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. |
Nos.96-2416-CR-NM; 96-2417-CR-NM;
96-2418-CR-NM; 96-2419-CR-NM;
96-2420-CR-NM & 96-2421-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOHN R. MARTIN,
Defendant-Appellant.
APPEAL from judgments of
the circuit court for Waupaca County:
JOHN P. HOFFMANN, Judge. Affirmed.
Before Vergeront,
Roggensack and Deininger, JJ.
PER
CURIAM. These appeals arise from six cases which were disposed
of by a single plea agreement. Pursuant
to the agreement, John R. Martin pleaded no contest to and was convicted of two
counts of second-degree sexual assault of a child, one count of sexual
intercourse with a child over sixteen and three counts of bail jumping in
violation of §§ 948.02(2), 948.09 and 946.49(1)(b), Stats.[1]
In appeal no.
96-2416-CR-NM, Martin was charged with two misdemeanor burglary and two
misdemeanor theft counts for separate entries into a hunting cabin. He was also charged with second-degree
sexual assault of a child arising from an unrelated incident involving sexual
intercourse between Martin and R.M.T.
The theft and burglary counts were dismissed and read in for sentencing,
and Martin pleaded no contest to the sexual assault.
In appeal no.
96-2417-CR-NM, Martin was charged with five misdemeanor counts of issuing
worthless checks. The checks were
written after Martin was released on bail for the case in appeal no.
96-2416-CR-NM, and the complaint included one count of bail jumping. When the information was issued, three
additional bail-jumping charges were added.
Pursuant to the plea agreement, the worthless check charges were
dismissed and read in for consideration at sentencing. Martin pleaded no contest to one
bail-jumping count, and the others were dismissed outright.
Appeal no. 96-2418-CR-NM
arises from Martin's no contest plea to sexual intercourse with a child over
the age of sixteen. K.A.B. had
consensual sexual intercourse with Martin while Martin was free on bail. As a result, he was also charged with one
count of bail jumping, which was dismissed and read in for sentencing.
While Martin was free on
bail, he had sexual contact or sexual intercourse with J.A.C., who was under
sixteen. This is the case in appeal no.
96‑2419-CR-NM. On the basis of
Martin's admission that they had sexual intercourse at least five times, Martin
was originally charged with repeated acts of second-degree sexual assault of a
child in violation of §§ 948.02(2) and 948.025, Stats. As part of the
plea agreement, the charge was amended, and Martin pleaded no contest to
violating § 948.02(2) only.
Both appeal no.
96-2420-CR-NM and appeal no. 96-2421-CR-NM arise from cases in which the
prosecution charged Martin with six misdemeanor counts of issuing worthless
checks and six counts of bail jumping.
In each case, Martin pleaded to one count of bail jumping, and the
remaining bail-jumping charges were dismissed outright. The worthless check charges were all
dismissed and read in for consideration at sentencing.
Martin was sentenced to
consecutive four-year prison sentences for the sexual assault charges and nine
months in jail for the sexual intercourse offense. He was granted sentence credit of 169 days against the initial
sentence. Sentencing on the bail
jumping charges was withheld, and Martin was ordered to serve five years
probation for each charge. The periods
of probation were concurrent with each other and consecutive to
incarceration. Martin was ordered to
make restitution for the sexual assaults and worthless checks. He may challenge the amount of restitution
or his ability to pay the amount when he is released from confinement. Martin was also ordered to provide a DNA
specimen and to pay costs and fees.
The state public
defender appointed Len Kachinsky to represent Martin on appeal. Attorney Kachinsky has filed a no merit
report pursuant to Rule 809.32,
Stats., and Anders v.
California, 386 U.S. 738 (1967).
Martin received a copy of the no merit report and was advised of his
right to file a response. He has not
responded.
The no merit report
addresses whether Martin's no contest pleas were knowingly, intelligently and
voluntarily entered and whether the trial court erroneously exercised its
discretion when imposing sentence. The
no merit report also notes that entry of no contest pleas waives
non-jurisdictional defects and defenses.
Kachinsky concludes that these possible issues have no arguable merit. Based upon our independent review of the
record, we conclude that his analysis of the issues is correct.
In order to assure that
a plea is knowingly, voluntarily and intelligently entered, the trial court is
obligated by § 971.08(1)(a), Stats.,
to ascertain that a defendant understands the nature of the charges to which he
or she is pleading, the potential punishment for those charges, and the
constitutional rights being relinquished by entering a guilty or no contest
plea. See State v. Bangert,
131 Wis.2d 246, 260-62, 389 N.W.2d 12, 20-21 (1986). The plea colloquy between Martin and the trial court satisfied
this standard. Additionally, the court
adduced that an adequate factual basis existed for finding Martin guilty of the
charges. See § 971.08(1)(b).
Sentencing is within the
trial court's discretion, State v. Larsen, 141 Wis.2d 412, 426,
415 N.W.2d 535, 541 (Ct. App. 1987), and the court is presumed to have acted
reasonably, State v. Haskins, 139 Wis.2d 257, 268, 407 N.W.2d
309, 314 (Ct. App. 1987). The defendant
bears the burden of showing, from the record, that a sentence is
unreasonable. Id. The trial court considered Martin's personal
characteristics and the need for secure, close rehabilitative control over
him. Regarding the sexual assault
offenses, the court concluded that the gravity of the offenses and the need to
protect the public were paramount and that they justified consecutive terms of
incarceration. Because the bail-jumping
charges arose out of property offenses, the court concluded that probation was
appropriate.
Also as noted by
counsel, a no contest plea, voluntarily and understandingly made, constitutes
waiver of nonjurisdictional defects and defenses, including claims of violation
of constitutional rights prior to the entry of the plea. Bangert, 131 Wis.2d at 293,
389 N.W.2d at 34. Although an exception
exists for review of orders denying motions to suppress evidence and to
determine the admissibility of a defendant's statements, see §
971.31(10), Stats., no such
motions were filed in this case.
Our independent review
of the record did not disclose any additional potential issues for appeal. Therefore, any further proceedings on
Martin's behalf would be frivolous and without arguable merit within the meaning
of Anders and Rule 809.32(1),
Stats. Accordingly, the judgments of conviction are affirmed, and
Kachinsky is relieved of any further representation of Martin in these appeals.
By the Court.—Judgments
affirmed.
[1] The judgment of conviction entered in appeal no. 96-2419-CR-NM contains a parenthetical reference to § 939.623, Stats., (repeat serious sex crimes). This notation is not explained by the record. The complaint charged Martin with engaging in repeated acts of second-degree sexual assault of a child in violation of §§ 948.02(2) and 948.025, Stats. The plea agreement provided that Martin would plead to a violation of § 948.02(2) only. The court was not advised of an agreement that the enhancement provision would be included, and the court did not impose the minimum sentence mandated by § 939.623. After remand, the trial court should enter an amended judgment of conviction deleting the reference to § 939.623.