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COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 11, 1997 |
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. 96-0855-CR-NM
96-0872-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JERALD J. McDOWELL,
Defendant-Appellant.
APPEAL from judgments
and orders of the circuit court for Milwaukee County: JEFFREY A. KREMERS and JEFFREY A. WAGNER, Judges. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER
CURIAM. Jerald J. McDowell appeals from judgments of conviction
for drug-related offenses and postconviction orders denying motions to withdraw
his pleas. The state public defender
appointed Attorney Ellen Henak as McDowell's appellate counsel. Attorney Henak served and filed a no merit
report pursuant to Anders v. California, 386 U.S. 738 (1967), and
Rule 809.32(1), Stats.
McDowell did not respond, although Lawanda Ference filed correspondence
which we construe as a response.[1] After an independent review of the records
as mandated by Anders, we conclude that any further proceedings
would lack arguable merit.
McDowell pled guilty to
two counts of possession of a controlled substance with intent to deliver, as a
subsequent offense, contrary to §§ 161.16(2)(b)1, 161.41(1m)(cm)1 and
161.48, Stats., ("cocaine
conviction"). The trial court
imposed consecutive sentences of eight and ten years. McDowell also pled guilty to possession of a non-narcotic
controlled substance, as a subsequent offense, contrary to
§§ 161.16(2)(b)1, 161.41(3m) and 161.48, Stats.,
and to possession of a controlled substance, as a subsequent offense, contrary
to §§ 161.01(14), 161.14(4)(t), 161.41(3r) and 161.48, Stats. ("lesser conviction"). The trial court imposed two, six-month
sentences to run concurrent to each other and to the eighteen-year sentence
imposed for the cocaine conviction.
The no merit report
discusses the factual and procedural history of these cases[2]
and addresses whether: (1) McDowell's
pleas were entered knowingly, intelligently and voluntarily; (2) McDowell
received ineffective assistance because trial counsel failed to advise him that
he was not obliged to agree to a renegotiated plea bargain; and (3) the trial
court erroneously exercised its sentencing discretion. We agree with counsel's description,
analysis and conclusion that pursuing these appellate issues would lack
arguable merit. However, we address the
second and third issues because Ference raises them.
Ference claims that
McDowell was tricked into pleading guilty to the cocaine charges because he
believed that he was plea bargaining to the State's recommendation of a
ten-year sentence. However, this was
the focus of the postconviction motion for plea withdrawal where McDowell claimed
that he received ineffective assistance.
The postconviction court heard testimony from McDowell and his trial
counsel. Trial counsel testified that
McDowell "seemed dissatisfied" with the ten-year offer, so counsel
attempted to negotiate a better agreement.
Counsel then negotiated an agreement with the prosecutor who would offer
no recommendation on the specific length of a prison term. The postconviction court found that McDowell
authorized his counsel to continue negotiations to improve the original
ten-year offer, and that before pleading guilty, McDowell knew about the
State's agreement not to recommend a specific term of years.[3]
These findings are based
on trial counsel's testimony at the postconviction hearing. Because the postconviction court heard that
testimony and observed the witnesses, we defer to its findings on the
witnesses' credibility,[4]
and would not reverse those findings, unless they were clearly erroneous. Section 805.17(2), Stats. Because the
postconviction court's findings are consistent with the testimony of trial counsel,
it would lack arguable merit to challenge the trial court's postconviction
orders and contend that McDowell: (1)
did not knowingly, intelligently and voluntarily plead guilty to these charges;
or (2) received ineffective assistance of trial counsel.
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 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 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 sentencing court
considered the primary sentencing factors.
It commented that these four drug-related charges were very serious when
considered in the appropriate context.
It extensively considered McDowell's background which "could easily
justify imposing forty years in prison."
It told McDowell that, despite his remorse, "this isn't about a
second chance. This is about a four[th]
or fifth chance." It acknowledged
that McDowell was "at the bottom of the chain of people involved in
distributing cocaine," but, also recognized the community's need for
protection from drugs. To challenge the
sentences imposed for an erroneous exercise of discretion would lack arguable
merit.
Upon our independent
review of the records, 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
judgments of conviction and postconviction orders and relieve Attorney Ellen
Henak of any further representation of Jerald J. McDowell.
By the Court.—Judgments
and orders affirmed.
[1] From the context of Ference's correspondence, we assume that she is the mother of McDowell's child.
[2] Although McDowell appeals from both judgments and orders, it is the cocaine conviction, for which he received an aggregate sentence of eighteen years, which is the focus of the no merit report and response.
[3]
The records establish that McDowell understood that the sentencing court
was not bound by any sentencing recommendation, and that he was facing a
potential aggregate sentence of forty-three years. The postconviction court found that
[McDowell] may not be happy with
the outcome of what the sentencing court, in fact, gave him but he certainly
knew what the negotiations were at the time he entered the plea and at the time
of sentencing and by filling out the Guilty Plea Questionnaire and Waiver of
Rights Form the court also would indicate that the court was not bound by any
negotiations at all ....
There is no indication that the Defendant was confused whatsoever as to what the recommendation was. The court also [finds that] the Defendant is not a novice to the criminal justice system ....