PUBLISHED OPINION
Case No.: 95-0072-CR
† Petition
for Review Filed.
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent, †
v.
ROBERT JOHNSON,
Defendant-Appellant.
Submitted on Briefs: August 1, 1995
Oral Argument: ---
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: March 5, 1996
Opinion Filed: March 5, 1996
Source of APPEAL Appeal
from a judgment and an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If "Special", JUDGE: DIANE S. SYKES
so indicate)
JUDGES: Wedemeyer,
P.J., Sullivan and Schudson, JJ.
Concurred:
Dissented: Schudson, J.
Appellant
ATTORNEYSFor
the defendant-appellant the cause was submitted on the briefs of Brian
Findley, assistant state public defender.
Respondent
ATTORNEYSFor
the plaintiff-respondent the cause was submitted on the briefs of James E.
Doyle, attorney general, and Marguerite M. Moeller, assistant
attorney general.
|
COURT OF APPEALS DECISION DATED AND RELEASED March 5, 1996 |
NOTICE |
|
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. 95-0072-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ROBERT JOHNSON,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: DIANE S. SYKES,
Judge. Affirmed in part; reversed in
part; and cause remanded with directions.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
SULLIVAN,
J. Is asportation an element of the crime of armed robbery when the
property at issue is an automobile?
Based on the Wisconsin Supreme Court's holding in Moore v. State,
55 Wis.2d 1, 197 N.W.2d 820 (1972), and our own decision in State v.
Grady, 93 Wis.2d 1, 286 N.W.2d 607 (Ct. App. 1979), we hold that
asportation is a necessary element to the crime of completed armed
robbery. See § 943.32(1)(b)
& (2), Stats.
I. Background.
Robert Johnson pleaded
guilty to armed robbery.[1] The criminal complaint alleged the following
facts. Johnson, while armed with a
handgun and after leaving the scene of another attempted robbery, approached
Herbert Ball as he sat in his automobile.
Johnson ordered Ball to “get out of the car.” Ball exited his car and left his keys in the ignition. Johnson got into the car and attempted to
start it. Meanwhile, Ball had entered
his adjacent house. He looked back and
saw Johnson exit the car. The
automobile never moved.
The State charged
Johnson with armed robbery and he waived his preliminary hearing. At Johnson's plea hearing, the assistant
district attorney acknowledged, “Apparently the car stalled or shut off or
would not start. Mr. Johnson could
not get away with the car.” Johnson
pleaded guilty to armed robbery and the trial court used the complaint and the
plea hearing as a factual basis for the guilty plea. The trial court then sentenced Johnson and entered the judgment
of conviction.
Johnson later moved to
withdraw his guilty plea, alleging that there was no factual basis in the
record to support the asportation element of armed robbery. He argued both that a manifest injustice
occurred, warranting withdrawal of his plea, and that he did not knowingly,
voluntarily, and intelligently enter his plea because he did not know that
“armed robbery requires that he take and carry away the car.”
The trial court denied
the postconviction motion, ruling that when Johnson “signed the Guilty Plea
Questionnaire and Waiver of Rights form, he gave up his right to challenge the
sufficiency of the complaint and/or information,”—that is, Johnson waived his
right to challenge the sufficiency of the complaint.[2] The trial court also ruled that Johnson
knowingly, voluntarily, and intelligently entered his guilty plea, finding that
after the plea colloquy, Johnson understood the nature of the armed robbery
charge and that he was adequately informed of the elements of that crime. Hence, the trial court concluded that
Johnson did not establish that a plea withdrawal was necessary to correct a
“manifest injustice.”
