COURT OF APPEALS DECISION DATED AND RELEASED October 23, 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. 96-0655-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CURTIS L. GOLSTON,
Defendant-Appellant.
APPEAL from judgments
and an order of the circuit court for Kenosha County: FREDERICK P. KESSLER, Reserve Judge, and BRUCE E. SCHROEDER,
Judge. Affirmed.
BROWN, J. Curtis L. Golston
appeals his misdemeanor convictions for two counts of violating domestic abuse
injunctions, as a repeater. On one
count, a jury found Golston guilty of having sent the victim a letter from
prison. On the second count, Golston
pled no contest to having driven a state-owned correctional center van slowly
past the victim's home. Golston's
counsel has filed a no merit report under Anders v. California,
386 U.S. 738 (1967). Golston received a
copy of the report and has filed a response.
Counsel's no merit report raises three basic arguments: (1) trial counsel was ineffective in several
respects; (2) the trial court proceedings contained defects concerning
Golston's repeater status, the statute of limitations, intrastate detainer
procedures, speedy trial rights and new evidence; and (3) Golston has new
exculpatory evidence.
In his pro se response,
Golston concentrates on three issues:
(1) the proceedings violated the intrastate detainer statutes; (2) the
statute of limitations required the prosecution to file the complaint before
the injunction's expiration; and (3) new evidence demonstrates that a prison
social worker authorized Golston to send the victim the letter. Upon review of the record, this court is
satisfied that the no merit report properly analyzes the issues it raises, and
this court will not discuss them further.
This court also concludes that Golston's pro se issues have no arguable
merit. Accordingly, this court adopts
the no merit report, affirms the convictions, and discharges Golston's
appellate counsel of his obligation to represent Golston further in this
appeal.
First, Golston's no
contest plea to the drive-by charge waived all pre-plea defects on that charge
except jurisdictional defects, see State v. Bangert, 131
Wis.2d 246, 293, 389 N.W.2d 12, 34 (1986), including the problems with the
intrastate detainer statute, the statute of limitations, and the adequacy of
trial counsel on those matters. See
Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983), cert.
denied, Smith v. McKaskle, 466 U.S. 906 (1984). Golston has alleged nothing that transpired
before the plea amounting to a jurisdictional defect. As a result, Golston's no contest plea operated to cure every
trial court defect he has raised in his response. Golston's no contest plea constituted an exchange of uncertainty
for a degree of certainty in terms of the proceedings' outcome. As part of that exchange, he forfeited his
right to make further challenges to pre-plea proceedings.
Moreover, Golston's plea
reversed the presumption of innocence, State v. Koerner, 32
Wis.2d 60, 67, 145 N.W.2d 157, 160‑61 (1966), and he has raised no issue
that merits a reexamination of his guilt.
Trial and appellate courts must ignore every defect in pleading,
procedure and the proceedings that does not affect the substantial rights of
the parties. State v. Weber,
174 Wis.2d 98, 109, 496 N.W.2d 762, 767 (Ct. App. 1993). The same standard applies to actions by
defense counsel. Such actions cause no
prejudice unless they affect substantial rights. See Herman v. Butterworth, 929 F.2d 623, 628
(11th Cir. 1991). Here, Golston raises
procedural defects or substantive issues that do not bear upon substantial
rights or substantially undermine his plea's fundamental guilt-evincing factual
basis. Litigants may not use
ineffective counsel claims to prolong substanceless proceedings on the basis of
such issues.
Likewise, Golston has
not shown that the issues he now raises contributed to his decision to plead no
contest. Litigants may withdraw pleas
on a postjudgment basis if they were not intelligent and voluntary. State v. James, 176 Wis.2d
230, 236-37, 500 N.W.2d 345, 348 (Ct. App. 1993). This rule rests on the premise that whatever misapprehensions
plea makers may have had must concern their substantial rights. The misunderstanding must have advanced a
manifest injustice. State v.
Woods, 173 Wis.2d 129, 140, 496 N.W.2d 144, 149 (Ct. App. 1992). Otherwise, plea makers could withdraw their
pleas on the basis of immaterial misunderstandings. Here, Golston raises
procedural defects that have not affected substantial rights or substantive
issues that have not undermined the plea's fundamental factual basis. In sum, he has not shown a manifestly unjust
misunderstanding.
Finally, Golston's
issues have no arguable merit regarding the drive-by or letter-writing
charges. First, the prosecution filed
the complaint the day after Golston's release from prison. Golston's release from prison took his
prosecution outside the dictates of the intrastate detainer statute,
§ 971.11, Stats. This provision creates some special
procedures for prosecutions of prisoners.
The statute places no control, however, on prosecutions of former
prisoners after their release. Second,
the statute of limitations did not require the prosecution to file charges
before the domestic abuse injunction's expiration. The misdemeanor limitations period ran from the date of the
offenses. Section 939.74(1), Stats.
The injunction set the period when Golston's actions risked criminal
liability, not the period when actions risked prosecution.
Third, Golston's
letter-writing conviction survives his postjudgment claim that a prison social
worker authorized him to send the victim the letter. According to Golston, the social worker's authorization
effectively nullified the requisite mens rea criminal intent Golston otherwise
would have had. Golston's failure to
raise these critical substantive facts at trial, despite testifying himself,
circumstantially proves their nonexistence, see Booth v.
Frankenstein, 209 Wis. 362, 370, 245 N.W. 191, 193-94 (1932), thereby
making them inherently improbable. See
United States v. Ramos-Rascon, 8 F.3d 704, 708 n.3 (9th Cir.
1993); Lazarus v. American Motors Corp., 21 Wis.2d 76, 84, 123
N.W.2d 548, 552 (1963). Regardless,
Golston should have known that social workers have no power to modify court
issued injunctions. As a result,
Golston could not use a social worker's station-exceeding authorization to
nullify criminal intent. Accordingly,
Golston's counsel is discharged.
By the Court.—Judgments
and order affirmed.