COURT OF APPEALS DECISION DATED AND RELEASED |
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July 3, 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. 96-1805-CR-NM and 97-1247-CR-NM |
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STATE OF WISCONSIN |
IN COURT OF APPEALS DISTRICT IV |
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State
of Wisconsin,
Plaintiff-Respondent, v. David
Mikel,
Defendant-Appellant. |
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APPEALS from a judgment and an order of the circuit court for La Crosse County: ramona a. gonzalez, Judge. Affirmed.
Before Dykman, P.J., Vergeront and Roggensack, JJ.
PER
CURIAM. In these consolidated
appeals, David A. Mikel appeals from a judgment convicting him of conspiracy to
deliver tetrahydrocannabinols (THC) contrary to §§ 161.41(1)(h)3.[1] and 939.31,[2] Stats.,
and from an order denying his sentence modification motion. Mikel received a ten-year sentence after he
entered a guilty plea.
Mikel’s appellate
counsel filed a no merit report pursuant to Rule
809.32, Stats., and Anders
v. California, 386 U.S. 738 (1967).
Mikel received a copy of the report and was advised of his right to file
a response. He has not done so. Upon consideration of the report and an
independent review of the record as mandated by Anders, we
conclude that there is no arguable merit to any issue that could be raised on
appeal. Therefore, we affirm the
judgment of conviction.
The no merit report
addresses only whether the trial court properly exercised its sentencing
discretion. Noting that the trial court
denied a sentence modification motion, we ordered appellate counsel to seek the
entry of an order denying that motion so that this court would have
jurisdiction to review the trial court’s refusal to modify the sentence. We then consolidated the appeal from the
judgment of conviction (appeal number 96-1805-CR-NM) with the appeal from the
denial of sentence modification (appeal number 97-1247-CR-NM).
We note that the no
merit report does not discuss whether the acceptance of Mikel’s guilty plea
presents an issue of arguable merit. In
lieu of rejecting the no merit report as insufficient, we will undertake our independent
review of the record as mandated by Anders. However, counsel is warned that future
deficient no merit reports may be rejected.
Our review of the record
discloses that Mikel’s guilty plea was knowingly, voluntarily and intelligently
entered. See State v.
Bangert, 131 Wis.2d 246, 260, 389 N.W.2d 12, 20 (1986). The court confirmed the terms of the
negotiated plea agreement, advised Mikel of the maximum possible punishment for
this crime, confirmed his age and the extent of his education and that he
understood the proceedings and his attorneys.
The court reviewed the elements of the crime, enumerated the various
constitutional rights Mikel would waive by his guilty plea and confirmed that
Mikel understood those rights. The
court ascertained that Mikel’s counsel had had a sufficient opportunity to
discuss the case and the plea decision with his client and that Mikel was
satisfied with the representation he had received. The court found an adequate factual basis for the plea based upon
the evidence adduced at the preliminary hearing. The court then accepted Mikel’s plea as having been knowingly,
voluntarily and intelligently entered.
Based on the plea
colloquy, we conclude that a challenge to Mikel’s guilty plea as unknowing or
involuntary would lack arguable merit.
Furthermore, Mikel’s plea waived any nonjurisdictional defects and
defenses, including claimed violations of constitutional rights. County of Racine v. Smith, 122
Wis.2d 431, 434, 362 N.W.2d 439, 441 (Ct. App. 1984).
We turn to the issue raised
in the no merit report: whether the
trial court misused its sentencing discretion.
Sentencing lies within the sound discretion of the trial court, and a
strong policy exists against appellate interference with that discretion. See State v. Haskins,
139 Wis.2d 257, 268, 407 N.W.2d 309, 314 (Ct. App. 1987). The primary factors to be considered by the
trial court in sentencing are the gravity of the offense, the character of the
offender and the need for protection of the public. State v. Harris, 119 Wis.2d 612, 623, 350 N.W.2d
633, 639 (1984). The weight to be given
to these factors is within the trial court’s discretion. Cunningham v. State, 76 Wis.2d
277, 282, 251 N.W.2d 65, 67-68 (1977).
Our review of the
sentencing transcript reveals that the court considered the appropriate
factors. The court considered the
gravity of the offense, the need to protect the public, Mikel’s history of
criminal conduct and drug offenses, and that probation had been ineffective on
a previous occasion. The ten-year
sentence imposed by the trial court did not exceed the statutory maximum. The trial court properly exercised its
sentencing discretion.
Given the trial court’s
sentencing rationale, we also see no arguable merit to an appellate challenge
to the trial court’s order denying sentence modification. The trial court ruled that the ability of
the defendant to receive alcohol treatment while incarcerated was not a new
factor because the court was aware at sentencing that such treatment would be
delayed.
A new factor is a fact
relevant to the imposition of the sentence and unknown to the trial court at
the time of sentencing, State v. Kaster, 148 Wis.2d 789, 803, 436
N.W.2d 891, 897 (Ct. App. 1989), or which frustrates the sentencing court’s
intent. State v. Michels,
150 Wis.2d 94, 100, 441 N.W.2d 278, 281 (Ct. App. 1989). The matters raised by Mikel in his sentence
modification motion do not satisfy these criteria.
We affirm the judgment
of conviction and the order denying the sentence modification motion and
relieve Attorney Jeri A. Urbanski of further representation of David Mikel in
this matter.
By the Court.—Judgment and order affirmed.
This opinion will not be
published. See Rule
809.23(1)(b)5., Stats.