COURT OF APPEALS DECISION DATED AND RELEASED February 19, 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
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No. 96-1260-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
THOMAS WILLIAM
KOEPPEN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Waukesha County:
FREDERICK P. KESSLER, Reserve Judge.[1] Affirmed.
NETTESHEIM, J. Thomas
William Koeppen appeals pro se from a judgment of conviction for violating a
condition of bond pursuant to § 946.49(1)(a), Stats. Koeppen
contends that the bond which constituted the basis for the charge was of no
legal effect. Thus, he reasons that he
could not have legally committed the offense.
Koeppen raised this issue via a Franks v. Delaware[2]
motion. We uphold the trial court's
ruling rejecting Koeppen's Franks motion. We therefore affirm the judgment.
We first begin with an
observation about the state of the appellate record in this case. The ruling which inspires this appeal was
made by the Honorable J. Mac Davis.
However, the resolution of this case turns more on the proceedings in a
prior criminal case against Koeppen prosecuted before the Honorable Lee S.
Dreyfus, Jr. Koeppen produced the court
file in the Judge Dreyfus case at the Franks hearing in this
case. However, Koeppen has failed to
include that material in the appellate record.
The State has included
certain transcript excerpts from the proceedings before Judge Dreyfus in the
appendix to its respondent's brief.
While an appendix is technically limited to those materials which are
part of the appellate record, see Rule
809.19(2), Stats., Koeppen does
not object to the State's inclusion of these materials. Nor does he contend that the excerpts are
inaccurate.
Therefore, our analysis
of the proceedings before Judge Dreyfus will be based upon the parties'
representations of those proceedings at the Franks hearing in
this case and upon the limited excerpts from the proceedings before Judge
Dreyfus. To the extent that our analysis
of those proceedings may not be in keeping with what actually occurred before
Judge Dreyfus, the fault is Koeppen's, not ours, since Koeppen has failed to
assure that material presented to Judge Davis is included in the appellate
record. See Rule 809.15, Stats.
FACTS AND PROCEDURAL HISTORY
We begin with the
proceedings before Judge Dreyfus. In
November 1993, following a jury trial, Koeppen was convicted as a repeat
offender of disorderly conduct and bail jumping. Judge Dreyfus sentenced Koeppen to consecutive sentences of
ninety days and nine months. Judge
Dreyfus stayed these sentences and ordered Koeppen to serve three years
probation. However, Judge Dreyfus further
ordered that the probation term be consecutive to a sentence previously imposed
by the Honorable Joseph Wimmer. Koeppen
was scheduled to begin serving Judge Wimmer's sentence the following day. In summary, the entire effect of Judge
Dreyfus's sentence was deferred until Koeppen had completed the sentence
previously imposed by Judge Wimmer.
Later, the State learned
that Koeppen had taken an appeal from the judgment entered by Judge
Wimmer. Thus, Koeppen was not required
to immediately serve that sentence pursuant to § 969.01(2)(b), Stats., which entitles a convicted
misdemeanant to release pending appeal.[3] Recognizing that Judge Dreyfus had imposed
his sentence under the belief that Koeppen would immediately commence serving
the sentence imposed by Judge Wimmer, the State brought a motion to modify the
sentence imposed by Judge Dreyfus. The
State's motion is not part of the appellate record. However, it appears from the arguments at the Franks
hearing that the State asked Judge Dreyfus to eliminate the provision which
made Koeppen's probation consecutive to Judge Wimmer's sentence.
Judge Dreyfus conducted
a hearing on the State's motion on January 5, 1994. After learning of the appeal in Judge Wimmer's case, Judge
Dreyfus saw the issue as whether this new development warranted a change as to
when Koeppen's probation should commence.
Judge Dreyfus chose not to rule immediately on the question. He continued the matter to the following
month and, in addition, ordered Koeppen to sign an appearance bond which
included certain conditions. These
conditions included a provision that Koeppen was not to engage in any violent
conduct against his wife or children.
Koeppen did not object to the bond and, in fact, he executed it. It is this bond which lies at the heart of
the conviction in this case.
By the time of the
adjourned hearing on February 17, 1994, Koeppen had filed a notice of intent to
pursue postconviction relief in the case before Judge Dreyfus and Judge
Dreyfus took note of this filing. See
Rule 809.40, Stats.
As to the merits of the State's motion, Judge Dreyfus noted that his
original sentence had been premised on the belief that Koeppen would
immediately begin serving the sentence imposed by Judge Wimmer. Since the premise for the sentence had
proven inaccurate, Judge Dreyfus ordered that Koeppen immediately commence the
probation. However, Judge Dreyfus did
not alter the provision in the original sentence that the jail sentences
against Koeppen were stayed. The matter
of the bond was not addressed at this hearing.
That brings us to the
present case. In January 1995, the
State charged Koeppen with violating a condition of the bond in the Judge
Dreyfus case. Specifically, the
complaint alleged that Koeppen had physically abused his wife and child
contrary to the conditions of the bond.
Koeppen filed a Franks
motion, contending that the bond ordered by Judge Dreyfus was of no legal effect. Koeppen argued that he could not be
simultaneously subjected to both probation and the conditions of a bond. Judge Davis denied the motion. The matter proceeded to a court trial before
Reserve Judge Frederick P. Kessler who found Koeppen guilty of violating the
bond condition. Koeppen appeals.