II. Analysis.
On appeal, Johnson
renews his argument that there was no factual substrate for his guilty plea
because there was no evidence of asportation, a necessary element of the crime
of completed armed robbery. He asks
this court to reverse the trial court's judgment and allow him to withdraw his
guilty plea based on this alleged “manifest injustice.” The State argues that the crime of armed
robbery of an automobile did not require proof of asportation or,
alternatively, that if asportation was an element of the crime, it was
satisfied by allegations in the complaint that Johnson forcibly entered the
car, took possession and attempted to start it. The State concedes, however, that if asportation is an element of
the crime that can be satisfied only by proof that the car was moved, then
manifest injustice necessitates withdrawal of Johnson's plea.
Whether to grant a
motion for withdrawal of a plea lies in the sound discretion of the trial
court, which we will not upset absent an erroneous exercise of discretion. State v. Spears, 147 Wis.2d
429, 434, 433 N.W.2d 595, 598 (Ct. App. 1988).
“A proper exercise of discretion consists of the court applying the
relevant law to the applicable facts in order to reach a reasonable
conclusion.” State v. Jackson,
188 Wis.2d 187, 194, 525 N.W.2d 739, 742 (Ct. App. 1994). In this case, the relevant law provides that
a post-sentencing motion for withdrawal of a guilty plea should only be granted
when necessary to correct a manifest injustice. See State v. Harrell, 182 Wis.2d 408, 414,
513 N.W.2d 676, 678 (Ct. App.), cert. denied, 115 S. Ct. 167
(1994).
Before a trial court can
accept a guilty plea it must “`personally determine that the conduct which the
defendant admits constitutes the offense ... to which the defendant has pleaded
guilty.'” State v. Harrington,
181 Wis.2d 985, 989, 512 N.W.2d 261, 263 (Ct. App. 1994) (citation
omitted). Further, the “`failure of the
trial court to establish a factual basis showing that the conduct which the
defendant admits constitutes the offense ... to which the defendant pleads, is
evidence that a manifest injustice has occurred,' warranting withdrawal of the
plea.” Id. (citation
omitted). If the trial court does
determine that there was a sufficient factual basis for accepting the plea,
this court will not reverse that finding unless it is “clearly erroneous.” Id.
Johnson solely
challenges the factual substrate for one element of the crime of completed
armed robbery—asportation. Section
943.32(1)(b) & (2), Stats.
(1991-92), provides, in relevant part:
(1) Whoever,
with intent to steal, takes property from the person or presence of the owner
by either of the following means is guilty of a Class C felony:
....
(b) by threatening the
imminent use of force against the person of the owner or of another who is
present with intent thereby to compel the owner to acquiesce in the taking or
carrying away of the property.[3]
(2) Whoever
violates sub. (1) by use or threat of use of a dangerous weapon or any article
used or fashioned in a manner to lead the victim reasonably to believe that it
is a dangerous weapon is guilty of a Class B felony.
In addressing Johnson's
argument, we do not start with a blank slate because the Wisconsin Supreme
Court has already construed § 943.32, Stats. In Moore, the supreme court
held that the crime of “robbery necessarily includes the element of
asportation.” Moore, 55
Wis.2d at 6, 197 N.W.2d at 823. The
court acknowledged that the language of § 943.32, Stats., did not expressly state an element of asportation;
however, the court concluded that the language—“`with intent to steal, takes
property'”—embraced the element of asportation. Id. at 5, 197 N.W.2d at 822 (emphasis added). In Grady, this court defined
asportation as: “`The removal of things from one place to another. The carrying away of goods.'” Grady, 93 Wis.2d at 6, 286
N.W.2d at 608 (citation omitted). We
stated: “Asportation, then, is a transaction beyond the point in time when the
property of another is taken.” Id.[4] We note that in the context of similar
language in Wisconsin's theft statute, our supreme court declared: “The
asportation requirement should be considered in the light of the statute's
general purpose to proscribe the exercise of unauthorized control over the
moveable property of another.” Berry
v. State, 90 Wis.2d 316, 330, 280 N.W.2d 204, 211 (1979), cert.
denied, 444 U.S. 1020 (1980).
