State v. Johnson
State v. Johnson
Opinion of the Court
Is asportation an element of the crime of armed robbery when the property at issue is an automobile? Based on the Wisconsin Supreme Court's holding in Moore v. State, 55 Wis. 2d 1, 197 N.W.2d 820 (1972), and our own decision in State v. Grady, 93 Wis. 2d 1, 286 N.W.2d 607 (Ct. App. 1979), we hold that asportation is a necessary element to the crime of completed armed robbery. See § 943.32(1)(b) & (2), Stats.
I. Background.
Robert Johnson pleaded guilty to armed robbery.
The State charged Johnson with armed robbery and he waived his preliminary hearing. At Johnson's plea hearing, the assistant district attorney acknowledged, "Apparently the car stalled or shut off or would not start. Mr. Johnson could not get away with the car." Johnson pleaded guilty to armed robbery and the trial court used the complaint and the plea hearing as a factual basis for the guilty plea. The trial court then sentenced Johnson and entered the judgment of conviction.
The trial court denied the postconviction motion, ruling that when Johnson "signed the Guilty Plea Questionnaire and Waiver of Rights form, he gave up his right to challenge the sufficiency of the complaint and/or information," — that is, Johnson waived his right to challenge the sufficiency of the complaint.
II. Analysis.
On appeal, Johnson renews his argument that there was no factual substrate for his guilty plea
Whether to grant a motion for withdrawal of a plea lies in the sound discretion of the trial court, which we will not upset absent an erroneous exercise of discretion. State v. Spears, 147 Wis. 2d 429, 434, 433 N.W.2d 595, 598 (Ct. App. 1988). "A proper exercise of discretion consists of the court applying the relevant law to the applicable facts in order to reach a reasonable conclusion." State v. Jackson, 188 Wis. 2d 187, 194, 525 N.W.2d 739, 742 (Ct. App. 1994). In this case, the relevant law provides that a post-sentencing motion for withdrawal of a guilty plea should only be granted when necessary to correct a manifest injustice. See State v. Harrell, 182 Wis. 2d 408, 414, 513 N.W.2d 676, 678 (Ct. App.), cert. denied, 115 S. Ct. 167 (1994).
Before a trial court can accept a guilty plea it must " 'personally determine that the conduct which the defendant admits constitutes the offense ... to which the defendant has pleaded guilty.'" State v. Harrington, 181 Wis. 2d 985, 989, 512 N.W.2d 261, 263 (Ct.
Johnson solely challenges the factual substrate for one element of the crime of completed armed robbery — asportation. Section 943.32(l)(b) & (2), STATS. (1991-92), provides, in relevant part:
(1) Whoever, with intent to steal, takes property from the person or presence of the owner by either of the following means is guilty of a Class C felony:
(b) by threatening the imminent use of force against the person of the owner or of another who is present with intent thereby to compel the owner to acquiesce in the taking or carrying away of the property.3
(2) Whoever violates sub. (1) by use or threat of use of a dangerous weapon or any article used or fashioned in a manner to lead the victim reasonably to believe that it is a dangerous weapon is guilty of a Class B felony.
The State argues that the asportation element "should not apply where the property taken is an automobile," positing: "Unlike the coin purse involved in Moore or the stolen radio in Grady, a motor vehicle does not necessarily have to be moved in order for a thief to exercise control over it."
Accordingly, we must review whether the trial court determined that the facts in the complaint and plea hearing established that Johnson's conduct constituted the pleaded offense of armed robbery. Harrington, 181 Wis. 2d at 989, 512 N.W.2d at 263. The State concedes that the trial court never addressed the question of whether a factual basis existed for the asportation element of the crime. Further, the State concedes that neither the complaint nor the plea hear
III. Summary.
Based on the prior holdings of the Wisconsin Supreme Court and the Court of Appeals, we must reverse Johnson's judgment of conviction for armed robbery and the order denying his postconviction motion. We remand the matter to the trial court with directions to allow Johnson to withdraw his plea to the armed robbery charge. The remainder of the judgment of conviction is affirmed.
By the Court. — Judgment and order affirmed in part; reversed in part; and cause remanded with directions.
Johnson also pleaded guilty to attempted armed robbery, while concealing his identity, as a party to a crime, based on other conduct. He does not challenge his conviction on this count; thus, we need not discuss it.
