PUBLISHED OPINION
Case Nos.: 95-2444-CR
95-2445-CR
95-2446-CR
95-2447-CR
†Petition for
review filed.
Complete
Title
of
Case:STATE OF
WISCONSIN,
Plaintiff-Respondent,
v.
EARL L. DIEHL,
Defendant-Appellant.†
Submitted
on Briefs: April 12, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: September 26, 1996
Opinion
Filed: September
26, 1996
Source
of APPEAL Appeals from judgments
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: Stuart
A. Schwartz
so
indicate)
JUDGES: Vergeront,
J., and Paul C. Gartzke and
Robert D. Sundby, Reserve Judges
Concurred:
Dissented:
Appellant
ATTORNEYSFor the defendant-appellant the
cause was submitted on the briefs of William E. Schmaal, assistant state
public defender.
Respondent
ATTORNEYSFor the plaintiff-respondent the
cause was submitted on the brief of James E. Doyle, attorney general,
and Mary E. Burke, asst. attorney general.
COURT OF
APPEALS DECISION DATED AND
RELEASED September
26, 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. |
Nos. 95-2444-CR
95-2445-CR
95-2446-CR
95-2447-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
EARL
L. DIEHL,
Defendant-Appellant.
APPEALS
from judgments of the circuit court for Dane County: STUART A. SCHWARTZ, Judge.
Affirmed.
Before
Vergeront, J., and Paul C. Gartzke and Robert D. Sundby, Reserve Judges.
VERGERONT,
J. Earl Diehl appeals from judgments convicting him of five
criminal offenses and orders denying his motions to withdraw his no contest
pleas to each of the offenses.[1] Diehl pleaded no contest to each of the
offenses at a consolidated plea hearing.
Diehl's argument on appeal centers on the oral amendment to the
information made in one of the cases at the plea hearing. The oral amendment, agreed to by Diehl at
the plea hearing, substituted a misdemeanor bail jumping charge for another
charge. According to Diehl, the amended
charge was "legally ineffective" because it did not allege that he intentionally
violated a condition of his release on bond and did not specify which of
several bond condition violations formed the basis of the charge. Therefore, Diehl contends, his pleas to the
bail jumping charge were unknowing and involuntary as a matter of law, and the
trial court erred in not permitting him to withdraw all his pleas. We reject Diehl's contentions and affirm.
BACKGROUND
Diehl was charged with
eight criminal offenses in six separate trial court cases. The trial court held a single consolidated
plea hearing disposing of all the cases.
The complaint in #93-CT-1495 charged Diehl with operating a motor
vehicle after revocation as a habitual traffic offender. The prosecutor informed the court that,
pursuant to a plea agreement, this charge would be amended to misdemeanor bail
jumping.[2] As a factual basis for the bail jumping
charge, the prosecutor stated that Diehl had previously been placed on bail for
two prior operating-after-revocation charges; that a condition of bail in both
cases was that Diehl not operate a motor vehicle; and that Diehl violated this
condition by driving again. Diehl's
attorney stipulated that Diehl had previously been released on bond, that Diehl
was aware of the bond and its conditions, including the condition that he not
violate any criminal laws of the State of Wisconsin, and that Diehl violated
that condition of bond by committing another operating-after-revocation
offense. Diehl affirmed that this was
his understanding of the factual basis.
Diehl's
attorney also stipulated that the predicate prior offense for purposes of the
repeater allegation in felony count #93-CF-1402 could be applied to this amended
bail jumping charge without further filing.
The information in #93-CF-1402 charged Diehl with three counts of
recklessly endangering safety, a Class E felony, as a repeater. As the prosecutor first explained the plea
agreement on #93-CF-1402, Diehl was going to plead no contest to the first
count and the State would move to dismiss the second and third counts.
Then,
apparently because of a concern as to how the repeater allegations in
#93-CF-1402 could be applied to the amended charge of bail jumping in
#93-CT-1495, the prosecutor, with the agreement of Diehl's counsel, advised the
court that instead of amending the charge in #93-CT-1495, they wanted to
dismiss that case and handle the second count in #93-CF-1402 exactly as they
had agreed to handle #93-CT-1495: count
two in #93-CR-1402 would be amended to misdemeanor bail jumping and Diehl would
enter a plea to that amended count. He
would also enter a plea to count one; count three would be dismissed; and the
repeater allegations would remain for both count one and the amended count two.
