David Frank SPANBAUER, Petitioner-Appellant, v. John C. BURKE, Warden, Wisconsin State Prison, Respondent-Appellee, 374 F.2d 67

HASTINGS, Chief Judge. David Frank Spanbauer has appealed from an order of the district court, entered after a full evidentiary hearing, denying his petition for a writ of habeas corpus. On February 29, 1960, Spanbauer, who-waived counsel at his arraignment and later at time of trial, was convicted in a Wisconsin state court following his pleas of guilty to ten separate counts of an information charging him with armed robbery (two counts), rape, conduct regardless of human life, burglary, theft, attempted rape and armed burglary (three counts), all committed within a period of three to five weeks.

While Spanbauer pleaded guilty, a. hearing was held, witnesses appeared, testimony was taken and copies of statements and confessions by Spanbauer to the police were admitted into evidence. At the end of the hearing, Spanbauer indicated that the testimony taken was-a true and correct account of the various crimes contained in the information. Spanbauer was sentenced to an aggregate of 70 years imprisonment for all but the sex crimes.

Sentencing on the sex crimes was postponed until the Wisconsin State Department of Public Welfare, in whose custody Spanbauer was. placed for examination, reported whether he was a fit subject for commitment for treatment at the Wisconsin sex deviate-facility pursuant to sec. 959.15, Wis. Stats. On May 3, 1960, following that report, Spanbauer was committed to the-sex deviate facility for treatment.

On appeal, it is argued that Spanbauer’s waiver of counsel was ineffectual, because the trial court failed to advise him of the possibility of appointed counsel, of the range of allowable punishments and of possible defenses and mitigating circumstances. It is also urged ■that Spanbauer was deprived of his right to counsel at the time of sentencing, when Spanbauer gave some indication to a prosecuting attorney that he desired counsel. On February 15, 1960, Spanbauer was taken into police custody in Sheboygan, Wisconsin on charges of carrying a concealed weapon and petty larceny.

Spanbauer admitted committing a burglary in Wauwatosa, Wisconsin, and two police officers from that city took custody of .Spanbauer on February 18 and returned him to Wauwatosa. These detectives testified that they advised Spanbauer of his right not to talk and of his right to an attorney, either retained or appointed. On February 19, Spanbauer was questioned by police officers. He was questioned again the following day after bond had been set. In the afternoon of February 20, after having been moved to the Milwaukee County Jail, he gave a voluntary statement confessing crimes of which he had not been suspected.

On February 21, he was questioned again by other officers, and gave two further statements. Brown County district attorney Grant, the prosecuting attorney, testified he had a conversation with Spanbauer in his cell on February 24, 1960, that he explained to him procedures relating to arraignment and preliminary hearing; the right of counsel, including appointment of counsel; the plea of not guilty; and at least some of the charges. Grant further indicated to Spanbauer that he was likely to get a “good jolt” or sentence, although he apparently did not indicate the penalties for specific offenses.

On February 24, Spanbauer waived preliminary examination and appointment of counsel before the municipal judge as magistrate at Green Bay, and pleaded guilty to three counts of the information. The colloquy relating to appointment of counsel is set out in the margin. Thereafter, the various charges against Spanbauer were consolidated for trial in one place, the crimes having occurred in different counties.

On February 29, in the Municipal Court for Brown County, Spanbauer waived preliminary examination on seven additional counts of the information, pleaded guilty to each of the ten counts and waived counsel on the seven additional counts. After a hearing, Spanbauer was convicted and sentenced on eight counts. On May 3, when Spanbauer was returned to court for sentencing following the evaluation under the sex deviate law, Spanbauer informed Grant that he desired counsel to represent him.

Although there is conflict in the evidence in the record, it appears that this request was not transmitted to the judge, but that Spanbauer was told to make the request to the judge himself, which he did not do. Spanbauer’s petition for a writ of habeas corpus to the Wisconsin Supreme Court was denied without opinion on September 11, 1964. Following a habeas corpus hearing, the federal district court found that there had been explained to Spanbauer the detailed procedures relating to appointment of counsel and the fact that counsel would be appointed for him if he were indigent.

