COURT OF APPEALS DECISION DATED AND RELEASED November 27, 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. 96-2028-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
BRUCE JOHNSEN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Waupaca County:
JOHN P. HOFFMANN, Judge. Affirmed.
Before Dykman, P.J.,
Vergeront and Roggensack, JJ.
PER
CURIAM. Bruce M. Johnsen[1]
pled no contest to one felony, possession of a firearm by a felon, and to two
misdemeanors, disorderly conduct while armed with a dangerous weapon and intentionally
pointing a firearm at a person. The
court sentenced Johnsen to two years in prison on the felony and to nine months
in jail on each misdemeanor, to run consecutively.
Johnsen's appellate
counsel, Attorney Richard J. Steffens, has filed a no merit report pursuant to Rule 809.32, Stats., and Anders v. California, 386 U.S. 734
(1967). Counsel personally served a
copy of the report on Johnsen, and advised him of the right to respond. Johnsen has not filed a response. As required by Anders, this
court has independently reviewed the record.
Because that review reveals no arguable appellate issues, we affirm.
In the no merit report,
appellate counsel addresses several issues that are not preserved for appellate
review. Johnsen did not challenge the
sufficiency of the complaint at the circuit court level.[2] Therefore, he waived any objection to the
complaint. See Day v.
State, 52 Wis.2d 122, 124-25, 187 N.W.2d 790, 791-92 (1971). A challenge to the bindover order was waived
by Johnsen's no contest plea. See
State v. Webb, 160 Wis.2d 622, 628, 467 N.W.2d 108, 110
(1991). Johnsen filed a pretrial
suppression motion, and the resultant order would be reviewable under
§ 971.31(10), Stats. However, the State dismissed several counts
in response to Johnsen's motion, and Johnsen then withdrew the motion as it pertained
to the remaining counts. Therefore, no
suppression issue remains.
Appellate counsel also
discusses Johnsen's competency to proceed.
Initially, Johnsen entered a not guilty by reason of mental disease or
defect plea. Johnsen was examined by Dr.
Frederick Fosdal, who concluded that Johnsen did not lack the "substantial
capacity to understand the proceedings or assist in his ... defense." Section 971.13(1), Stats. Furthermore,
Dr. Fosdal's report did not support Johnsen's NGI plea. See generally § 971.15(1), Stats. On the question of Johnsen's competency, we agree with appellate
counsel's conclusion that no arguably meritorious issue exists.[3]
We now turn to the plea
colloquy to determine if there is arguable merit to a postconviction challenge
to the validity of the plea. Johnsen
entered his no contest plea after negotiations with the State. Johnsen agreed to plead no contest to three
counts, and the remaining counts would be dismissed and read in for sentencing
purposes. The court explained the
elements of each crime that was being pled to and their maximum penalties. The court reviewed the various
constitutional rights that Johnsen would waive by his no contest plea. Johnsen indicated that he understood the
proceedings and the effect of his plea.
Occasionally, Johnsen expressed some hesitancy, and on each occasion,
the court inquired further into the reasons for Johnsen's equivocal response
until Johnsen had clarified that he understood and wanted to proceed with the
plea. The court reviewed Johnsen's plea
questionnaire. The questionnaire
contained some equivocal answers, and the court reviewed those topics at length
with Johnsen until the uncertainty was resolved.
Prior to sentencing,
Johnsen filed a motion to withdraw his no contest plea and to reinstate his NGI
plea.[4]
At the motion hearing, however, Johnsen
withdrew the motion and indicated his desire to proceed to sentencing. Again, the court questioned Johnsen at
length about his motivation, understanding and willingness to plead. Johnsen told the court that he believed he
could successfully pursue an NGI defense, but that he wanted to proceed with
the no contest plea.
In sum, the plea
colloquy reveals that, at times, Johnsen's intentions were unclear and that his
desire to plead no contest wavered.
Ultimately, however, Johnsen advised the court that he understood the
proceedings and that he was pleading no contest voluntarily. When Johnsen filed a motion to withdraw his
pleas, the court again addressed Johnsen's concerns. Johnsen's decision to go forward to take advantage of the benefit
of the plea agreement is reasonable, and the record shows that Johnsen made
that decision knowingly, voluntarily and intelligently. Further challenge to the validity of the
plea would lack arguable merit.
We next address Johnsen's
sentence. 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
trial court is presumed to have acted reasonably and the defendant has the
burden to show unreasonableness from the record. See id.
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 the protection of the
public. State v. Harris,
119 Wis.2d 612, 623, 350 N.W.2d 633, 639 (1984). The weight to be given the various factors is within the trial
court's discretion. Cunningham v.
State, 76 Wis.2d 277, 282, 251 N.W.2d 65, 67-68 (1977).
The record shows that
the court considered the appropriate sentencing factors. The court considered Johnsen's criminal
record and emphasized his longstanding possession of firearms despite his
status as a felon. The court felt that
incarceration was necessary to protect the public from further criminal
behavior and that probation would depreciate the seriousness of these offenses.[5]
Based on an independent
review of the record, this court finds no basis for reversing the judgment of
conviction. Any further appellate
proceedings would be without arguable merit within the meaning of Anders
and Rule 809.32, Stats.
Accordingly, the judgment of conviction is affirmed, and appellate
counsel is relieved of any further representation of the defendant on this
appeal.
By the Court.—Judgment
affirmed.
[1] The correct spelling of the appellant's name is unclear. While this court's records, derived from the notice of appeal, refer to the appellant as "Bruce Johnson," the judgment of conviction and other circuit court records, refer to the appellant as "Bruce M. Johnsen." Throughout this opinion, we will refer to the appellant as "Bruce M. Johnsen," and we direct the clerk of this court to amend its records accordingly.
[2] Johnsen did move to dismiss Count Eight for lack of probable cause. As part of the plea agreement, that count was dismissed and read in at sentencing.
[3] The impact of Johnsen's mental health on his ability to intelligently, voluntarily and knowingly enter a no contest plea will be discussed below.
[5]
Although the court's comments extend beyond these, the following paragraph
summarizes the court's rationale:
I think the only appropriate sentence is a significant period of incarceration to protect society as long as possible from further criminal activity by this defendant. I don't believe he can be supervised in the community and certainly I don't think placement in the county jail is appropriate. Also considering the gravity of this offense, it's just fortunate that this didn't turn out to a situation where somebody was harmed or died as a result of discharge of a firearm. So both the gravity of the offense and the protection of the public, I think, outweigh any personal characteristics of the defendant. And certainly if you look at the characteristics of the defendant, he hasn't exhibited any remorse or repentance and has continued to possess firearms over a numbers of years.