COURT OF APPEALS DECISION DATED AND RELEASED October 24, 1995 |
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Appeals. See § 808.10 and
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This opinion is subject to
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No. 95-0496-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ROBERT GORDON,
Defendant-Appellant.
APPEAL from judgments
and an order of the circuit court for Milwaukee County: JEFFREY A. KREMERS, Judge. Reversed.
Before Sullivan, Fine
and Schudson, JJ.
FINE, J. Robert Bryant Gordon appeals, pro se,
from judgments convicting him of two counts of attempted first-degree
intentional homicide, see §§ 940.01(1) & 939.32, Stats., one count of first-degree
recklessly endangering safety, see § 941.30(1), Stats., and one count of robbery, as party to a crime, see
§§ 943.32(1)(a) & 939.05, Stats.,
and from the trial court's order denying him postconviction relief. Although the judgments were purportedly
entered on Gordon's guilty plea, the record reveals that he did not, in fact,
plead guilty to any of the crimes charged.
Accordingly, we reverse.
I.
On August 4, 1993, an
Information was filed by the Milwaukee County district attorney charging Gordon
with two counts of attempted first-degree intentional homicide, one count of
recklessly endangering safety, and one count of robbery, as party to a crime. On November 23, 1993, Gordon signed a guilty
plea questionnaire and waiver of rights form, indicating that he wished to
plead guilty to all of the charges, and appeared before the trial court, the
Honorable Robert W. Landry.[1] At that appearance, Gordon's trial counsel
told the trial court that it was his “understanding that pleas will be entered
today as to all four counts as they appear in the information.” After recounting the charges, the trial
court had the following colloquy with Gordon:
THE
COURT: ... It's my
understanding that after discussing this matter with your attorney, you wish to
enter a guilty plea to all four of these counts; is that correct?
THE
DEFENDANT: Yes.
THE
COURT: Are you doing this freely and voluntarily?
THE
DEFENDANT: Yes.
....
THE
COURT: You understand that by pleading guilty you're giving up
rights that you have under the constitution, very important rights....
THE
DEFENDANT: Yes.
THE
COURT: Are you pleading guilty to this offense?
THE
DEFENDANT: Pleading guilty because-- Because I'm--
THE
COURT: Are the contents -- are the contents of the criminal
complaint which you-- Have you gone
over the contents of the criminal complaint--
THE
DEFENDANT: Yes.
THE COURT: --with your attorney?
THE
DEFENDANT: Yes, I have.
THE
COURT: Are they substantially true and correct?
THE
DEFENDANT: Yeah, they true.
....
THE
COURT: Can the attorneys agree and stipulate the contents of the
criminal complaint are substantially true and correct?
MR.
MURPHY [the assistant district attorney]: Yes, Your Honor.
THE
COURT: Mr. Hart [Gordon's trial counsel], have you gone over
all of the elements of the offense -- each one of the separate offenses with
your client?
MR.
HART: Yes, I have, Your Honor.
THE
COURT: And are you satisfied that taking specially into account his
experience, his youth, and all the other factors, the complexity of four
counts, are you satisfied that all of these things have been fully explained to
him?
MR.
HART: Yes, Your Honor....
....
THE COURT: Very well. Based upon the stipulation previously
referred to, the statement of the witness, the contents of the complaint, and
the information, and based further upon the entire record in these proceedings,
including the colloquy between court and the -- Mr. Robert Bryant Gordon, the
Court makes a finding of guilty to each one of the four counts. Judgement may be entered accordingly....
II.
In Wisconsin, a judgment
of conviction may only be “entered upon a verdict of guilty by the jury, a
finding of guilty by the court in cases where a jury is waived, or a plea of
guilty or no contest.” Section
972.13(1), Stats.[2] A defendant who pleads guilty crosses the
Rubicon; it is extremely difficult to retreat.
See State v. Walberg, 109 Wis.2d 96, 103, 325
N.W.2d 687, 691 (1982) (“Once the defendant waives his constitutional rights
and enters a guilty plea, the state's interest in finality of convictions
requires a high standard of proof to disturb that plea.”), denial of habeas
corpus reversed on other grounds, Walberg v. Israel, 766 F.2d
1071 (7th Cir. 1985), cert. denied, 474 U.S. 1013. A guilty plea is not to be lightly taken; it
may not be inferred from ambiguous conduct.