The State concedes the trial court erred in ruling that Johnson waived his right to challenge his guilty plea to the armed robbery. We agree. See State v. Mendez, 157 Wis. 2d 289, 294, 459 N.W.2d 578, 580 (Ct. App. 1990) (rejecting judicial estoppel in identical situation to case at bar: "The [S]tate's argument creates a scenario in which a defendant can plead guilty to an offense which was not committed. We conclude that basic principles of justice should not permit a conviction in such a circumstance, despite defendant's guilty plea.").
Johnson allegedly committed the armed robbery in February 1994 and therefore the 1991-92 statutes were in effect. The legislature subsequently amended § 943.32, STATS., to make the statutory language gender-neutral. 1992 Wis. Act 486, §§ 608 & 609.
The roots of the asportation requirement reach to English Common Law:" 'There must not only be a taking, but a carrying away; cepit et asportavit [He took and carried away.] was the old law-Latin.'" Berry v. State, 87 Wis. 2d 85, 88, 273 N.W.2d 376, 378 (Ct. App. 1978) (quoting 4 William Blackstone, Commentaries 231) (bracketed materials added), rev'd on other grounds, 90 Wis. 2d 316, 280 N.W.2d 204 (1979), cert. denied, 444 U.S. 1020 (1980).
We must additionally note, however, that a distinguished commentator on Wisconsin law emphasized after the 1956 revision of the Wisconsin Criminal Code that asportation was not a necessary requirement under § 943.32, Stats.:
The taking that the statute requires is dealt with in the law of theft. As the critical behavior which the statutes desires to preclude is not so much the taking, but the accompanying circumstances by which the taking is accomplished, this provision is unlikely to give difficulty. It is sufficient if there is some unjustified assertion of control. ... To accomplish the purpose of the statute, the word "takes" may be construed broadly within these*711 limits. Ancient restrictions such as the necessity that the property be "carried away" as well as taken will not obtain.
Gordon B. Baldwin, Criminal Misappropriations in Wisconsin: Part II, 44 MARQ. L. Rev. 430, 447 (1961).
The Wisconsin Supreme Court in Moore v. State, 55 Wis. 2d 1, 197 N.W.2d 820 (1972), construed § 943.32, to include an asportation element, and thus, did not follow this commentary. Hence, we must follow the supreme court's construction of the robbery statute.
Indeed, the dissent's alleged " 'common-sense' construction," focusing on whether an assailant "takes control of the car," see dissent at 714, downplays the supreme court's asportation requirement in Berry that there "must be a movement away from the area where the [item] was intended to be." Berry, 90 Wis. 2d at 530, 280 N.W.2d at 211. In essence, the dissent construes the statute in a manner consistent with pre-Moore commentary. See Baldwin, supra (focusing on "unjustified assertion of control"). We, instead, follow the supreme court's holding after Moore. Thus, where there is no evidence that Ball's automobile ever moved, even slightly, this court must conclude that there is an insufficient factual predicate for Johnson's guilty plea.
The State cites to People v. Alamo, 315 N.E.2d 446 (N.Y. 1974), as an example of a jurisdiction that has recognized such an exception.
Dissenting Opinion
(dissenting).
The majority notes that in Berry v. State, 90 Wis. 2d 316, 280 N.W.2d 204 (1979), cert. denied, 444 U.S. 1020 (1980), the supreme court declared that "[t]he asportation requirement should be considered in light of the statute's general purpose to proscribe the exercise of unauthorized control over the movable property of another." Id. at 330, 280 N.W.2d at 211. The majority reasonably concludes that although Berry was referring to the theft statute, "this consideration should also apply to the asportation element of the armed robbery statute." Majority op. at 711.1 agree. Therefore, I also would suggest that we consider the next sentence of Berry." 'Carrying away' must be given a practical, common-sense construction." Berry, 90 Wis. 2d at 330, 280 N.W.2d at 211.
Applying a "common-sense construction," I conclude that where an armed assailant forces an owner out of his or her car and takes control of the car, the assailant has committed armed robbery. As Sancho Panza once explained, "Whether the stone hits the pitcher or the pitcher hits the stone, it's going to be bad for the pitcher." IRVING JACOBSON, A Little Gossip, on Man OF La Mancha (Capp Records, Inc. 1966). Similarly, whether an armed robber takes the property away from the victim, or forces the victim to take himself or herself away from the property, it's going to be bad for the victim.
Accordingly, I respectfully dissent.
Reference
- Full Case Name
- State of Wisconsin, Plaintiff-Respondent, v. Robert Johnson, Defendant-Appellant
- Cited By
- 6 cases
- Status
- Published