Nonetheless, the supreme court still noted that there “must be a
movement away from the area where the [item] was intended to be.” Id. While we conclude this consideration should also apply to the
asportation element of the armed robbery statute, we can find no basis to
conclude that armed robbery of an automobile does not require the automobile's
movement away from the area where it was intended to be.
The State argues that
the asportation element “should not apply where the property taken is an
automobile,” positing: “Unlike the coin purse involved in Moore
or the stolen radio in Grady, a motor vehicle does not
necessarily have to be moved in order for a thief to exercise control over it.”[5] This court cannot create such an exception
because our supreme court has definitively held that asportation is a necessary
element to the completed crime of robbery under § 943.32, Stats.
See Jocz v. LIRC, 196 Wis.2d 273, 298 n.12, 538
N.W.2d 588, 596 n.12 (Ct. App. 1995) (stating that “as an intermediate
appellate court in this state we are bound by the pronouncements of the Wisconsin
Supreme Court”). Obviously, if either
the supreme court or legislature wishes to alter this requirement, it is free
to do so; but until such a change occurs we must apply the statute as
previously construed in Moore and Grady. Thus, the completed crime of armed robbery
of an automobile “necessarily includes the element of asportation.” Moore, 55 Wis.2d at 6, 197
N.W.2d at 823.
Accordingly, we must
review whether the trial court determined that the facts in the complaint and
plea hearing established that Johnson's conduct constituted the pleaded offense
of armed robbery. Harrington,
181 Wis.2d at 989, 512 N.W.2d at 263.
The State concedes that the trial court never addressed the question of
whether a factual basis existed for the asportation element of the crime. Further, the State concedes that neither the
complaint nor the plea hearing statements provide a factual predicate for the
element of asportation. There is no
factual basis to support a finding that either Ball's automobile or its keys
were ever moved, even slightly. See
Berry v. State, 87 Wis.2d 85, 87, 273 N.W.2d 376, 377-78 (Ct.
App. 1978) (citation omitted), rev'd on other grounds, 90 Wis.2d 316,
280 N.W.2d 204 (1979), cert. denied, 444 U.S. 1020 (1980); see also
Marygold S. Melli & Frank J. Remington, Theft—A Comparative Analysis of
the Present Law and the Proposed Criminal Code, 1954 Wis. L. Rev. 253, 256 (stating “any
movement however slight has been held to be sufficient” for asportation
requirement). Without such a factual
predicate for his guilty plea, Johnson has established by clear and convincing
evidence that the plea withdrawal is “necessary to correct a manifest
injustice.” Harrington,
181 Wis.2d at 989, 512 N.W.2d at 263.
Accordingly, the trial court erroneously exercised its discretion in
denying his postconviction motion to withdraw his guilty plea to the armed
robbery count.
III.
Summary.
Based on the prior
holdings of the Wisconsin Supreme Court and the Court of Appeals, we must
reverse Johnson's judgment of conviction for armed robbery and the order
denying his postconviction motion. We
remand the matter to the trial court with directions to allow Johnson to
withdraw his plea to the armed robbery charge.
The remainder of the judgment of conviction is affirmed.
By the Court.—Judgment
and order affirmed in part; reversed in part; and cause remanded with
directions.
No. 95-0072-CR (D)
SCHUDSON, J. (dissenting). The
majority notes that in Berry v. State, 90 Wis.2d 316, 280 N.W.2d
204 (1979), cert. denied, 444 U.S. 1020 (1980), the supreme court
declared that “[t]he asportation requirement should be considered in light of
the statute's general purpose to proscribe the exercise of unauthorized control
over the movable property of another.” Id.
at 330, 280 N.W.2d at 211. The majority
reasonably concludes that although Berry was referring to
the theft statute, “this consideration should also apply to the asportation element
of the armed robbery statute.” Majority
slip op. at 8. I agree. Therefore, I also would suggest that we
consider the next sentence of Berry: “‘Carrying away’ must be given a practical, common-sense
construction.” Berry, 90
Wis.2d at 330, 280 N.W.2d at 211.