There is no dispute here
but that Gordon intended to plead guilty, and that the trial court ascertained
that Gordon's desire to plead guilty was voluntary. The simple fact, however, is that Gordon did not plead
guilty, either to all of the charges for which he was convicted or to any of
them. At most, his response “Pleading
guilty because-- Because I'm--” was an explanation as to why he wanted to plead
guilty. As Gordon's reply brief
cogently puts it: “A wish to
enter a plea is not an entry of that plea. Until the defendant's [sic] enters his plea, no Judgment
can be rendered. He or she is entitled
to change his or her mind at any time prior to that affirmative entry of the
plea.” (Emphasis added.) We agree.[3]
By the Court.—Judgments
and order reversed.[4]
Publication in the
official reports is recommended.
No. 95-0496-CR(C)
SULLIVAN, J. (concurring). I also agree with the majority's legal
analysis and conclusion; however, I am concerned with the “personalization” of
legal issues in this case. When the
members of this panel, the trial judge, and the attorneys are long gone, our
published opinions will remain as a testament to the legal skills and judicial
temperament of all those involved.
Thus, I agree with the concurrence that “appellate decisions should
prominently identify judges and lawyers by name when appropriate and necessary
either to address a legal issue or to bring singular praise or criticism to
members of the bench and bar when deserved.”
Schudson, J., concur. slip op. at 1.
Such personalization is neither necessary nor appropriate in this case
because the identity of the judge who conducted the plea hearing is readily
available to anyone by record reference.
No. 95-0496-CR (C)
SCHUDSON, J. (concurring). Although I agree with the majority's legal
analysis and conclusion, I write separately to express concern about the
majority opinion's personalization of the problem in this case, and the
opinion's failure to include defense counsel among those responsible for
assuring a proper guilty plea.
This court's opinions
most often use generic terms such as “the trial court,” “the prosecutor,” and
“defense counsel.” Here, however, the
majority opinion specifically names Judge Landry and assistant district attorney
Murphy, criticizing the former for not “tak[ing] an extra moment,” and the
latter for not “be[ing] more alert.”
Majority slip op. at 6 n.3.
Although I believe that appellate decisions should prominently identify
judges and lawyers by name when appropriate and necessary either to address a
legal issue or to bring singular praise or criticism to members of the bench
and bar when deserved, I do not consider such personalization appropriate in
this case.
Personalizing the
criticism suggests that the actions of these two individuals accounted for the
difficulties in this case. Although in
the most obvious sense that may be so, the underlying problem goes well beyond
the hurried or inadvertent conduct of a single judge or prosecutor. As the majority notes, “[t]his is not the
first time that we have seen this issue on appeal.” Id. Indeed,
we receive a substantial number of appeals because, amazingly, some judges
frequently fail to take guilty pleas in a thorough and appropriate manner, and
all too few lawyers intervene to repair the damage. While we have concluded that many of these pleas do satisfy
constitutional criteria, they often do so just barely, rendering understandable
concern about the clarity of the process, and producing appeals that otherwise
would be unnecessary. Thus, I would not
want the personalization to imply that the problem we address is unusual or
peculiar to the judge or the prosecutor in this case.
Finally, I disagree with
the majority's implication that the responsibility for an appropriate plea
proceeding resides solely with the judge and prosecutor. Certainly, if a defendant wants to plead
guilty, defense counsel is professionally responsible for helping his or her
client accomplish that. If, on the
other hand, a defendant has any hesitation or misunderstanding, defense counsel
is professionally responsible for helping his or her client understand the
proceedings and for carefully determining whether a guilty plea is appropriate
and desired. Although a plea proceeding
remains an adversarial one, defense counsel certainly must not contribute to or
acquiesce in an unlawful plea proceeding.
Thus, in this case, defense counsel shared responsibility with the
prosecutor and judge for what should have been a careful and lawful plea proceeding.
[1] Judge Landry conducted the guilty-plea hearing. Judge Kremers imposed sentence and denied Gordon's motion for postconviction relief.
