COURT OF APPEALS DECISION DATED AND RELEASED October 24, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0254-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GARRY P. VAN DE VOORT,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Wood County: JAMES M. MASON, Judge. Affirmed.
VERGERONT, J.[1] Garry Van de Voort appeals a judgment of
conviction of operating while intoxicated causing injury, contrary to §
346.63(2), Stats., and an order
denying postconviction relief. He was
sentenced to the county jail for eight months and fined and assessed a total of
$788. His driving privileges were
revoked for one year.
Van de Voort's appellate
counsel has filed a no merit report pursuant to Anders v. California,
386 U.S. 738 (1967). Van de Voort has
been provided a copy of the report and advised of his right to file a
response. He has not responded. The no merit report raises two issues: (1)
whether trial counsel was ineffective for failing to investigate, and (2)
whether Van de Voort was prejudiced by counsel's deficient investigation.
Inasmuch as Van de Voort
was found guilty after a jury trial, this court will also evaluate the
sufficiency of the evidence and whether sentencing reflects a reasonable
exercise of discretion. Upon
independent review of the record, this court is satisfied that the no merit
report properly analyzes the ineffective assistance of counsel claim, that the
evidence was sufficient and that the sentence was within the trial court's
discretion. Accordingly, this court
accepts the no merit report, affirms the judgment and order, and discharges Van
de Voort's appellate counsel of his obligation to represent Van de Voort
further in this appeal.
Van de Voort was charged
with: (1) causing injury to another person
by the operation of a vehicle while under the influence of an intoxicant,
contrary to § 346.63(2)(a)1, Stats.,
and (2) causing injury to another person by the operation of a vehicle while
having a prohibited alcohol concentration in excess of .10%, contrary to §
346.63(2)(a)2.
At trial, Dennis Trachte
testified that Van de Voort was traveling at a minimum of fifty-five miles per
hour when he went through a stop sign and collided with the Trachtes' Toyota
truck at the intersection of Second and Maple Streets in the City of
Marshfield. Trachte testified that he
was driving, and his wife and son were sitting beside him in the front
seat. When Trachte saw Van de Voort's
car approaching, Trachte took evasive action but the car hit the truck's back
end, flipping it over. Trachte
testified that he saw just one person, the driver, in the car that hit
him. Becky Trachte, Dennis' wife,
testified that her hands were pinned through the sun roof. Although her hands were not broken,
ligaments were torn. Her son, age
eight, had a scraped knee and was taken to the hospital to have glass removed
from the knee. Her husband received bruises.
Wisconsin State Trooper
David Forsythe testified that several bystanders pointed out that the car that
crashed into the truck was parked less than a block away. The car was registered to Van de Voort. The individual who was standing in front of
the car looking at its damage identified himself with a photo driver's license
as Van de Voort. Van de Voort told the
officer that he had been driving the car and the other driver had run a red
light. The officer testified that there
were, however, no traffic control lights at the intersection.
The officer observed
that Van de Voort's balance was unsteady, his eyes red and bloodshot, and his
speech was incoherent. His breath
carried a very strong order of an intoxicant.
Van de Voort failed field sobriety tests. Van de Voort was arrested, informed of his rights under the
implied consent law and taken to the hospital.
Van de Voort consented to a blood test.
Blood was drawn and chain of its custody was established. Chemical testing revealed a blood ethanol
content of .238%.
Van
de Voort testified that he had six or seven beers and two twelve ounce Zimas
that evening. He was a veteran with an
ankle injury and later became disabled as a result of an auto accident. He testified that he met a gentleman at the
tavern who was interested in buying his car, so he let the gentleman drive him
home. Van de Voort testified that the
collision occurred when this potential buyer was driving. Van de Voort did not know the man's name,
and the man disappeared into the crowd of bystanders. Van de Voort testified that he did not tell the investigating
officer about the man who had been driving.
He never saw the driver again.
The jury returned a guilty verdict on both charges, and the trial court
entered a judgment convicting Van de Voort of violating § 346.63(2), Stats.
An appellate court may
not reverse a criminal conviction unless the evidence, viewed most favorably to
the state and the conviction, is so insufficient in probative value that it can
be said as a matter of law that no trier of fact, acting reasonably, could have
found guilt beyond a reasonable doubt. State
v. Poellinger, 153 Wis.2d 493,
501, 451 N.W.2d 752, 755 (1990). The
jury, not the appellate court, assesses the weight and credibility of the
testimony. On review of jury findings
of fact, viewing the evidence most favorably to the state and the conviction,
this court asks only if the evidence is inherently or patently incredible or so
lacking in probative value that no jury could have found guilt beyond a
reasonable doubt. State v. Oimen,
184 Wis.2d 423, 436, 516 N.W.2d 399, 405 (1994). This court is satisfied that the record fails to reveal any issue
of arguable merit as to the sufficiency of the evidence.
Next, this court reviews
the potential argument that trial counsel was ineffective for failing to retain
an investigator to locate a witness.
The first part of the two-part test requires the defendant to show
deficient performance; the second part requires that the deficient performance
is prejudicial, that is, that the errors were sufficiently serious to render
the resulting conviction prejudicial. State
v. Pitsch, 124 Wis.2d
628, 633, 369 N.W.2d 711, 714 (1985).
"[T]he defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland
v. Washington, 466 U.S. 668, 694 (1984). The determination of prejudice is a question of law. This court need not address the first prong
if the prejudice component is not shown.
Id. at 697.
At the postconviction
hearing, trial counsel testified that he had insufficient information regarding
witnesses to pursue any leads. The only
information he had was that there may have been unknown bystanders at the
scene. Van de Voort testified that he
informed trial counsel that a Linda Meyer or Mason witnessed the accident. Chad Banchette, a private investigator, also
testified that postconviction counsel asked him to locate Linda Meyer or other
witnesses. He canvassed the entire area
around the accident and interviewed approximately nineteen potential witnesses
including Linda Meyer. None of the
witnesses he interviewed had seen the accident, except one, who stated that he
was unable to see the number of occupants of Van de Voort's car.
This court is satisfied
that the record reveals no prejudice as a result of trial counsel's claimed
deficient investigation. The sole
controverted issue at trial was whether Van de Voort was the driver of his car
at the time of the collision. After
postconviction counsel retained an investigator to interview potential
witnesses, no witness was identified to offer proof that Van de Voort was not
the driver. Because no prejudice is
shown, there is no arguable merit to any issue based upon a claim of
ineffective assistance of counsel.
Finally, this court
concludes that there is no arguable merit to any challenge to the exercise of
the court's sentencing discretion. The
penalty range is not less than thirty days nor more than one year in the county
jail and a fine of not less than $300 nor more than $2,000. The trial court considered the seriousness
of the offense, the need to protect the public and Van de Voort's prior driving
record, which included at least one driving while intoxicated offense. These are appropriate considerations. See State v. Echols,
175 Wis.2d 653, 682, 499 N.W.2d 631, 640 (1993).
This court is satisfied
that the record discloses no potential issues of arguable merit. Accordingly, the judgment and order are
affirmed, and Attorney Cathy J. Gorst is discharged of her obligation to
represent Van de Voort further in this appeal.
By the Court.—Judgment
and order affirmed.