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06/01/83 STATE WISCONSIN v. GERALD BARTELT

June 1, 1983

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
GERALD BARTELT, DEFENDANT-APPELLANT-PETITIONER



Review of a decision of the Court of Appeals. Reversing and remanding Heffernan, J.

The opinion of the court was delivered by: Heffernan

This is a review of an unpublished decision of the court of appeals dated June 11, 1982, which affirmed an October 28, 1981, order of the circuit court for Racine county, JON B. SKOW, Circuit Judge, denying Bartelt's motion for post-conviction relief under sec. 974.06, Stats. We reverse, and the cause is remanded to the trial court with directions that Bartelt be permitted to withdraw his plea of guilty.

Although several issues have been presented on appeal and on this review, we conclude that the question of whether the original plea of guilty was constitutionally acceptable is dispositive of all other ancillary questions because we conclude that the plea of guilty was involuntary as a matter of law and must be set aside.

The record shows that the defendant was charged with a violation of sec. 943.38(2), Stats., uttering a forged instrument, a $50 check. Initial appearance was made before a court commissioner on October 20, 1975. Bartelt was not represented by counsel. At the initial appearance, the district attorney told Bartelt that the maximum penalty for forgery was a fine of $5,000, a term of imprisonment of not more than ten years, or both. Sec. 970.02(1) requires that, at the initial appearance, the complaint show the possible penalties for any offense charged, and it also requires that the "Judge" inform the defendant of the possible penalties if a felony is charged.

On November 24, 1975, Bartelt appeared before the then county Judge of Racine county, Gilbert N. Geraghty. He was represented by Attorney John Miller, an assistant public defender, whom the defendant had not met until minutes before the guilty plea was entered. In that brief meeting, Miller told Bartelt that he had been discussing his case with the state and that, if he were to plead guilty, he would be placed on probation if he made restitution on the forged check. During this exchange just prior to arraignment, there was no advice given to Bartelt about the rights that he would waive by his plea of guilty, the penalty consequences that might follow the plea, nor any Discussion of any defenses which might be posed at trial.

The arraignment commenced at 9:11 a.m. and ended with sentencing six minutes later. During that brief hearing, without any pre-consultation with his client, Attorney Miller told the court that Bartelt waived the preliminary hearing and the reading of the information. He also told the court that Bartelt was prepared to enter a plea of guilty.

The principal terms of the plea agreement were stated to the court by the prosecutor: That the defendant would waive the preliminary hearing and agree that the matter remain in the court for further proceeding, that the state would file an information on the offense charged, and that the defendant had agreed to enter a plea of guilty. The prosecutor said that, upon a plea of guilty, he would recommend a term of probation, with the condition that restitution be made on the single check which was the subject of the charge and also in respect to six additional checks in the sum of $175 which were to be read into the proceedings. *fn1

The Judge then personally addressed Bartelt and asked whether he understood his right to a preliminary hearing. Upon Bartelt's answering in the affirmative, the Judge then asked Bartelt whether he wished to waive that right. Upon again receiving an affirmative answer, Bartelt was bound over to the court for further proceedings.

The court, Judge Geraghty again presiding, then proceeded to the arraignment and asked Attorney Miller whether he waived the reading of the information. Miller stated he did. Bartelt was not asked whether he waived the reading of the information, and there was nothing in the record to show whether he had ever seen it.

The court then disposed of the guilty plea in a colloquy which was reproduced in about one and one-half pages of transcript. The court asked whether Bartelt understood the charges set forth in the information; Bartelt said, "Yes." In response to the court's question, Bartelt stated he wished to plead guilty. The court asked whether Bartelt understood he had the right to a trial by jury, at which the state would have to prove all the facts in the information beyond a reasonable doubt and that by entering a plea of guilty Bartelt waived the right to require such proof. Bartelt responded, "Yes." The court stated that, if the case went to trial, Bartelt could call witnesses and could testify in his own behalf and that, by entering a guilty plea, Bartelt waived those rights. Bartelt responded, "Yes."

