected the site after the cutting and saw fallen
treetops over the section corner marker.
He observed that at least two treetops had fallen over the fence which
marked the property line between Gundersen's and Winther's land. The complaint further states that Maug's
employer informed the investigating officer that Gundersen had been paid for
the logs and Winther should work out compensation with Gundersen. The complaint also alleged that when Maug
and his helper went to log Gundersen's property, they did not see a line fence
separating Gundersen's land from Winther's land. Maug's helper told the investigating officer that he was not
aware that they had crossed the property line.
At
the plea and sentencing hearing, the district attorney conceded that the line
fence was not the "normal height" (three feet). She also conceded that the fence "was
on the ground and was kind of curling around." The district attorney also informed the court that Maug did not
have a criminal record. Maug's current employer,
also a timber company, testified that Maug had worked for him for four or five
years. He testified that once in a
while they ran into this problem where the property lines were not clear. He further testified that he knew for a fact
that Maug had never stolen anything. He
testified that Maug's reputation in the community was that he was an honest
person and a hard worker.
We
conclude that it is probable that if Maug is allowed to withdraw his plea and
is tried, the State will be unable to establish that Maug intentionally removed
the trees from Winther's property. We
therefore reverse the judgment and remand for further proceedings to allow Maug
to withdraw his plea and be tried, should that be necessary.
By
the Court.-- Judgment reversed
and cause remanded with directions.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.