COURT OF APPEALS DECISION DATED AND RELEASED November 14, 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. 96-2084-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ROBERT R. SHAFFER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for La Crosse County: JOHN J. PERLICH, Judge. Affirmed.
Before Dykman, P.J.,
Vergeront and Deininger, JJ.
PER
CURIAM. Counsel for Robert R. Shaffer has filed a no merit
report pursuant to Rule 809.32, Stats.
Shaffer was informed of his right to respond to the no merit report and
has elected not to respond. Upon our
independent review of the record as mandated by Anders v. California,
386 U.S. 738 (1967), we conclude that there is no arguable merit to any issue
that could be raised on appeal.
Shaffer was charged with
second-degree sexual assault and bail jumping as a habitual offender. The victim testified that she awakened to
find Shaffer inserting his finger into her vagina. The State presented other acts evidence relating to Shaffer's two
previous sexual assault convictions. It
also presented evidence that this offense was committed while Shaffer was
released on bail, thereby violating the conditions of his bail. The defense called no witnesses. The jury found Shaffer guilty of both counts
and the court imposed consecutive sentences totaling twenty years.
The no merit report
addresses only one issue: whether the
State proved that Shaffer was a repeat offender subject to an enhanced penalty
under § 939.62, Stats. We agree with counsel's analysis of this
issue. The presentence report, which
contained the date of a previous conviction within the preceding five years,
presented adequate proof of Shaffer's repeater status. See State v. Farr, 119 Wis.2d
651, 658, 350 N.W.2d 640, 644-45 (1984).
We have also
independently reviewed the record to determine whether sufficient evidence
supports the convictions, whether Shaffer received effective assistance of
counsel and whether the sentences constitute an appropriate exercise of the
trial court's discretion. We conclude
that none of these issues provides a basis for an appeal.
The State presented
sufficient evidence to support the convictions. The test is whether the evidence adduced, believed and rationally
considered by the jury was sufficient to prove Shaffer's guilt beyond a
reasonable doubt. See State
v. Koller, 87 Wis.2d 253, 266, 274 N.W.2d 651, 658 (1979). We must uphold the verdict unless the
evidence, when considered most favorably to the State and the conviction, is so
insufficient in probative value and force that it can be said as a matter of
law that no trier of fact acting reasonably could be convinced beyond a
reasonable doubt. Id. The victim's testimony is sufficient to
establish all of the elements of second-degree sexual assault. The defense stipulated that this offense was
committed while Shaffer was released on bond.
The record discloses no
basis for challenging the effective assistance of Shaffer's trial counsel. To establish ineffective assistance of
counsel, Shaffer would have to show that his counsel's performance fell below
an objective standard of reasonableness and that his counsel's deficient
performance prejudiced the defense. Strickland
v. Washington, 466 U.S. 668, 687-88 (1984). Counsel's decision to present no defense does not establish
deficient performance. Nothing in the
record suggests that Shaffer had a defense to present. Shaffer's prior record and confrontational
attitude would have made him a poor witness.
Shaffer concurred in the strategic decision not to testify. Shaffer's counsel succeeded in limiting the
evidence relating to other sexual assaults Shaffer committed. He counseled Shaffer against wearing his
jail uniform at trial, advice that Shaffer rejected. Counsel also argued several mitigating factors for the court to
consider at sentencing. The record
before this court does not establish deficient performance by Shaffer's trial
counsel.
Finally, the trial court
properly exercised its sentencing discretion.
In addition to the seriousness of the offenses, the court appropriately
considered Shaffer's prior convictions, his character and social traits, the
need for close rehabilitative control and the rights of the public. State v. Tew, 54 Wis.2d 361,
367-68, 195 N.W.2d 615, 619 (1972).
Our independent review
of the record discloses no other possible basis for appeal. Therefore, we relieve Attorney Thomas E.
Knothe from further representing Shaffer in this matter and affirm the judgment
of conviction.
By the Court.—Judgment
affirmed.