The record discloses that as a young adolescent, Spanbauer was arrested four times for purse snatching, burglary, disorderly conduct and window peeping. Entering the Navy at age 17, he was given a bad conduct discharge for repeated AWOL. Psychiatric treatment was recommended. Shortly after his discharge from the Navy, he committed the criminal acts for which he was convicted. Spanbauer’s mental examination reports disclosed that he was socially deviant in a fashion for which mental treatment was deemed appropriate.

He was described as “sociopathic”, “very disturbed”, “extremely dangerous” and characterized as being impulsive, having poor judgment, being severely withdrawn and having a great potential for “an acute psychotic reaction.” By and large, his thinking and intelligence were not found to be impaired. Without further detailing the impressions and findings in the reports, it is sufficient to state that they are of such a nature as to raise the question of Spanbauer’s general competency.

Although the federal district court did not discuss in detail the question of Spanbauer’s competency with respect to his waiver of counsel, it found his mental capacity and emotional state were not so impaired as to render his waiver of counsel invalid. Although the record is not completely clear as to exactly what Spanbauer was told prior to his trial, for purposes of appeal, we shall assume that he was not informed of the range of allowable punishments and of possible defenses or mitigating circumstances. There is no question that under the Sixth Amendment, Spanbauer was entitled to counsel in the state courts.

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Furthermore, state defendants are guaranteed assistance of counsel under the Fourteenth Amendment, unless it is intelligently and understandingly waived. Carnley v. Cochran, 369 U.S. 506, 512-513, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). Waiver of counsel standards as articulated in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), have been said to be applicable to asserted waivers of the right to counsel in state criminal procedings. Carnley v. Cochran, supra, at 515, 82 S.Ct. 884.

In Zerbst, the Supreme Court stated: “The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances, surrounding that case, including the background, experience, and conduct of the accused.” Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023.

In Carnley the Court clarified what must be shown of record on the question of waiver under a petition for a writ of habeas corpus: “The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.” Carnley, supra, 369 U.S. at 516, 82 S.Ct. at 890.

Thus, a federal court in coming to a decision after a hearing on a writ of habeas corpus alleging invalid waiver of counsel is, at the very least, to make a determination whether the accused intelligently and understandingly rejected counsel by applying the ad hoc test of Zerbst. But we are faced with the further question whether the failure of the district court to enforce federal waiver standards as found in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), may lead to an undermining of the rights of indigent defendants to appointment of counsel as expressed in Gideon, supra.

In Von Moltke, the Supreme Court set out federal standards for the duty of a trial judge in determining whether a waiver of counsel has been intelligent and competent. “To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility.

To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.” Von Moltke, supra, at 723-724, 68 S.Ct. at 323.

It is urged upon us that these standards fully apply in the determination of a state prisoner’s intelligent and understanding waiver of counsel. We may sharpen the issue even more by noting that in Von Moltke, as in the instant case, the defendant received information, advice and counsel about the indictment, about the legal questions involved in a trial and other matters from government agents.

With respect to that fact, the Court said: “The Constitution does not contemplate that prisoners shall be dependent upon government agents for legal counsel and aid, however conscientious and able those agents may be.” Von Moltke, supra, at 725, 68 S.Ct. at 324.

The Wisconsin Supreme Court has recognized the trial judge’s responsibility and has established standards somewhat similar to those found in Von Moltke But, however close those standards may seem to those in Von Moltke, we must assume that since the Wisconsin Supreme Court refused to have a hearing on Spanbauer’s petition for habeas corpus, it was satisfied that its own standards had been followed.

Thus, on our assumptions from an unclear record that Spanbauer was not informed of specific sentences, possible defenses or mitigating circumstances, it is clear that the Wisconsin standards are not as comprehensive or strict as the federal standards, at least as expressed in Von Moltke. It is also clear that the federal district judge in coming to a decision on Spanbauer’s habeas corpus petition, assumed that the Von Moltke standards did not fully apply. In order to resolve the question raised, we have undertaken a brief review of federal decisions in this area.