The
prosecutor also explained the other aspects of the plea agreement. The court asked both Diehl and his counsel
whether what the prosecutor had explained was "overall" their
understanding of the plea agreement and each answered yes. The court then engaged in a colloquy with
Diehl with respect to each of the cases.
Concerning the bail jumping charge, the following colloquy took place:
THE COURT:
Count 2 [in #93-CF-1402] would be amended to misdemeanor bail jumping
which carries a maximum penalty of $10,000 or six months imprisonment or both
in that charge. By entering a no
contest plea, you would be saying that the State could prove that while you
were under bail under Chapter 969 of the Wisconsin Statutes, that you failed to
comply with the terms and conditions of that bond. More specifically, that you were not to operate or drive any
motor vehicle during the pendency of these cases. Do you understand that?
THE
DEFENDANT: Yes.
Before
accepting the pleas in all the cases, the trial court explained the total
penalties Diehl was facing, enumerated the rights Diehl was giving up by
entering no contest pleas, ascertained that Diehl had twelve years of formal
education, that no threats or promises had been made other than the described
plea agreement, and that Diehl was not having any difficulty understanding the
plea agreement and had no questions.
Diehl's counsel stipulated, in response to the court's question, that
the factual portion of the criminal complaints were sufficient to sustain the
necessary findings to uphold the pleas and that, with respect to the amended
count two in #93-CF-1402, the prosecutor's offer of proof was sufficient to
sustain the charge.
The
trial court entered judgments of conviction in each case and sentenced
Diehl. In #93-CF-1402, the court
imposed a term of five years in the Department of Intensive Sanctions with up
to one year of incarceration on the second-degree reckless endangerment
conviction, and a concurrent two-year term of probation on the bail jumping
conviction.
In
his postconviction motions,[3]
Diehl sought to withdraw each of his no contest pleas on the ground that they
were "uninformed as a matter of law, in that the plea agreement integrates
an orally-amended count (i.e., misdemeanor bail jumping) ... which is a legal
impossibility by virtue of its failure to sufficiently individuate the crime in
time and place so as to charge an offense." At the postconviction hearing, Diehl argued that the oral
amendment failed to charge a crime because:
(1) it did not allege an essential element of bail jumping--that he
intentionally violated a condition of his bond--or, alternatively, refer to the
bail jumping statute by number; and (2) it did not specify which of several
possible bail bond violations formed the basis of the bail jumping charge.[4]
The
trial court denied the motions. The
court reviewed the transcript of the plea hearing and concluded that Diehl
understood that the bond condition that formed the basis of the bail jumping
charge was that he not drive a motor vehicle during the pendency of his
cases. The court also concluded that
the failure to allege that Diehl intentionally violated the condition of
his bond did not "water ... down the overall concept or depth of the facts
as to result in Mr. Diehl not understanding what we were talking
about." The court recognized that
a court should always have a concern when accepting oral amendments to a
pleading but concluded that Diehl did have notice of the charge to which he was
entering a plea and did enter a knowing and voluntary plea.
DISCUSSION
Whether to permit a
defendant to withdraw his no contest plea lies within the discretion of the
trial court. State v. Harrell,
182 Wis.2d 408, 414, 513 N.W.2d 676, 678 (Ct. App. 1994). We will reverse a trial court's decision
only if the court has erroneously exercised its discretion. Id. A postconviction motion to withdraw a plea should only be granted
when necessary to correct a manifest injustice. State v. Woods, 173 Wis.2d 129, 136, 496 N.W.2d
144, 147 (Ct. App. 1992). A plea which
is not knowingly, voluntarily and intelligently entered is a manifest
injustice. Harrell, 182
Wis.2d at 414, 513 N.W.2d at 678. If a
defendant establishes that he has been denied a relevant constitutional right,
he may withdraw his plea as a matter of right.
State v. Carter, 131 Wis.2d 69, 79, 389 N.W.2d 1, 5
(1986).
Diehl
first argues that the oral amendment failed to charge a crime because the
element of intent was not alleged.
