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COURT OF APPEALS DECISION DATED AND RELEASED March 27, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3296-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES L. ANDERSON,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Kenosha County:
S. MICHAEL WILK, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Snyder, JJ.
PER CURIAM. James L. Anderson
appeals from a judgment of conviction for battery to a peace officer. The state public defender appointed Attorney
Ruth S. Downs as Anderson's appellate counsel. Downs served and filed a no merit report pursuant to Anders
v. California, 386 U.S. 738 (1967), and Rule 809.32(1), Stats. Anderson did not respond. After an independent review of the record as
mandated by Anders, we conclude that any further appellate
proceedings would lack arguable merit.
Anderson pled guilty to
felony battery to a peace officer as a repeater, contrary to §§ 940.20(2)
and 939.62, Stats. The trial court imposed an eight-year
sentence consecutive to another sentence Anderson was serving.
The no merit report
addresses whether Anderson's plea was entered knowingly, intelligently and
voluntarily, and whether the trial court erroneously exercised its sentencing
discretion.[1] Appellate counsel advised this court that
Anderson does not challenge his plea, but requests review on whether the trial
court erroneously exercised its sentencing discretion. Based on Anderson's request, we address that
issue.
On appeal, our review of
the sentence is limited to whether the trial court erroneously exercised its
discretion. State v. Larsen,
141 Wis.2d 412, 426, 415 N.W.2d 535, 541 (Ct. App. 1987). The primary sentencing factors are the
gravity of the offense, the character of the offender and the need for public
protection. Id. at 427,
415 N.W.2d at 541. The weight given to
each sentencing factor is within the trial court's discretion. Cunningham v. State, 76 Wis.2d
277, 282, 251 N.W.2d 65, 67-68 (1977).
The trial court
considered the gravity of the offense.
It commented that this offense was very serious because violence against
a police officer evinces a disrespect for the law and encourages the use of
force by the police.
The trial court
considered Anderson's character. It
noted that Anderson's substance abuse was the underlying cause of this crime
because he needed money to support his habit.
It also noted that Anderson previously refused treatment while on parole
supervision for another crime. The
trial court rejected a less severe sentence "because [Anderson is] doing
bad things, and the stack of bad things is growing."
The trial court
considered the need for public protection.
Because Anderson refused drug treatment and was unsuccessful in
completing probation imposed for other crimes, it concluded that a prison term
was appropriate because "the court views [Anderson] as a threat." The trial court concluded that the public
needs protection from Anderson because his history demonstrates his willingness
to commit crimes to support his drug habit.
The trial court
considered the sentencing factors. In
addition to the parties' recommendations, the trial court considered the
eleven-year maximum sentence and the presentence report author's recommendation
of a ten-year sentence before it imposed an eight-year sentence. The trial court properly exercised its
sentencing discretion. We agree with
appellate counsel's description, analysis and conclusion that pursuing any
challenge to the sentence would lack arguable merit.
Upon our independent
review of the record as mandated by Anders and Rule 809.32(3), Stats., we conclude that there are no other meritorious
issues and that any further appellate proceedings would lack arguable
merit. Accordingly, we affirm the
judgment of conviction and relieve Attorney Ruth S. Downs of any further
appellate representation of Anderson.
By the Court.—Judgment
affirmed.