It appears that federal courts have looked to the substance of the Von Moltke formulations, and not to its formulas. See, e. g., Johnson v. United States, 5 Cir., 344 F.2d 401, 404 (1965); United States v. Washington, 3 Cir., 341 F.2d 277, 284-285 (1965), cert. den. sub nom. DeGregory v. United States, 382 U.S. 850, 86 S.Ct. 96, 15 L.Ed.2d 89 (1965); Verdon v. United States, 8 Cir., 296 F.2d 549, 553 (1961), cert, den., 370 U.S. 945, 82 S.Ct. 1590, 8 L.Ed.2d 811 (1962); Hinton v. United States, 5 Cir., 232 F.2d 485, 487 (1956).

Von Moltke has been taken to require a hearing or a searching inquiry by the trial judge, Coates v. United States, 106 U.S.App. D.C. 389, 273 F.2d 514, 516 (1959); Arnold v. United States, 4 Cir., 271 F.2d 440, 442 (1959); or that the trial judge be convinced the defendant had “a broad understanding of the whole matter”, United States v. Kniess, 7 Cir., 264 F.2d 353, 356 (1959); or that “the accused fully understands the charges against him and the possible adverse consequences of not having counsel to represent him”, Smith v. United States, 5 Cir., 216 F.2d 724, 726 (1954).

Even when noting or expressing some of the Von Moltke standards, federal courts have failed to recite the remainder of them which would have been inconsistent with the result obtained in the case, a result reached by the application of the Zerbst standard, a knowing and understanding waiver. See United States v. Washington, supra; Hinton v. United States, supra.

Federal courts, noting, expressly or indirectly, that Von Moltke established guidelines for federal district courts respecting waiver of counsel, have nonetheless viewed the question of waiver of counsel as ultimately an issue, irrespective of the trial court’s fulfillment of its Von Moltke duties, of whether the accused knowingly and intelligently chose to waive counsel. See United States v. Smith, 4 Cir., 337 F.2d 49, 55 (1964), cert, den., 381 U.S. 916, 85 S.Ct. 1542, 14 L.Ed.2d 436 (1965); Post v.

Boles, 4 Cir., 332 F.2d 738, 742 (1964), cert, den., 380 U.S. 981, 85 S.Ct. 1346, 14 L.Ed.2d 274 (1965); Twining v. United States, 5 Cir., 321 F.2d 432, 434-435 (1963) ; Aiken v. United States, 4 Cir., 296 F.2d 604, 607 (1961); Starks v. United States, 4 Cir., 264 F.2d 797, 799 (1959).

Such applications as there have been of Von Moltke to state proceedings have not relied on the literal language or application of the Von Moltke standards, but upon the proposition that the trial judge has some duty to make an investigation into the circumstances to determine whether the petitioner had intelligently and competently waived his right to counsel. See McBee v. Bomar, 6 Cir., 296 F.2d 235, 237 (1961).

Even where it appears that a federal court may have applied both Zerbst and Von Moltke standards to proceedings in a federal court, the result has not been to vitiate the waiver, but to require a hearing in which the burden of proof to establish an invalid waiver is upon the defendant or petitioner. See Vellkey v. United States, 6 Cir., 279 F.2d 697 (1960); United States v. Wantland, 7 Cir., 199 F.2d 237 (1952); Taylor v. United States, 10 Cir., 193 F.2d 411 (1952); Cherrie v. United States, 10 Cir., 179 F.2d 94 (1949). Cf. United States v. Lester, 2 Cir., 247 F.2d 496 (1957); Sanders v.

United States, 5 Cir., 205 F.2d 399 (1953). See also Davis v. United States, 8 Cir., 226 F.2d 834 (1955). Contra, Shelton v. United States, 5 Cir., 242 F.2d 101 (1958), set aside on rehearing, 246 F.2d 571 (1957), revd., 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed. 2d 579 (1958). The only federal cases apparently using some part of the Von Moltke standard as controlling are those which also indicate an actual and gross unfairness in the failure to apply the standard. See Gannon v. United States, 6 Cir., 208 F.2d 772 (1953); Sanders v. United States, supra; Snell v. United States, 10 Cir., 174 F.2d 580 (1949).

Only a few federal courts have expressly considered the question whether Von Moltke or Zerbst standards are to be applied to the determination of waiver of counsel. In Collins v. United States, 8 Cir., 206 F.2d 918, 922 (1953), the court said: “In its ultimate analysis, it seems to us that the question here thus gets down to whether such a declaration as has been made by the Supreme Court in the case of Von Moltke v.