According to Diehl, this deprived the court of jurisdiction and his no
contest plea to the bail jumping charge was void ab initio. Diehl recognizes that a plea of guilty or no
contest, made knowingly and voluntarily, waives all nonjurisdictional defects
and defenses. See State v.
Aniton, 183 Wis.2d 125, 129, 515 N.W.2d 302, 303 (Ct. App. 1994). Diehl's point is that even if the entry of
his plea was, in fact, knowing and voluntary, it did not waive the
"defect" in the oral amendment because the failure to allege intent
was a jurisdictional defect and cannot be waived.
None
of the cases on which Diehl relies addresses the issue of jurisdiction in a
context similar to this--that is, where the information alleged to be defective
was the result of an amendment agreed to in the context of a plea
agreement. Indeed, while a number of
cases cite the general rule--that a criminal complaint that alleges "no
crime known to law" is jurisdictionally void and the defect is not waived
by the entry of a plea or a guilty verdict--we have located only two decisions
that actually hold that there was no jurisdiction in the case before it. In Champlain v. State, 53 Wis.2d 751, 193 N.W.2d 868 (1972), the
primary case on which the defendant relies, the court reversed a conviction
after trial on one count because the information did not allege all the
elements of that crime. The court stated
that, "while a verdict can aid a charge or information which is defective,
indefinite, but not void, a verdict cannot cure the absence in the information
of a material element of a crime."
Id. at 754, 193 N.W.2d at 870. Relying on Champlain, the court in State v.
Dreske, 88 Wis.2d 60, 81, 276 N.W.2d 324, 334 (Ct. App. 1979), also
reversed a conviction after trial on one count because the information did not
allege a crime.
The
court in Champlain cited State v. Lampe, 26 Wis.2d
646, 133 N.W.2d 349 (1965), as authority and Lampe relied on In
re Carlson, 176 Wis. 538, 186 N.W. 722 (1922). Although Carlson involved a
guilty plea, it did not concern a stipulated amendment to the information. Carlson was a petition for habeas
in which the prisoner alleged that he had pleaded guilty to first-degree murder
but that the information did not charge that crime. The court agreed that the information did not charge that crime
but concluded that the information did charge the crime of aiding in the
commission of first-degree manslaughter.
Carlson, 176 Wis. at 549, 186 N.W. at 726. The trial court therefore had the
jurisdiction to proceed and to accept his guilty plea to first-degree
murder. Id. at 554, 186
N.W. at 728. The court acknowledged
that it was error for the court to accept the plea and sentence to a crime not
charged, which was a more serious crime.
Id. But since the
court had jurisdiction, the error could not be remedied on a habeas
petition. Id. at 554, 186
N.W. at 727.
Subject
matter jurisdiction, with which we are here concerned, is the power of the
court to determine the facts, apply the law and set the penalty. Clark v. State, 62 Wis.2d 194,
200, 214 N.W.2d 450, 453 (1974). For
this reason, if an information does state the elements of a crime, even if it
is not the crime in the statute cited in the information, that defect is not
jurisdictional. See State v.
Bonds, 161 Wis.2d 605, 610, 469 N.W.2d 184, 186 (Ct. App. 1991), reversed
on other grounds, 165 Wis.2d 27, 477 N.W.2d 265 (1991) (where defendant
pleaded guilty to a charge that was not supported by averments in complaint,
but complaint did state elements of another crime, defect in complaint is not
jurisdictional and is waived by guilty plea).
Diehl
does not allege that the original information filed in #93-CF-1402, or in any
of the other cases, was defective. The
court had the power at the beginning of the plea hearing to accept pleas and
impose sentences. Diehl's argument
would require us to conclude that, although the court had jurisdiction over all
the counts in all the informations, including count two in #93-CR-1402, the
court "lost" jurisdiction over that count because the prosecutor's
oral amendment to that count did not specifically state that Diehl
intentionally violated the bail condition or cite the statute.[5] Diehl does not point to any authority that
supports this proposition, and we have been able to locate none.
Although
Diehl phrases his argument in terms of jurisdiction, he raises it in the
context of a motion to withdraw his pleas.
But we fail to see how, if the problem is one of the court's lack of
jurisdiction, the proper remedy is plea withdrawal. When the court in Champlain determined that the
information did not charge a crime known to law, the court reversed the
conviction and sentence based on that count, with no new trial on that
count. Champlain, 53
Wis.2d at 753-54, 759, 193 N.W.2d at 868, 874.
