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September 13, 1983


Appeal from an order of the Circuit Court for Green Lake County: Andrew P. Cotter, Judge.

Petition to Review Denied.

Scott, C.j., Voss, P.j., and Brown, J.

The opinion of the court was delivered by: Voss

Daniel Charles Lukasik was charged with first-degree murder. After entering a plea of guilty, he was convicted and sentenced. Subsequently, Lukasik filed a sec. 974.06, Stats., motion to vacate the judgment of conviction. Lukasik now appeals from the circuit court order denying his motion.

The notable issue in this case is the ineffective counsel argument. The general rule in cases involving ineffective assistance of counsel is that the subject counsel be notified of and be present at the hearing where counsel's competency is questioned so that he or she may explain prior actions. In this case, prior counsel has passed away, and there is no way to examine counsel's prior actions. Therefore, we must decide the requisite burdens of proof and standards of review under these facts.

Lukasik pled guilty to first-degree murder. A guilty plea to this offense is highly unusual. Lukasik claims that although he killed his girlfriend, Julie Hinze, he did not do it intentionally and argues two points. First, his attorney did not adequately explain intent to kill or adequately question his belief that he intended to kill Julie Hinze. Second, the trial court did not adequately explain the element of intent.

On the evening of March 28, 1978, Daniel Lukasik went to see Reverend Cletus Kramer, pastor of the United Methodist Church in Berlin. Lukasik informed Pastor Kramer that Julie Hinze, his girlfriend, was dead. Pastor Kramer advised Lukasik to contact the legal authorities. Officer Rodencal was then contacted. Rodencal arrived at the church and conversed with Lukasik. Before giving any Miranda warnings, Rodencal asked if Julie Hinze was still alive; Lukasik answered that she was not. Lukasik was then informed of his rights. After being so informed, Lukasik told Rodencal that he had shot his girlfriend and that she was at his apartment. Lukasik then gave Rodencal his keys to his apartment.

Officer Rodencal called for support to transport Lukasik to the sheriff's department. Deputy Wirth was dispatched and took Lukasik into custody. Wirth did not give Lukasik Miranda warnings because he was told that Lukasik had been informed of his rights and that Lukasik understood them. While in the squad car, Lukasik made several voluntary statements to the effect that he shot Julie Hinze.

In the meantime, Officer Rodencal had gone to Lukasik's apartment. Rodencal, in his police report, indicated that the door was unlocked, although he later stated that it may have been locked. Officer Rodencal and Sheriff Rasmussen entered and discovered Julie Hinze's body.

After Lukasik had arrived at the Green Lake County Sheriff's Department, he was again given Miranda warnings and interviewed by Officers Bruendl and Rodencal. The law enforcement officials present stated that Lukasik, at that time, again admitted to intentionally killing Julie Hinze.

Lukasik was charged with first-degree murder. The court appointed Attorney Frank Lisheron to represent Lukasik. After his arraignment, a plea of not guilty and not guilty by reason of mental disease or defect was entered.

The day before the trial, Lukasik called Attorney Lisheron and told him he wished to change his plea to guilty. Subsequently, Lukasik appeared with his attorney before Judge Jerold Murphy. Judge Murphy informed Lukasik that the first-degree murder charge carried a mandatory life sentence. The court also stated that Lukasik would be pleading guilty to intentionally causing the death of Julie Hinze. At that time, Lukasik stated he was pleading guilty due to his free choice. He was then informed of the constitutional rights he was waiving. Next, Attorney Lisheron told the court he believed the plea was voluntary and that Lukasik understood the nature of the charge. The court found the plea to have been voluntarily and intelligently made. On June 13, 1978, Lukasik was found guilty and was sentenced to life imprisonment.

On June 19, 1981, Lukasik filed a sec. 974.06, Stats., motion in Green Lake County Circuit Court. Lukasik's motion papers alleged that he never told anyone he intentionally meant to shoot Julie Hinze. He also claimed language to that effect in his statement given at the Green Lake County Sheriff's Department was untrue and incorrect. Furthermore, Lukasik alleges that he told his attorney about the defects in the statement, but it was not pursued by Lisheron, nor did Lisheron explain how to best challenge the statement. Lukasik also alleged that he did not read the final version of the statement, and intent was never explained to him by any of the officers.

He further claims his unawareness of the necessity to find intent to murder was not clarified by the trial court when he entered his plea of guilty. In particular, Lukasik alleges that the element of intent was never fully explained to him by the court. Lukasik also maintains that his attorney did not explain to him, although he so requested, the details of the element of intent. Furthermore, he contends no explanation by counsel was given regarding the availability of any defenses on the issue of intent or explanations as to lesser charges of second-degree murder or manslaughter. Lukasik also complains his attorney did not discuss trial strategy or ...

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