Gillies * * * is required to be read as intended to lay down as an absolute rule of law that no waiver of counsel can or will be permitted to exist unless the trial court has expressly made statement in the courtroom to a prisoner of his right to such assistance, or whether it is entitled to be read as rather being emphasizive of a precautionary and responsible rule of practice on the part of the trial judge, which ought as a protection to the prisoner to be scrupulously observed. “We do not believe that the Supreme Court meant to hold that jurisdiction cannot at all exist in a trial court to accept a plea of guilty or to impose sentence upon such a plea, unless the court has first made formal declaration from the bench of the prisoner’s right to the appointment and assistance of counsel and has engaged in supplementary inquiry, and that all sentences which have in the judicial informalities of the past half century or more been so pronounced must consequently be branded as legal nullities and void incarcerations, regardless of whether the prisoner in fact knew of his right to such appointment and whether he understandingly intended at the time to forego such assistance.

At least, we do not think that any such legal concept has heretofore obtained in the federal system. Always the question seems to have been regarded as being one of appraising, on all the probative elements and circumstances of each particular situation, whether as a matter of knowledge and intent on the part of the prisoner, there existed in fact a competent and intelligent waiver by him of the assistance of counsel in what he did — and the prisoner has been required to assume the unsuperficial burden of establishing and satisfying that no such waiver by him did in fact exist. Cf. Johnson v.

Zerbst * * In Aiken v. United States, supra, 296 F.2d at 607, the court expressly repeated and adopted the standards of Von Moltke for federal courts, but went on to state that the failure of a federal district court to perform its duties with respect to waiver of counsel does not of itself render the proceedings unconstitutional or invalidate them, for there was yet required a showing that the defendant did not understandingly waive his rights. Accord, Post v. Boles, supra; Starks v. United States, supra.

The fundamental right to counsel is not deprived an accused in a state court criminal proceeding if that court had accepted a waiver of counsel after a determination reflecting that under the particular facts and circumstances surrounding the case, including the background, experience and conduct of the accused, the waiver was made by the accused intelligently and understandingly, with knowledge of his right to counsel, even if indigent. Zerbst, supra; Camley, supra; Gideon, supra.

While allegations or a showing that the trial court did not make such a determination would prima facie establish a ground for a habeas corpus hearing, the burden on a petitioner who has affirmatively waived counsel is to show by a preponderance of the evidence that the waiver was not made intelligently or understandingly. Zerbst, supra; United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Moore v. State of Michigan, 355 U.S. 155, 161-162, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957).

A preponderance of the evidence is not created by allegations and a showing that the state court trial judge did not literally fulfill all elements of a formula describing his responsibilities for acceptance of waiver of counsel. Substance rather than form is the guiding criterion for reviewing courts. We recognize that Spanbauer’s commission, within a short time, of a series of related crimes, together with his background, general behavior and the reports of the psychiatrists and psychologists from the Wisconsin sexual deviate facility indicate that Spanbauer was mentally and emotionally disturbed.

But the fact of such disturbance does not itself require the conclusion of incompetency to waive counsel. It is not necessary to review the general question whether Spanbauer was or was not mentally disturbed. The only question for the federal district court was Spanbauer’s competence to waive counsel intelligently and understandingly. That question was one of the central issues in the full evidentiary hearing conducted by the federal district court in this case.

Following a thorough review of the record, and under the standard applicable in the assessment of the validity of a waiver of counsel in a state court proceeding, we conclude that the district court did not err in its findings that Spanbauer was advised of his right to counsel, even if indigent, and that he was competent to waive counsel. Spanbauer has not shown by a preponderance of the evidence that he did not waive counsel intelligently and understandingly. Assuming that Spanbauer did desire counsel at his sentencing on May 3, 1960, he did not communicate this to the court.

Furthermore, the fact that no further sentence was added on May 3, but rather commitment to the sex deviate facility for treatment, leads us to conclude that the district court did not err in finding no prejudice to Spanbauer in this respect. In conclusion, we find the record clearly shows that the federal district court granted and fairly conducted a full evidentiary hearing on Spanbauer’s habeas corpus petition. Spanbauer was ably represented by counsel at this hearing. We hold that, on the record before us, Spanbauer has not sustained his burden of proof. Spanbauer was represented on this appeal by Mr. L. C.

