HALLOWS, C. J.
Several assignments of error are made, but none of them has sufficient merit to require a reversal.
On October 12, 1968, C. J. Koller, a River Falls car dealer, sold a Pontiac automobile to Floyd D. Tew, who at the time traded in his 1963 Oldsmobile and signed a conditional sales contract. The contract called for a down payment of $200, which was not paid. Nor was the sales tax paid. However, Koller gave possession of the car to Tew who was to return in a few days and make the payment and sign other papers involved in the transaction. Tew never came back but left Wisconsin and went to Minnesota and subsequently to Idaho. Koller did not file the conditional sales contract but did discount it with the bank. In January of 1969, he complained
As there was some controversy over the identity of Tew, the prosecutor in his opening remarks at the trial stated the evidence would show Tew had refused to be fingerprinted. The opening arguments were not recorded but defense counsel referred to the statement in a written motion after verdict. The prosecutor admitted making the remarks and the trial court ruled on the propriety of the state's argument and denied the motion. The remarks are sufficiently in the record for this court to consider the issue and to distinguish this case from cases wherein this court has refused to reach the issue of the impropriety of remarks of counsel because the only indication of the substance of the remarks was in an appellant's affidavit submitted in support of a post-trial motion or as part of an appellate brief.
On the merits, the remark cannot be analogized to a comment by a prosecutor concerning a defendant's invocation of his fifth amendment privilege against selfincrimination. This, of course, the prosecutor cannot do. Griffin v. California (1965), 380 U.S. 609, 85 Sup. Ct. 1229, 14 L. Ed. 2d 106; State v. Spring (1970), 48 Wis.2d 333, 179 N.W.2d 841. However, a defendant has no fifth amendment right to refuse to be fingerprinted, as the fifth amendment privilege extends only to oral testimonial activity, and not to fingerprinting, photographing, or measuring the defendant. Schmerber v. California (1966), 384 U.S. 757, 86 Sup. Ct. 1826, 16 L. Ed. 2d 908; see also: United States v. Wade (1967), 388 U.S. 218, 87 Sup. Ct. 1926, 18 L. Ed. 2d 1149; California v. Byers (1971), 402 U.S. 424, 91 Sup. Ct.
Here, the prosecutor had intended to put evidence in the record to substantiate his claim Tew had balked at fingerprinting but forgot to do so.
Tew contends the court erred in instructing the jury that the failure to file the security agreement was irrelevant. The court instructed the jury by reading Wis J I—Criminal 1470, which relates to the crime charged in sec. 943.25 (2) (a), Stats.
It is also argued Koller was contradictory concerning the documents and there are various discrepancies in the sales contract which warranted additional instructions on the nature of a valid security agreement. While Koller was possibly confused as to terminology, as he used "security agreement" to mean the forms used and necessary for perfecting his security interest and the term "conditional sales contract" when referring to the
Tew was arrested in October, 1969; the information was filed December 3, 1969; the trial was had and a sentence pronounced on February 24, 1970. During this time Tew spent 112 days in custody and contends he should receive credit for this period of detention in his sentence. The trial court gave him the maximum sentence of two years and thus it is apparent the trial court did not credit his sentence with the time spent in jail awaiting trial. The American Bar Association's Standards Relating to Sentencing Alternatives and Procedures (Approved Draft, 1968), at p. 186, sec. 3.6 (a), provides that a mandatory credit should be given for pretrial detention.
In a somewhat analogous situation in State v. Leonard (1968), 39 Wis.2d 461, 159 N.W.2d 577, we stated credit for interim detention on reprosecution was a matter of fair play as well as statutory requirement (sec. 958.06 (3) (b), Stats.).
In Farley v. State (1971), 50 Wis.2d 113, 116, 183 N.W.2d 33, in a dissenting opinion, this author and Mr. Justice WILKIE favored adopting the ABA Standard but applying it as a relevant factor in the trial judge's exercise of discretion in sentencing and not as a mandatory credit. This approach was a recognition of what many trial judges now do in Wisconsin.
While we do not now adopt this ABA Standard as a mandatory credit in sentencing, we do recognize the principle that incarceration prior to sentencing is a proper factor to be taken into consideration by the sentencing judge. Some of the factors this court has recognized as properly considered in sentencing have been: A past record of criminal offenses, Brown v. State (1971), 52 Wis.2d 496, 190 N.W.2d 497; a history of undesirable behavior patterns, Triplett v. State (1971), 51 Wis.2d 549, 553, 187 N.W.2d 318; Deja v. State (1969), 43 Wis.2d 488, 168 N.W.2d 856; the defendant's personality, character and social traits, Waddell v. State (1964), 24 Wis.2d 364, 368, 129 N.W.2d 201;
In this case the court imposed the maximum two-year sentence. The presentence report showed Tew had previously been convicted of grand larceny, abandonment, concealing mortgaged property, and had served three years in the federal penitentiary at Leavenworth for transporting forged securities in interstate and foreign commerce. Tew's attorney pointed out to the court the length of defendant's pretrial incarceration and asked that it be considered. The court stated in passing sentence it had considered the arguments of counsel as well as the presentence report. The trial court did take the presentence incarceration into consideration and decided the maximum sentence was appropriate. We find no abuse of discretion.
Tew asked this court to reappoint his trial attorney as his appellate counsel; the court did so. He now challenges the competency of appointed counsel, but we find no merit in this contention. The complaint is not with the work of the counsel at the trial but with the delay of counsel during the appellate process. It is quite true, our clerk sent several sixty-day letters reminding counsel his progress reports were overdue. But his delay did not affect the quality of the brief. Tew has been adequately represented on this appeal, although the promptness of counsel's work on appeal leaves much to be desired. This case does point up, however, the need for appointed counsel to expeditiously perform the responsibilities under appointment by this court for indigents if he is to avoid the criticism of his client and of this court.
By the Court.—Judgment affirmed.
"(2) Whoever, with intent to defraud, does any of the following may be fined not more than $1,000 or imprisoned not more than 2 years or both:
"(a) Conceals, removes or transfers any personal property in which he knows another has a security interest; or . . ."
"(a) Credit against the maximum term and any minimum term should be given to a defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. This should specifically include credit for time spent in custody prior to trial, during trial, pending sentence, pending the resolution of an appeal, and prior to arrival at the institution to which the defendant has been committed."
See also: Model Penal Code, sec. 7.09 (American Law Institute, 1962), providing credit for pretrial or post-trial detention.