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. 96-2633-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TIMOTHY A. WASHBURN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for La Crosse County: RAMONA A. GONZALEZ, Judge. Affirmed.
ROGGENSACK, J.[1] Timothy
Washburn appeals from a judgment convicting him of five misdemeanors.[2] Counsel for Washburn has filed a no merit
report pursuant to § 809.32, Stats.,
and Anders v. California, 386 U.S. 738 (1967). Washburn received a copy of the report and
has responded by letter. Upon
consideration of the report, Washburn's letter and an independent review of the
record, as mandated by Anders, this court concludes there is no
arguable merit to any issue that could be raised on appeal. The judgment of conviction is affirmed.
BACKGROUND
All of the convictions
here appealed arise from traffic incidents in La Crosse County. Washburn pled guilty after being jailed for
failing to appear for trial, which had been delayed repeatedly. Most of the delays were at Washburn's
request, due to family illnesses and a continuum of attorneys. After accepting Washburn's pleas, the court
revoked his driver's license for three years; ordered him to pay fines in
excess of $2,800; and sentenced him to 200 days in jail, with Huber privileges,
and three years of probation.
DISCUSSION
Scope of Review.
When an appeal has been
filed and a no merit report submitted by defendant's counsel, this court
examines the report and any response from the defendant and conducts an
independent review of the record to determine whether there are any issues
which have arguable merit. Anders,
386 U.S. at 744.
Speedy
Trial.
The no merit report and
Washburn's letter both address only Washburn's constitutional right to a speedy
trial, so our examination begins there.
A plea of guilty, when voluntarily and understandingly made, constitutes
a waiver of non-jurisdictional defects and defenses, including allegations of
some types of constitutional violations which occurred prior to the plea. Mack v. State, 93 Wis.2d 287,
293, 286 N.W.2d 563, 566 (1980). A
defendant cannot challenge a judgment of conviction on the ground of denial of
a speedy trial, either by appeal or by the application for a postconviction
relief pursuant to § 974.06, Stats.,
after the court has accepted the defendant's guilty plea. Foster v. State, 70 Wis.2d 12,
19, 233 N.W.2d 411, 414 (1975). Here,
Washburn attempts to do exactly what Foster specifically
prohibits: he attempts to challenge his
conviction entered after a plea of guilty.
His plea waived any defect or defense based upon an allegation that the
State violated his constitutional right to a speedy trial. Further consideration of this issue on
appeal is without merit.
Appellant's
Plea.
It is possible to argue
that Washburn's plea was not knowingly, intelligently and voluntarily given, if
he did not fully understand that he was waiving his right to challenge his
conviction based on the denial of a speedy trial. Before a plea of guilty can be accepted, the trial court must
determine: (1) the extent of the
accused's education and general ability to comprehend; (2) the accused's
understanding of the nature of the crimes charged and the potential punishments
the court could impose; (3) the accused's understanding of the constitutional
rights he is waiving; (4) whether either promises or threats were made to the
accused to obtain his plea; and (5) whether a factual basis existed to support
convictions of the crimes charged. State
v. Bangert, 131 Wis.2d 246, 266-72, 389 N.W.2d 12, 22-25 (1986). A proper inquiry by the trial court ensures
that defendants enter their pleas knowingly, intelligently and
voluntarily. Id. This court reviews the record de novo
to determine whether the procedure used by the trial court in accepting the
plea was sufficient. Id.
at 286, 389 N.W.2d at 31.
Washburn entered his
pleas after negotiations with the State.
Washburn agreed to plead guilty to five counts in exchange for dismissal
of the remaining counts in five separate cases. The trial court reviewed Washburn's written plea agreement and
questioned Washburn in regard to his education and general understanding. The court told him his plea would be waiving
constitutional rights.
The plea colloquy was
quite extensive. The court reviewed the
five cases individually with Washburn, questioning him in regard to each charge
within each case to assure he understood the charges and to determine that there
were sufficient facts to support convictions on those charges to which pleas of
guilty were to be entered. The trial
court also meticulously explained the maximum sentences which it was free to
impose on each charge. And, because the
trial court dealt with the cases seriatim, the sentences were meted out seriatim,
as well. At no time during this long
and somewhat repetitive process did Washburn indicate that his pleas were not
being given in a knowing, intelligent and voluntary fashion. At one point in the plea hearing, Washburn
suggested there was yet another charge outstanding that the court did not have
before it and he asked if it were possible to resolve that charge as a read-in,
under the umbrella of the sentences which were being meted out for those
charges to which guilty pleas had been entered. His request was granted.
Washburn was not inexperienced in the courtroom process.
The plea colloquy
between Washburn and the trial court satisfies all requirements which Bangert
mandates; therefore, any postconviction challenge to the validity of his pleas
would lack arguable merit and deserves no further consideration on appeal.
CONCLUSION
Based on our independent
review of the record, as well as a thorough review of the no merit report and
Washburn's letter to the court, we find no basis for reversing the judgment of
conviction. Any further appellate
proceedings would be without arguable merit within the meaning of Anders
and § 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.
[2] Washburn was convicted of the following offenses: (1) operating after revocation, contrary to § 343.44(1), Stats.; (2) operating while intoxicated, contrary to § 346.63(1)(a), Stats.; (3) two counts of bail jumping, contrary to § 946.49(1)(a), Stats.; and (4) habitual traffic offender, contrary to § 351.08, Stats. As part of the plea agreement, a number of related charges were dismissed.