COURT OF APPEALS DECISION DATED AND RELEASED January 9, 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. |
Nos. 96-1474-CR-NM
96-1475-CR-NM
96-1477-CR-NM
96-1479-CR-NM
96-1480-CR-NM
96-1481-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GABRIEL J. ALWIN,
Defendant-Appellant.
APPEALS from judgments
of the circuit court for Jefferson County:
ARNOLD SCHUMANN, Judge. Affirmed.
Before Eich, C.J.,
Vergeront and Roggensack, JJ.
PER
CURIAM. Gabriel Alwin's counsel filed a no merit report
pursuant to Rule 809.32, Stats.
Alwin filed a response alleging that his guilty and no contest pleas
were not knowingly entered because he mistakenly believed he was eligible to be
sentenced to the Division of Intensive Sanctions (DIS) and that his trial
counsel was ineffective for failing to adequately review possible motives of
witnesses to falsify their testimony.
Upon our independent review of the record as mandated by Anders v.
California, 386 U.S. 738 (1967), we conclude that any challenge to
Alwin's convictions or sentence would lack arguable merit.
Pursuant to a plea
agreement, Alwin entered no contest pleas to burglary, theft of a firearm,
furnishing a dangerous weapon to a child and two misdemeanor thefts. He also entered guilty pleas to four charges
of felony bail-jumping. Other charges
were dismissed, including three counts of intimidating a witness. The plea agreement reduced Alwin's maximum
penalty from over 100 years to forty-seven years and three months. The plea agreement also required the State
to cap its sentencing recommendation at ten years. The State actually recommended a sentence of eight years and nine
months, and the court sentenced Alwin to six years in prison followed by four
years' probation.
The no merit report
addresses whether Alwin's guilty and no contest pleas were knowingly,
intelligently and voluntarily entered; whether the trial court properly
exercised its sentencing discretion; and whether trial counsel provided Alwin
with effective assistance. Our
independent review of the record confirms counsel's analysis of these
issues. The trial court followed the
procedures set out in State v. Bangert, 131 Wis.2d 246, 260-62,
389 N.W.2d 12, 20-21 (1986), when it accepted Alwin's pleas. The court reminded Alwin of the
constitutional rights he waived by entering guilty and no contest pleas,
including the rights to cross-examine witnesses and to present a defense. A valid guilty or no contest plea
constitutes a waiver of all nonjurisdictional defects and defenses. See State v. Aniton,
183 Wis.2d 125, 129, 515 N.W.2d 302, 303 (Ct. App. 1994).
Alwin argues that his
pleas were not knowingly entered because he believed he was eligible for DIS sentencing
and therefore did not understand the consequences of his pleas. Alwin was eligible for DIS sentencing. The trial court strongly considered imposing
intensive sanctions, but concluded that the gravity of the offenses, Alwin's
character and the need to protect the public made intensive sanctions
inappropriate in this case.
Alwin argues that his
trial counsel was deficient for failing to investigate the possible motives of
witnesses to give false testimony. The
State's plea offer was valid only until the start of the preliminary
hearing. Therefore, counsel did not
have an opportunity to cross-examine witnesses or conduct discovery into their
possible motives. Trial counsel did
employ a private investigator who spent at least twenty-nine hours investigating
the case without discovering any helpful information. Alwin cites minor inconsistencies in the witnesses' statements to
the police and discrepancies that could have been used to cross-examine
witnesses had he chosen to go to trial.
These inconsistencies and discrepancies do not support a claim of
ineffective assistance of trial counsel for pursuing a negotiated plea. The prospect of vigorously cross-examining
some of the witnesses to the crimes charged, when compared with the substantial
concessions the State made in the plea agreement, reflects a reasonable
strategy that cannot be second-guessed on appeal. See Strickland v. Washington, 466 U.S. 668,
689 (1984).
Finally, there is no
arguable merit to any challenge to the trial court's sentencing
discretion. The trial court gave a
reasoned explanation for the sentence based on the gravity of the offenses,
Alwin's character and the need to protect the public. See State v. Larsen, 141 Wis.2d 412, 427,
415 N.W.2d 535, 541 (1987). The court
considered no improper factors and its sentence is not so excessive or
disproportionate to the offenses as to shock public sentiment. See State v. Morales,
51 Wis.2d 650, 657, 187 N.W.2d 841, 844 (1971).
Our independent review
of the record discloses no other potential issues for appeal. Therefore, we relieve Attorney Boris
Ouchakof of further representation of Alwin in this matter and affirm the
judgments of conviction.
By the Court.—Judgments
affirmed.