McKnight v. State , 49 Wis. 2d 623 ( 1971 )

49 Wis. 2d 623 (1971) 182 N.W.2d 291

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

No. State 98.

Supreme Court of Wisconsin.

Argued December 4, 1970. Decided January 5, 1971.

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 by 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 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.

NOTES

[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 Fed. 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.)