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COURT OF APPEALS DECISION DATED AND RELEASED April 17, 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. |
Nos. 96-0205-CR-NM
96-0206-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
THOMAS C. NELSON,
Defendant-Appellant.
APPEALS from judgments
of the circuit court for Walworth County:
MICHAEL S. GIBBS, Judge. Affirmed.
ANDERSON, J. Counsel for Thomas C.
Nelson has filed a no merit report pursuant to Rule 809.32, Stats. Nelson has filed a response challenging his
counsel's conclusions and raising some additional issues. Upon our independent review of the record as
mandated by Anders v. California, 386 U.S. 738 (1967), we
conclude that there is no arguable merit to any issue that could be raised on
appeal.
This appeal involves
only the sentences that were imposed on December 8, 1994. On October 19, 1993, pursuant to a plea
agreement, Nelson entered no contest pleas to charges of disorderly conduct,
battery and resisting an officer. Two
other misdemeanor charges were dismissed but read in for sentencing. Sentence was withheld and Nelson was placed
on probation. On July 22, 1994,
pursuant to a plea agreement, Nelson entered a no contest plea to a charge of
disorderly conduct as a repeater. A
charge of battery as a repeater was dismissed but read in for sentencing. Sentence was again withheld and Nelson was
placed on probation. Nelson did not
begin the appeal process after entry of either of these judgments of conviction. Therefore, he has no right to challenge the
underlying judgments of conviction.[1]
On November 21, 1994,
Nelson's probation was revoked and he was sentenced to consecutive terms
totaling forty-eight months in prison.
Nelson filed a notice of intent to pursue postconviction relief to
challenge the sentence. The court
reporter subsequently informed this court that she had lost her transcription
notes from the sentencing hearing. This
court ordered the trial court to conduct a "reconstruction hearing"
as described in State v. Perry, 136 Wis.2d 92, 98-109, 401 N.W.2d
748, 751-56 (1987), and State v. DeLeon, 127 Wis.2d 74, 81-82,
377 N.W.2d 635, 639-40 (Ct. App. 1985).
After reconstructing the testimony, the arguments of counsel and the
court's reasoning process, the trial court entered judgments of conviction and
Nelson appeals.
The no merit report
correctly concludes that the record was sufficiently reconstructed to allow
this court to review the sentence. The
trial court quoted at length from the victim's written statement. Nelson's trial attorney was present during
this reading and conceded that the witness statement was generally consistent
with the victim's testimony at the original sentencing hearing. The court then read a statement given by
Nelson to the police. Both the
prosecutor and Nelson's trial attorney agreed that the statement was generally
consistent with Nelson's testimony at the original sentencing hearing. Nelson himself agreed that the judge had
captured the essence of his testimony at the original sentencing hearing. Nelson then testified at the reconstruction
hearing and conceded that his testimony was essentially the same as that given
at the original sentencing hearing. The
attorneys then summarized their arguments regarding sentencing and Nelson was
given a final opportunity to address the court. The court found, as it had at the original sentencing hearing,
that Nelson and the victim lied at the sentencing hearing. The court also noted that Nelson had been
given substantial concessions at the outset because several charges had been
dismissed pursuant to the plea agreement and because very little jail time had
originally been imposed as a condition of probation. The court noted that Nelson continually violated his probation by
consuming alcohol, smoking marijuana and having contact with the victim. He was also arrested while on
probation. This reconstructed hearing
provides an adequate basis for this court to review the exercise of the trial
court's sentencing discretion.
In his response to the
no merit report, Nelson argues that the reconstruction hearing did not reflect
the trial court's statements made at the initial sentencing hearing. He alleges that the trial court stated that
Nelson and the victim were both "lying their asses off" and that his
"probation agent doesn't know a damn thing about [him]." Nelson describes the court's comments as
judicial misconduct. We need not
determine whether the trial court made these statements because, even assuming
that Nelson's allegations of harsh language are true, there is no basis for
challenging the sentence. The trial
court has the right to determine the credibility of the witnesses who testified
at the sentencing hearing. The use of
harsh language does not provide a basis for challenging the sentence.
The trial court properly
exercised its sentencing discretion when it imposed consecutive sentences
totaling four years. The court properly
considered Nelson's undesirable behavior patterns, his personality, character
and social traits, his veracity and his failure to comply with the conditions
of his probation. See State
v. Curbello-Rodriguez, 119 Wis.2d 414, 433, 351 N.W.2d 758, 767 (Ct.
App. 1984). The sentence was not so
excessive, unusual or disproportionate to the crimes as to shock public
sentiment. Ocanas v. State,
70 Wis.2d 179, 185, 233 N.W.2d 457, 461 (1975).
By the Court.—Judgments
affirmed.