COURT OF APPEALS DECISION DATED AND RELEASED AUGUST 20, 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. 96-1228-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ROBERT J. OLDS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Forest County:
MARK A. MANGERSON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Robert Olds appeals from a judgment of conviction for
aggravated battery with a dangerous weapon.
Olds' appellate counsel has filed a no merit report pursuant to Rule 809.32, Stats., and Anders v. California, 386 U.S. 738
(1967). Olds received a copy of the
report and was advised of his right to file a response. He has elected not to do so. Upon consideration of the report and an
independent review of the record, we conclude that there is no arguable merit
to any issue that could be raised on appeal.
Olds was charged with
attempted first-degree intentional homicide and aggravated battery with a
dangerous weapon for the April 5, 1995 stabbing of Lori McGeshick. A motion challenging the sufficiency of the
complaint and the allegedly duplicitous nature of the charges was denied. The bindover was challenged as well by a
separate motion. Olds also moved to
suppress statements made to law enforcement officers and to suppress physical
evidence recovered at McGeshick's residence.
Initially, Olds entered a plea of not guilty by reason of mental disease
or defect, and Dr. Frederick Fosdahl was appointed by the court to examine
Olds. Later, pursuant to a plea
agreement, Olds entered a no contest plea to the aggravated battery
charge. The attempted homicide charge
was dismissed and the trial court sentenced Olds to thirteen years'
imprisonment.
The no merit report only
addresses potential issues regarding the sentence. Therefore, we have independently reviewed the record to determine
if there is any arguable merit to a claim that Olds' plea was defective because
it was entered involuntarily, unknowingly and unintelligently, or because no
factual basis existed to support it.
The transcript of the plea proceeding establishes that the trial court
complied with the necessary procedures.
Although the court did not discuss the waiver of each of Olds' constitutional
rights, it was not required to do so. See
State v. Moederndorfer, 141 Wis.2d 823, 827, 416 N.W.2d 627, 629
(Ct. App. 1987). The trial court
engaged in a colloquy with Olds sufficient to establish that Olds understood
that, by signing a waiver form, he was waiving the constitutional and other
rights detailed therein. See State
v. Hansen, 168 Wis.2d 749, 754-55, 485 N.W.2d 74, 76-77 (Ct. App.
1992). Based on the record regarding
the entry of Olds' plea, no arguable merit exists to support a claim that it
was entered in violation of his constitutional or statutory rights.
A plea of guilty or no
contest, when knowingly and voluntarily made, waives all nonjurisdictional
defects and defenses. State v.
Andrews, 171 Wis.2d 217, 223, 491 N.W.2d 504, 506 (Ct. App. 1992). Although the record does not reveal whether
Olds was actually examined by Dr. Fosdahl, the defense was waived. Nothing suggests that the waiver was
inappropriate.
We next consider whether
there is arguable merit to a challenge to the trial court's denial of Olds'
motions to suppress statements and evidence.
An exception to the plea waiver rule permits review of trial court
orders denying motions to suppress evidence or determining that statements of
the defendant are admissible into evidence.
See § 971.31(10), Stats.
The trial court found
that McGeshick gave consent to search her residence. It also found that Olds had not established standing to challenge
the search of the residence. The statements
Olds made both before and after he was advised of his Miranda
rights were found to be voluntary. The
statements were not made to any inquiries of law enforcement officials. Olds' invocation of his right to remain
silent after being given his Miranda warnings was honored. Statements he made after that time were
volunteered.
When an appellate court
reviews an order denying a motion to suppress the evidence, it will uphold the
trial court's findings of fact unless they are against the great weight and
clear preponderance of the evidence. State
v. Krier, 165 Wis.2d 673, 676, 478 N.W.2d 63, 65 (Ct. App. 1991). The trial court's findings are supported by
the evidence adduced at the evidentiary hearing. There is no meritorious challenge to the denial of Olds' motions
to suppress.
The no merit report
addresses whether the sentence was a result of a misuse of discretion or is
subject to modification based on new factors.
Counsel correctly notes that Olds' rehabilitative progress in prison and
his belief that McGeshick did not sustain as severe of wounds as the trial
court believed are not new factors.
Appellate counsel also
concludes, and we agree, that the trial court properly exercised its sentencing
discretion and that an appeal on that question would be frivolous. The sentence is based on the facts of record
and appropriate considerations. It was
the sentence that was the joint recommendation of the parties under the plea
agreement. The trial court noted that
the wounds inflicted were dangerously close to taking the victim's life. It acknowledged that the entire
confrontation was fueled by alcohol abuse.
The length of the sentence is reflective of consideration of Olds'
rehabilitative needs. We cannot
conclude that the sentence is unduly harsh or excessive.
Our review of the record
discloses no other potential issues for appeal. We conclude that any further proceedings on Olds' behalf would be frivolous and without
arguable merit within the meaning of Anders and Rule 809.32(1), Stats. Accordingly,
the judgment of conviction is affirmed, and Attorney Daniel Bissett is relieved
of any further representation of Olds on this appeal.
By the Court.—Judgment
affirmed.