Applying a “common-sense
construction,” I conclude that where an armed assailant forces an owner out of
his or her car and takes control of the car, the assailant has committed armed
robbery. As Sancho Panza once explained,
“Whether the stone hits the pitcher or the pitcher hits the stone, it's going
to be bad for the pitcher.” Irving Jacobson, A Little Gossip,
on Man of La Mancha (Capp
Records, Inc. 1966). Similarly, whether
an armed robber takes the property away from the victim, or forces the victim
to take himself or herself away from the property, it's going to be bad for the
victim.
Accordingly, I
respectfully dissent.
[1] Johnson also pleaded guilty to attempted armed robbery, while concealing his identity, as a party to a crime, based on other conduct. He does not challenge his conviction on this count; thus, we need not discuss it.
[2] The State concedes the trial court erred in ruling that Johnson waived his right to challenge his guilty plea to the armed robbery. We agree. See State v. Mendez, 157 Wis.2d 289, 294, 459 N.W.2d 578, 580 (Ct. App. 1990) (rejecting judicial estoppel in identical situation to case at bar: “The [S]tate's argument creates a scenario in which a defendant can plead guilty to an offense which was not committed. We conclude that basic principles of justice should not permit a conviction in such a circumstance, despite defendant's guilty plea.”).
[3] Johnson allegedly committed the armed robbery in February 1994 and therefore the 1991‑92 statutes were in effect. The legislature subsequently amended § 943.32, Stats., to make the statutory language gender-neutral. 1992 Wis. Act 486, §§ 608 & 609.
[4] The roots of the
asportation requirement reach to English Common Law: “`There must not only be a
taking, but a carrying away; cepit et asportavit [He took and carried
away.] was the old law-Latin.'” Berry
v. State, 87 Wis.2d 85, 88, 273 N.W.2d 376, 378 (Ct. App. 1978)
(quoting 4 William Blackstone,
Commentaries 231) (bracketed materials added), rev'd on other grounds,
90 Wis.2d 316, 280 N.W.2d 204 (1979), cert. denied, 444 U.S. 1020 (1980).
We must additionally
note, however, that a distinguished commentator on Wisconsin law emphasized
after the 1956 revision of the Wisconsin Criminal Code that asportation was not
a necessary requirement under § 943.32, Stats.:
The taking that the statute
requires is dealt with in the law of theft.
As the critical behavior which the statutes desires to preclude is not
so much the taking, but the accompanying circumstances by which the taking is
accomplished, this provision is unlikely to give difficulty. It is sufficient if there is some
unjustified assertion of control. ... To accomplish the purpose of the statute,
the word “takes” may be construed broadly within these limits. Ancient restrictions such as the necessity
that the property be “carried away” as well as taken will not obtain.
Gordon B. Baldwin, Criminal Misappropriations in Wisconsin: Part II,
44 Marq. L. Rev. 430, 447 (1961).
The Wisconsin Supreme
Court in Moore v. State, 55 Wis.2d 1, 197 N.W.2d 820 (1972),
construed § 943.32, to include an asportation element, and thus, did not
follow this commentary. Hence, we must
follow the supreme court's construction of the robbery statute.
Indeed, the dissent's alleged “`common-sense' construction,” focusing on whether an assailant “takes control of the car,” see dissent slip op. at 1, downplays the supreme court's asportation requirement in Berry that there “must be a movement away from the area where the [item] was intended to be.” Berry, 90 Wis.2d at 530, 280 N.W.2d at 211. In essence, the dissent construes the statute in a manner consistent with pre-Moore commentary. See Baldwin, supra (focusing on “unjustified assertion of control”). We, instead, follow the supreme court's holding after Moore. Thus, where there is no evidence that Ball's automobile ever moved, even slightly, this court must conclude that there is an insufficient factual predicate for Johnson's guilty plea.