Hammond, Jr., a reputable member of the Milwaukee, Wisconsin bar pursuant to appointment by this court. We commend Mr. Hammond for his unusually excellent service rendered in this case. The judgment of the district court is affirmed. Affirmed. . “Now, Mr. Spanbauer, the Court has certain duties imposed upon it by law, and at this time the Court would like to discharge those duties. First of all, it is the duty of the Court to advise you that in each of the three counts contained in the complaint you are accused of committing the crime known as a felony.

A felony is a crime which is punishable by imprisonment in the State Prison. Therefore, in each of the three counts, if you are convicted, you will be convicted of a felony and each of the three counts is subject to a term of imprisonment. Do you understand, Mr. Spanbauer— “A. Yes, I do. —that all of these counts are felonies? And do you understand that on each count you would be subject, if convicted, to a term of imprisonment? “A. Yes, sir. “Now, the second duty imposed by law upon the Court is that you must be advised at this point that you are entitled to be represented by an attorney if you wish.

That is because you are accused of committing a felony. You have the privilege of being represented by a lawyer. If you would like to have a lawyer, a reasonable period of time will be allowed by the Court to make the necessary arrangements. On the other hand, if you feel that you do not want a lawyer in this case you can forego your privilege and give up your right to have an attorney. Is that clear to you, Mr. Spanbauer ? “A. Yes, sir. “Q. And what would you decide in this case? Do you want a lawyer, or do you prefer to go through the entire proceedings without a lawyer? “A. Without a lawyer. “Q.

You said without a lawyer? In other words, you do not want a lawyer in this case? “A. (The defendant responds by nodding his head in the affirmative.) “Now, Mr. Spanbauer, in view of the fact that you have said that you do not want a lawyer it is necessary that the Court ask you a few additional questions in order to determine that that is an intelligent decision on your part. Therefore, you are now asked by the Court first of all: What is the extent of your education ? How far did you go in school ? “A. Junior grade in high school. “Q. In other words, you were in the third year of high school? “A.

That’s right. “Q. Did you complete the third year? “A. No, I didn’t. “Q. Did you complete the sophomore year of high school? “A. Yes, I did. “Q. And part of the junior year? “A. Yes, sir. “Q. And was that at the Oshkosh public high school? “A. Yes, Your Honor. “Q. Have you had any experience in working? Have you held any type of job? “A. Yes, I have. “Q. What has been your usual type of employment? “A. Well, I only worked for a few days and that was under construction. “Q. Are you a single man? “A. Yes. “Q. I presume that you have given some thought to this question since your original apprehension? “A.

Yes, 1 have. “Q. And you have been told by probably the District Attorney of Brown County of your privilege of having an attorney? “A. I have, sir. “Mr. Grant: If the Court please, in order to clarify the record, I have advised Mr. Spanbauer this morning of the fact that he is entitled to counsel, and I told him that he has that right under the Constitution, and I explained the procedure to him quite thoroughly so that I think he understands. “Q. All right. And do you feel, Mr. Spanbauer, that you understand that choice of an attorney? “A.

Yes, I do. “And then the record may show that the defendant in this case has waived counsel and his waiver is now accepted by the Court as being an intelligent waiver of his right.” . State v. Strickland, 27 Wis.2d 623, 135 N.W.2d 295 (1965); State ex rel. Burnett v. Burke, 22 Wis.2d 486, 126 N.W.2d 91 (1964). . In Twining, without expressly so stating, the court appeared to treat Von Molthe as a case sui generis. Footnote 1 at 435 of 321 F.2d indicates that the court felt that Zerbst and not . Von Molthe was the controlling law even in federal cases. .

Respecting Von Moltke, however, the court of appeals said: “The record does not show that the district court complied with the requirements of the Von Moltke case * * * in making certain that the accused’s waiver of counsel was intelligently made. We would, however, be loath to reverse upon that ground alone in view of the movant’s unusual intelligence and obvious experience.” Skelton, 242 F.2d 101, 112 (1957). This statement seems to indicate that the Von Moltke standard is not by itself considered controlling in federal cases.