District IV/II

 


July 10, 2013


To:


Hon. Sarah B. OíBrien

Circuit Court Judge, Br. 16

215 South Hamilton, Room 6105

Madison, WI 53703

 

Carlo Esqueda

Clerk of Circuit Court

Room 1000

215 South Hamilton

Madison, WI 53703

 

Michael P. Finley

Assistant District Attorney

Room 3000

215 South Hamilton

Madison, WI 53703


Jefren E. Olsen

Asst. State Public Defender

P. O. Box 7862

Madison, WI 53707-7862

 

Gregory M. Weber

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857

 

Kody K. Johnson

802 Vernon Avenue, Apt. 1

Madison, WI 53714


 

You are hereby notified that the Court has entered the following opinion and order:

 

 

 

 

 

 

 

2012AP2439-CRNM

State of Wisconsin v. Kody K. Johnson (L.C. # 2011CF374)

 

 

 


Before Brown, C.J., Neubauer, P.J., and Reilly, J.

Kody Johnson appeals from a judgment convicting him of the unauthorized use of anotherís personal identifying information contrary to Wis. Stat. ß 943.201(2)(a) (2009-10).[1] Johnsonís appellate counsel filed a no-merit report pursuant to Wis. Stat. Rule 809.32 (2011-12) and Anders v. California, 386 U.S. 738 (1967).Johnson received a copy of the report and was advised of his right to file a response.He has not done so.Upon consideration of the report and an independent review of the record as mandated by Anders and Rule 809.32, we summarily affirm the judgment because there are no issues that would have arguable merit for appeal.Wis. Stat. Rule 809.21 (2011-12).

The no-merit report addresses the following possible appellate issues:(1) whether Johnsonís no contest plea was knowingly, voluntarily, and intelligently entered and had a factual basis; and (2) whether the circuit court misused its sentencing discretion.We agree with appellate counsel that these issues do not have arguable merit for appeal.

With regard to the entry of his no contest plea, Johnson answered questions about the plea and his understanding of his constitutional rights during a colloquy with the circuit court that complied with State v. Hoppe, 2009 WI 41, ∂18, 317 Wis. 2d 161, 765 N.W.2d 794.[2]We conclude that Johnsonís no contest plea was knowingly, voluntarily, and intelligently entered, State v. Bangert, 131 Wis. 2d 246, 260, 389 N.W.2d 12 (1986), and that it had a factual basis, State v. Harrington, 181 Wis. 2d 985, 989, 512 N.W.2d 261 (Ct. App. 1994).Additionally, the plea questionnaire and waiver of rights form Johnson signed is competent evidence of a knowing and voluntary plea.State v. Moederndorfer, 141 Wis. 2d 823, 827-29, 416 N.W.2d 627 (Ct. App. 1987).Although a plea questionnaire and waiver of rights form may not be relied upon as a substitute for a substantive in-court personal colloquy, it may be referred to and used at the plea hearing to ascertain the defendantís understanding and knowledge at the time a plea is taken.Hoppe, 317 Wis. 2d 161, ∂∂30-32.

Johnson entered his no contest plea as a repeat offender.The record reveals that Johnson admitted his prior convictions.Wis. Stat. ß 973.12(1).The circuit court also advised Johnson of the effect of the two dismissed and read-in counts.State v. Straszkowski, 2008 WI 65, ∂5, 310 Wis. 2d 259, 750 N.W.2d 835. We agree with appellate counsel that there would be no arguable merit to a challenge to the entry of Johnsonís no contest plea.

The circuit court imposed a three-year term of probation and stayed sixty days in jail.The record reveals that the sentencing courtís discretionary decision had a ďrational and explainable basis.ĒState v. Gallion, 2004 WI 42, ∂76, 270 Wis. 2d 535, 678 N.W.2d 197.The court adequately discussed the facts and factors relevant to sentencing Johnson.In fashioning the sentence, the court considered the seriousness of the offense of conviction and the read-in offenses, Johnsonís character and history of other offenses, and the need to protect the public.State v. Ziegler, 2006 WI App 49, ∂23, 289 Wis. 2d 594, 712 N.W.2d 76.We agree with appellate counsel that there would be no arguable merit to a challenge to the sentence.

Our independent review of the record does not disclose any potentially meritorious issue for appeal.Because we conclude that there would be no arguable merit to any issue that could be raised on appeal, we accept the no-merit report, affirm the judgment of conviction, and relieve Attorney Jefren Olsen of further representation of Johnson in this matter.

Upon the foregoing reasons,

IT IS ORDERED that the judgment of the circuit court is summarily affirmed pursuant to Wis. Stat. Rule 809.21 (2011-12).

IT IS FURTHER ORDERED that Attorney Jefren Olsen is relieved of further representation of Kody Johnson in this matter.


 

Diane M. Fremgen

Clerk of Court of Appeals

 



[1]  All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.

[2]  Because Johnson did not receive the deportation warning as part of the plea colloquy, State v. Bedolla, 2006 WI App 154, ∂5, 295 Wis. 2d 410, 720 N.W.2d 158, we directed appellate counsel to evaluate and investigate this issue and advise this court of Johnsonís status.Counsel has confirmed for this court that Johnson is a United States citizen.