By analogy, if the trial court here did not have jurisdiction over the
amended bail jumping count, it would seem we should order reversal of the
conviction and sentence based on that count.
Diehl does not contend that we should, no doubt seeing the anomalous
result: unless the original count two
(recklessly endangering safety) were somehow reinstated, the result would be
that both the "defective" amended count and the original sufficient
count would be dismissed. We mention
this simply to make the point that Diehl does not explain how the cases he
cites support the result he seeks.
We
conclude that we should not apply the jurisdictional analysis in Champlain
to this context--where the alleged deficiency in the amendment is an oral
amendment pursuant to a plea agreement.
We think the better approach in this context is to employ the analysis
used to determine whether a plea is knowingly, voluntarily and intelligently
made. See State v. Bangert,
131 Wis.2d 246, 389 N.W.2d 12 (1986).
This approach will accomplish what should be the goal here: to make sure that Diehl understood the
crimes to which he was pleading no contest.
Diehl
did not assert in his motion, and does not contend on appeal, that he did not
understand that the violation of the bond condition had to be intentional. Without such an assertion, he has not met
one of the two required threshold requirements for challenging a plea as
unknowing or involuntary. See State
v. Giebel, 198 Wis.2d 207, 216, 541 N.W.2d 815, 817-18 (Ct. App. 1995)
(defendant challenging plea must make showing of prima facie violation of
§ 971.08(1)(a), Stats., or
other mandatory duties, and must allege he or she did not in fact know or
understand the information that should have been provided).
Diehl
also contends that the oral amendment was deficient because it did not
sufficiently describe the crime of bail jumping as to time and
circumstances. Diehl does not contend
this is a jurisdictional defect. We see
no reason why this objection to the oral amendment would not be waived by the
entry of the guilty plea. Insofar as
Diehl argues that his plea was not knowingly and voluntarily entered because he
did not understand which bond violation formed the basis for the crime of bail
jumping, this argument fails because he has never asserted that he did not in
fact understand this. See Giebel,
198 Wis.2d at 216.[6]
By
the Court.—Judgments affirmed.
[1] We consolidated Diehl's four appeals: (1) Case No. 95-2444-CR--an appeal of his
conviction for operating a motor vehicle after revocation (#92-CT-1984) in
violation of § 343.44, Stats.;
(2) Case No. 95-2445-CR--an appeal of his conviction for operating a motor
vehicle after revocation (#93-CT-369) in violation of § 343.44, Stats.; (3) Case No. 95-2446-CR--an
appeal of his conviction for operating a motor vehicle while intoxicated
(#93-CT-1494) in violation of § 346.63(1)(a), Stats.; and (4) Case No. 95-2447-CR--an appeal of his
conviction for second-degree reckless endangering safety and bail jumping
(#93-CF-1402) in violation of §§ 941.30(2) and 946.49(1)(a), Stats.
[2] Section 946.49(1)(a), Stats., provides:
(1) Whoever,
having been released from custody under ch. 969, intentionally fails to comply
with the terms of his or her bond is:
(a) If the offense
with which the person is charged is a misdemeanor, guilty of a Class A
misdemeanor.
[3] Diehl filed identical postconviction motions
in each of the four trial court cases now on appeal.
[4] After Diehl was arrested for operating a motor vehicle
after revocation in #93-CT-1984, Diehl was placed on bond with a condition that
he not operate a motor vehicle. Diehl
violated this condition when he was charged with a second operating a motor
vehicle after revocation offense in #93-CT-369. A condition of bond in #93-CT-369 was that Diehl not operate a
motor vehicle. Diehl violated the
conditions of both bonds when he was charged with a third operating a motor
vehicle after revocation offense in #93-CT-1495.
[5] An information that does not allege all the
elements of a crime but includes a correct citation to the applicable
substantive criminal statute is jurisdictionally sufficient. State v. Petrone, 161 Wis.2d
530, 558, 468 N.W.2d 676, 686 (1991).
[6] We note that this appeal offers a good
example of problems that arise when an amendment to an information, agreed to
in the context of a plea agreement, is made orally. The better practice is for the trial court to require the State
to file an amended information prior to presenting a plea agreement to the
court.