COURT OF APPEALS DECISION DATED AND RELEASED JULY 16, 1996 |
NOTICE |
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. 95-3305-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MARK V. REID,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Langlade County: JAMES P. JANSEN, Judge. Affirmed.
CANE,
P.J. Mark V. Reid appeals from a judgment convicting him of
retail theft,[1] in violation
of § 943.50(1m), Stats., and
an order denying his modification of sentence.
After accepting Reid's guilty plea, the trial court imposed a six-month
sentence. The trial court stayed the
sentence and placed Reid on two years of probation with the conditions that he
pay a $100 fine and court costs and that he serve twenty days in jail.
Reid's counsel, Attorney
James Connell, filed a no merit report pursuant to Rule 809.32, Stats.,
and Anders v. California, 386 U.S. 738 (1967). Reid elected not to file a response to the
no merit report.
The no merit report
identified two potential issues: (1)
whether the trial court misused its discretion at sentencing, and (2) whether
the trial court erred in denying Reid's motion for sentence modification. This court reviewed the record and concluded
that the trial court did not misuse its discretion at sentencing or in denying
Reid's motion for sentence modification.
This court adopts the no merit report's discussion of these issues as
its own.
Further review of the
record disclosed that the trial court may have violated a number of the plea
colloquy requirements set forth in § 971.08, Stats., and State v. Bangert, 131 Wis.2d 246,
267-72, 389 N.W.2d 12, 23-25 (1986), justifying a withdrawal of Reid's guilty
plea. However, Reid subsequently waived
his right to appeal this potential violation.[2] Accordingly, appellate review of this issue
is foreclosed.
Based upon review of the
record, this court concludes that any further appellate proceedings on Reid's
behalf would be frivolous and wholly without arguable merit within the meaning
of Anders and Rule 809.32,
Stats. Accordingly, the judgment of conviction and order are
affirmed. Attorney Connell is relieved
of any further representation of Reid in this appeal.
By the Court.—Judgment
and order affirmed.
[2] On May 17, 1996, this court directed counsel to contact Reid and discuss with him the prospect of withdrawing his plea and the practical consequences attendant to it. Counsel was directed to take certain alternative courses of action, depending upon Reid's decision. Reid did not respond to his counsel's correspondence explaining his options. Under these circumstances, Reid's silence is construed as acquiescence to continuing his appeal under Rule 809.32, Stats., and waiver of an appeal as of right on this issue. See State ex rel. Flores v. State, 183 Wis.2d 587, 617, 516 N.W.2d 362, 372 (1994). Accordingly, Attorney Connell's motion to withdraw from this appeal prior to our disposition of it is denied.