ANALYSIS
The controlling issue is
whether the bond ordered by Judge Dreyfus was valid. As noted, Koeppen contends that he could not be simultaneously
subjected to the restrictions of probation and a bond. In support he cites State v. Braun,
100 Wis.2d 77, 301 N.W.2d 180 (1981).
There, after sentencing, the court stayed the sentence for a brief
period and continued the bond previously in effect. The defendant escaped and the state sought to collect on the
bond. The supreme court held that the
bond was of no legal effect after the sentencing. See id. at 83, 301 N.W.2d at 183.[4]
This case, however, is
not a Braun case.
Here, Koeppen had filed a notice
of intent to pursue postconviction relief by the time of the February 17
hearing when Judge Dreyfus revisited the sentencing question. Pursuant to State v. Firkus,
119 Wis.2d 154, 350 N.W.2d 82 (1984), that process triggered Koeppen's right to
release pending appeal pursuant to § 969.01(2)(b), Stats. Firkus
holds that a convicted misdemeanant's right to release pending appeal is not
dependent on the filing of a notice of appeal.
See Firkus, 119 Wis.2d at 156, 350 N.W.2d at
83. Instead, the supreme court held
that the defendant's application to the public defender for representation and
the trial court's knowledge of such fact triggered the right to release pending
appeal. See id. Here, we deem Koeppen's filing of the notice
of intent to pursue postconviction relief as the functional equivalent of
asking for public defender assistance.
Judge Dreyfus obviously knew of this filing since he alluded to it at
the February hearing.
The entitlement to bail
pending appeal entitles a convicted misdemeanant to “release.” See § 969.01(1) & (2)(b), Stats.
The purpose of the statute is to protect the liberty interests of a
convicted misdemeanant who, in most cases, will have already served the jail
term before the appellate process can be completed. See Firkus, 119 Wis.2d at 162, 350 N.W.2d at
86. However, the statute speaks only to
“release,” not to probation. Thus, the
entitlement to release pending appeal does not extend to the probation
component of a judgment of conviction in a misdemeanor case. Therefore, we see no inconsistency in
Koeppen's simultaneous status as a convicted misdemeanant on probation on the
one hand and as an appellant misdemeanant subject to a bond pending appeal on
the other.
We acknowledge that
Judge Dreyfus's imposition of the bond at the January 5 hearing might well have
been improvident since Koeppen had not, as yet, filed a notice of intent to
pursue postconviction relief.[5] However, we hold that the bond was
nonetheless valid after the February 17 hearing because of Koeppen's
intervening notice of intent to pursue postconviction relief.
We also conclude that
Judge Dreyfus was not precluded from ordering the bond because the jail
sentences against Koeppen were already stayed.
If Koeppen violated a condition of probation pending appeal, he could
face the revocation of his probation—an event which, absent the bond, would
require Koeppen to serve the sentences imposed by Judge Dreyfus. The bond assured that Koeppen would not be
required to serve the jail sentence until his appeal was completed. As we have noted, that is the very purpose
of the statute allowing release pending appeal.
Koeppen also contends
that the bond and its attendant conditions did not serve the purposes of
release pending appeal. He relies on
§ 969.09(2), Stats., which
mandates certain conditions of bond which assure, inter alia, that the
defendant will prosecute the appeal and will make all required future
appearances.
Koeppen overlooks,
however, that § 969.01(2), Stats.,
also permits the trial court to impose additional conditions of
probation as set out in § 969.02, Stats. These include, inter alia, at subsec. (3)(d)
“any nonmonetary condition deemed reasonably necessary to protect a member of
the community from serious bodily harm or prevent intimidation of witnesses ¼.” The condition ordering Koeppen to refrain
from any violent contact with his wife and family clearly qualifies under this
statutory provision.
These statutes stand in
total harmony with each other. Section
969.09(2), Stats., mandates
certain conditions of release pending appeal.
Sections 969.01(2)(a) and 969.02, Stats.,
permit certain additional discretionary conditions of release which the
trial court deems appropriate.
CONCLUSION
We hold that the bond
ordered by Judge Dreyfus was valid. As
such, Koeppen's later conduct in violation of the conditions of the bond
constituted a proper basis for the charge in this case. Judge Davis correctly rejected Koeppen's Franks
motion.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] Reserve Judge Frederick P. Kessler presided at the bench trial in this case. However, the substantive ruling which we review on appeal was made by the Honorable J. Mac Davis.
[2] Franks v. Delaware, 438 U.S. 154 (1978), holds that where a defendant makes a substantial preliminary showing that the state has knowingly and intentionally, or with reckless disregard for the truth, alleged a false statement necessary to a finding of probable cause, the defendant is entitled to a hearing on that claim. See id. at 155-56. If the defendant prevails on that claim at the hearing, the defendant is then entitled to a further determination whether probable cause exists without considering the improper information. See id.; see also State v. Mann, 123 Wis.2d 375, 378, 367 N.W.2d 209, 210 (1985).
[3] It is not clear from the record in this case whether this appeal was already taken at the time of the sentencing before Judge Dreyfus or whether the appeal was taken later.
[4] The supreme court in State v. Braun, 100 Wis.2d 77, 301 N.W.2d 180 (1981), was construing § 969.09(1), Stats., 1977.
[5] It may also be, however, that Judge Dreyfus considered this case to be back in a presentence posture. Judge Dreyfus noted at this hearing that it was not his intent that Koeppen's probation be held in indefinite abeyance and to leave Koeppen in a position in which there were no controls on his behavior. As such, Judge Dreyfus adjourned the hearing and directed the parties to be prepared at the adjourned hearing to address the matter of further sentencing. If that was the judge's mind-set, then the bond was a preconviction bond. See § 969.01(1), Stats.