McKNIGHT v. STATE, 49 Wis.2d 623 (1971)

182 N.W.2d 291

McKNIGHT, Plaintiff in error, v. STATE, Defendant in error.

Supreme Court of Wisconsin.
No. State 98.Argued December 4, 1970. —
Decided January 5, 1971.

ERROR to review an order of the circuit court for Milwaukee county: HERBERT J. STEFFES, Circuit Judge Affirmed.

Facts.
Plaintiff in error, Lee McKnight, hereinafter termed defendant, was charged with two counts of armed robbery. On January 22, 1968, the defendant entered pleas of guilty. At the hearing on the pleas of guilty, the

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defendant’s record of juvenile court appearances and time spent in juvenile correctional institutions was presented to the court. At the hearing the defendant’s attorney examined the defendant as to the nature and cause of his juvenile court record. Additionally, the trial court asked the defendant certain questions concerning his juvenile record. The trial court accepted the pleas of guilty and, after considering the gravity of the crimes involved and the defendant’s prior experience as a juvenile, sentenced him to seven years on each charge, the sentences to run concurrently.

On January 21, 1969, the defendant moved the trial court for permission to withdraw the plea of guilty and for a new trial. On July 1, 1969, by order of the trial court part of the juvenile record of the defendant was ordered expunged, in compliance with the mandate of the Gault Case.[1] On September 16, 1969, the motions for withdrawal of plea and new trial were denied. Defendant appeals.

[1] In re Gault (1967), 387 U.S. 1, 87 Sup. Ct. 1428, 18 L.Ed.2d 527.

For the plaintiff in error there was a brief by Stanley P. Gimbel and Gimbel, Gimbel Boyle, all of Milwaukee, and oral argument by Stanley P. Gimbel.

For the defendant in error the cause was argued b Lee Edward Wells, assistant district attorney of Milwaukee county, with whom on the brief were Robert W. Warren, attorney general, and E. Michael McCann, district attorney.

ROBERT W. HANSEN, J.

Here, as in a very recent case raising the identical issue,[2] we hold that “. . . the juvenile record of the defendant, as presented, was properly

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before the court as such evidence of a pattern of behavior,”[3]
and “. . . find no error in the trial court being informed of defendant’s prior contacts with juvenile authorities, even though resulting commitments were subsequently set aside.”[4] It is true that the information as to prior juvenile experiences reached the trial court in Neely as part of a presentence report rather than, as here, by testimony during the hearing on the guilty plea. While a presentence report may throw additional light on a defendant’s total juvenile behavior pattern, we would not require that evidence of a behavior pattern be filtered through a presentence report before it can be properly considered by a sentencing court. Neely controls and requires affirmance.

By the Court. — Order affirmed.

[2] Neely v. State (1970), 47 Wis.2d 330, 177 N.W.2d 79. (See also: Neely v. Quatsoe (E. D.C. Wis. 1970), 317 F. Supp. 40, 42, denying writ of habeas corpus, stating: “. . . the trial judge, before sentencing, was entitled to inquire as to the youth’s personal background, including his previous attendance at correctional institutions.”)

[3] Id. at page 335. (See also: Waddell v. State
(1964), 24 Wis.2d 364, 129 N.W.2d 201; Deja v. State (1969), 43 Wis.2d 488, 168 N.W.2d 856.)

[4] Id. at page 336. (See also: Waddell v. State, supra, footnote 3, at page 368, holding “The prosecuting attorney may properly use information relating to complaints of other offenses in his argument on sentence. . . .”) (Emphasis supplied.)