[2] The Wisconsin Supreme Court has also accepted the so-called “Alford plea”—derived from North Carolina v. Alford, 400 U.S. 25 (1970) (In a capital case, the Constitution is not violated when a defendant accepts conviction even though he or she simultaneously claims to be innocent.). See State v. Garcia, 192 Wis.2d 845, 856, 532 N.W.2d 111, 115 (1995).
[3] We thus reject the
State's attempt to characterize this case as being one where a defendant seeks
to withdraw a plea subsequent to imposition of sentence, where “manifest
injustice” must be shown. See State
v. Reppin, 35 Wis.2d 377, 385–386, 151 N.W.2d 9, 13–14 (1967). Gordon is not seeking to withdraw his guilty
pleas; he seeks vacatur of judgments entered on guilty pleas that were not
made.
This is not the first
time that we have seen this issue on appeal.
If Judge Landry had taken an extra moment, and if the prosecutor had
been more alert, this issue would not be here.
Trial courts should ask defendants whether they wish to plead guilty to
charges that are specifically identified, and should require a definite
response (For example: “Do you wish to plead guilty to the charge of (specific
crime charged)? How do you plead to
that charge?”). To paraphrase Justice
Oliver Wendell Holmes, trial courts “must turn square corners” when they accept
guilty pleas. See Rock
Island, A. & L. R. Co. v. United States, 254 U.S. 141, 143 (1920).
The two concurring
opinions object to what they term the “personalization” of the observations in
this footnote. Judge Schudson correctly
observes that “[t]his court's opinions most often use generic terms such as
`the trial court,' `the prosecutor, and `defense counsel.'” Here, however,
there are two trial judges; failure to specify the judge who presided
over the guilty-plea hearing would, in my view, lead some readers of this
opinion to conclude falsely that it was Judge Kremers who cut off the defendant
as he attempted to explain why he wanted to plead guilty. Moreover, I reject the proposition lurking
in both concurring opinions that those of us in the justice system are not
accountable for what we do; we are.
Judicial opinions
routinely identify by name not only witnesses inadvertently caught up in the
legal system but police officers as well—even when the officers have, to use
Justice Benjamin Nathan Cardozo's word, “blundered,” thereby forcing the
release of those who are guilty. See
People v. DeFore, 150 N.E. 585, 587 (N.Y. 1926), cert. denied,
270 U.S. 657. Moreover, all of the
judges of this panel have been identified by name in the body of many decisions
by the Wisconsin Supreme Court, see e.g., Armor All Products v.
Amoco Oil Co., 194 Wis.2d 35, 47, 533 N.W.2d 720, 724 (1995) (Judge
Schudson identified as author of majority opinion issued by this court); Popp
v. Popp, 82 Wis.2d 755, 759, 264 N.W.2d 565, 567 (1978) (Judge Sullivan
identified for action he took as a trial court judge); Johnson v. Calado,
159 Wis.2d 446, 450 n.2, 464 N.W.2d 647, 649 n.2 (1991) (this writer identified
for action taken as a trial court judge), and Judge Schudson, writing for this
court, identified both trial counsel and Judge Landry in the body of the
opinion in State v. Haste, 175 Wis.2d 1, 18, 500 N.W.2d 678, 685
(Ct. App. 1993). The public whom judges
serve has a right to know which judge does what. The public's right to know, and the concomitant need for
accountability, cannot be vindicated, as Judge Sullivan supposes, by relegating
the readers of judicial opinions to file folders stored in some musty archive.
Judge Schudson's concurrence also opines that the “defense counsel shared responsibility with the prosecutor and judge for what should have been a lawful plea hearing.” We disagree. As I have pointed out elsewhere, the plea-bargaining process all too often aligns defense lawyers with prosecutors, and against the interests of their own clients. Ralph Adam Fine, Escape of the Guilty 73–75 (1986). We should not draft defense lawyers as court-room enforcers of what are either judicial or prosecutorial responsibilities. See § 971.08, Stats. (duty of judge); State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986) (duty of judge); § 978.05(1), Stats. (duty of district attorney to prosecute “criminal actions”).