The prosecutor then asked whether the defendant would stipulate that "a factual basis can be found in the facts alleged in the complaint and information." Attorney Miller responded, "So stipulated." The court, then addressing Bartelt directly, stated, "You have discussed this matter with your attorney?" The defendant responded, "Yes, I have." The court's final question was, "And now freely and voluntarily enter a plea of guilty to the charge?" Bartelt answered, "Yes."

Thereupon, the trial Judge found him guilty, withheld sentence, and placed the defendant on probation for one year on the condition that full restitution be made on the check involved and on any other outstanding checks. Bartelt was informed by the Judge at the close of the hearing that, "If you don't comply with the conditions of probation, you can be brought back into this court for sentencing."

Subsequently the defendant's probation was extended, and that probation was later revoked. The extension of the probation period is challenged, but because we find the underlying plea of guilty was defective and we set aside the conviction, we do not explore the defendant's challenge to the extension of probation. Eventually, because of additional probation violations, Bartelt appeared before Judge Skow, circuit Judge of Racine county, for sentencing on the 1975 forgery charge. On December 27, 1979, Judge Skow sentenced Bartelt to a ten-year term of imprisonment but stayed the imposition of the sentence and again placed Bartelt on probation. The imposition of this second term of probation on the same charge is also challenged; but again, because we look directly to the underlying guilty plea, we do not consider the propriety of the Judge's placing Bartelt on probation the second time for the same offense. Eventually this second probation was revoked, and the defendant is now serving a ten-year term at the Wisconsin State Prison at Waupun.

The appeal in this case is from the denial of Bartelt's motion for post-conviction relief pursuant to sec. 974.06, Stats. The motion was brought to attack the underlying guilty plea on the claim that the plea of guilty entered on November 24, 1975, was involuntary and unknowing and in violation of the defendant's right to due process. The motion was founded on the allegation that the trial court, at the time of taking the plea, failed to advise the defendant of the penalty which could be imposed and that his attorney did not inform him of the maximum penalty. In addition, it was claimed that the trial court failed to tell Bartelt that his guilty plea waived the fifth and sixth amendment rights to remain silent and to confront his accusers. All of these alleged deficiencies in the taking of the guilty plea were stated as reasons to withdraw the plea on the ground that a finding of guilty under such circumstances constituted a manifest inJustice. See, State v. Reppin, 35 Wis. 2d 377, 151 N.W.2d 9 (1967). The motion pursuant to sec. 974.06, Stats., also addressed alleged error in the extension of the period of probation and the subsequent reimposition of a term of probation. As stated above, we do not concern ourselves with those arguments on this review.

The hearing on the post-conviction motion verified the fact that Bartelt met his attorney only moments before he entered the plea of guilty. Bartelt said that all Attorney Miller told him was that, if Bartelt pleaded guilty, he would get probation. Bartelt testified that, the way he understood the matter, everything had already been worked out, so Miller did not discuss any other options with him.

On cross-examination Bartelt was shown the record, which recited that, at the time of the initial appearance before a court commissioner, the district attorney told Bartelt that he was charged with forgery, which was punishable by a fine of not more than $5,000 or imprisonment of not more than ten years, or both. Bartelt, who was not represented by counsel at the time of the initial appearance, stated he did not recall being advised of the maximum penalty at the initial hearing and that, at the time of the sentencing hearing, he did not know what the penalty could be. He also stated that, prior to the entry of the plea, he was unaware of his right to cross-examine the state's witnesses. Thus, the hearing for post-conviction relief pursuant to sec. 974.06, Stats., revealed that the defendant was not informed that his guilty plea would waive the right against self-incrimination and the right to cross-examine state witnesses; nor was he told at the time of the guilty plea what the maximum penalty could be. *fn2

We have held that, for a plea of guilty to be constitutionally acceptable, it is required that a defendant knowingly, with full understanding of the consequences, waive various specifically stated constitutional rights, including the right against self-incrimination and the right to confront witnesses and to cross-examine them. Also, it is required that a defendant ...


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