COURT OF APPEALS DECISION DATED AND RELEASED January 16, 1997 |
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. 96-1251
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TODD D. MOSKONAS,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Portage County: FREDERIC W. FLEISHAUER, Judge.
Affirmed.
Before Eich, C.J.,
Dykman, P.J., and Deininger, J.
PER
CURIAM. Todd D. Moskonas appeals from a judgment of conviction
for sexual assault of a child and from an order summarily denying his
postconviction motion.[1] The issues are: (1) whether the
postconviction court correctly concluded, as a matter of law, that the
trial court was empowered to impose a probationary term to run concurrent to a
prison sentence ("substantive motion"); and (2) whether the
postconviction court erroneously exercised its discretion in summarily denying
Moskonas's substantive motion and his request for the appointment of
postconviction counsel. We conclude
that State v. Aytch, 154 Wis.2d 508, 453 N.W.2d 906 (Ct. App.
1990), allows the imposition of a probationary term concurrent to a prison
sentence. Consequently, the
postconviction court properly exercised its discretion in summarily denying the
motion. Therefore, we affirm.
In 1991, Moskonas was
charged with sexual contact of a child.
That allegation resulted in revocation of his probation imposed for a
1987 conviction for third-degree sexual assault of a child. Following the 1992 conviction for the 1991
charge, Moskonas was sentenced for both crimes: to five years in prison and to a twelve-year probationary term to
run concurrent with that sentence.
Moskonas filed a pro
se postconviction motion to "vacate" and "correct" his
1992 sentence because he claimed that the trial court could not impose a term
of probation concurrent to a prison sentence.
He also moved for the appointment of postconviction counsel to represent
him on the substantive motion. The
postconviction court summarily denied his motions because the concurrent
probation structure is authorized by Aytch.
Moskonas raises seven
issues which we have consolidated into two.[2] Aytch is dispositive of the
substantive issue because we held that "a sentence with probation that is
concurrent to a prison sentence on a different charge is permitted under sec.
973.09(1)(a), Stats." Aytch, 154 Wis.2d at 511-12,
453 N.W.2d at 908.[3] Consequently, the trial court's imposition
of a probationary term to run concurrent to a prison sentence is authorized by
statute, as construed by Aytch.
Despite Moskonas's arguments attempting to circumvent Aytch,
it is precedent that is binding on the trial court and on this court. See State v. Solles,
169 Wis.2d 566, 570, 485 N.W.2d 457, 459 (Ct. App. 1992).
The trial court has the
discretion to summarily deny a postconviction motion if the defendant has
alleged facts which, even if proven true, would not entitle him to relief. See, e.g., Nelson v. State,
54 Wis.2d 489, 497-98, 195 N.W.2d 629, 633 (1972) ("[I]f the record
conclusively demonstrates that the defendant is not entitled to relief, the
trial court may in the exercise of its legal discretion deny the motion without
a hearing.").
The substantive issue is
controlled by Aytch. There
is no reason to conduct an evidentiary hearing because there is no evidence
that could render Aytch inapplicable. Consequently, Moskonas has not alleged anything that would
entitle him to postconviction relief, and the trial court properly exercised its
discretion in summarily denying his motion.
See Nelson, 54 Wis.2d at 497-98, 195 N.W.2d at 633;
see also State v. Bentley, 201 Wis.2d 303, 310-11, 548 N.W.2d 50,
53 (1996). Likewise, it would be an
exercise in futility to appoint counsel to pursue this issue because it is
controlled by Aytch.
Counsel cannot change that.
By the Court.—Judgment
and order affirmed.
This
opinion will not be published. See Rule 809.23(1)(b)5, Stats.
[1] We use the phrase summarily denied to denote that the motion was denied without an evidentiary hearing.
[2] Moskonas's first issue is whether we review the construction of a statute without deference to the trial court's interpretation. Moskonas is correct. However, it does not change our decision. We consolidate four of the "substantive" issues because they challenge the propriety and applicability of Aytch. We consolidate the two remaining issues because they challenge the propriety of the postconviction court's order summarily denying relief.
[3] Section
973.09(1)(a), Stats., provides in
relevant part:
[I]f a person is convicted of a crime, the court, by order, may withhold sentence or impose sentence under s. 973.15 and stay its execution, and in either case place the person on probation to the department for a stated period, stating in the order the reasons therefor. The court may impose any conditions which appear to be reasonable and appropriate. The period of probation may be made consecutive to a sentence on a different charge, whether imposed at the same time or previously....