COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 18, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-3033-CR
STATE
OF WISCONSIN IN
COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GREGORY K. SCOTT,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Brown County:
VIVI L. DILWEG, Judge. Affirmed.
LaROCQUE, J. Gregory K. Scott appeals a misdemeanor
conviction for a violation of § 945.02(3), Stats., which prohibits possession of facilities to conduct a
lottery, with intent to conduct a lottery.
Pursuant to a plea bargain, the State reduced the initial charges of
four felony counts of dealing in gambling devices in violation of
§ 945.05(1)(b), Stats., to the misdemeanor offense and Scott pleaded no
contest. The circuit court withheld
sentence and placed Scott on probation for nine months. This court agrees with the State's
contention that Scott has inadequately briefed many issues he seeks to raise
and has waived various defenses asserted on appeal by virtue of his no contest
plea. Finally, with respect to Scott's
claim that there is no factual basis to support the charge, he has failed to
seek to withdraw his plea in the trial court.
The judgment is therefore affirmed.
The essence of Scott's
contentions are as follows: Slot
machines can be possessed for sale to legal entities and jurisdictions, in this
case Indian tribal casinos; federal law preempts the State criminal gambling statute;
the doctrine of res judicata bars this prosecution; he had permission to
possess the gambling devices from the Wisconsin Gaming Commission; he relied
upon advice of various federal officials' legal opinions to conduct his
business; the statute of which he stands convicted is unconstitutional; and the
facts do not support the charge.
Scott also requests for
the first time in his reply brief that certain materials, now attached as an
appendix to the brief, and allegedly relied upon by the circuit court in
resolving certain issues, be included in the record for purposes of
appeal. This request is contrary to the
Rules of Appellate procedure, in particular, Rule
809.15, Stats. Further, there is no support in the record
for Scott's contention that the materials "may have been inadvertently
placed in the record of the companion case or otherwise misplaced
...." The request to supplement
the record is denied.
In support of the
State's contention that Scott's appellate brief fails to meet even minimal
standards, it also notes that the record reflects that Scott practiced law for
ten years. He agreed to a consensual
revocation of his license in 1986. In
re Scott, 132 Wis.2d 222, 390 N.W.2d 572 (1986). Many of Scott's arguments are undeveloped or
improperly explained, are unsupported by citation to authority and include no
references to the record. See Rule 809.19(1)(d), Stats.
The State's reference to State v. Pettit, 171 Wis. 2d 627,
492 N.W. 2d 633 (Ct. App. 1992), is appropriate:
We
sometimes (perhaps too often) make allowances for appellate counsel’s failure
to abide by these rules. However, the
Court of Appeals of Wisconsin is a fast paced, high-volume court. There are limits beyond which we cannot go
in overlooking these kinds of failings.
Pettit's brief is so lacking in organization and substance that for us
to decide his issues, we would first have to develop them. We cannot serve as both advocate and
judge. In light of Pettit's inadequate
briefing of these remaining issues, we decline to address them. See Rule 809.83(2), Stats.
Id. at
647, 492 N.W.2d at 646-47 (footnote omitted).
Next, the general guilty
plea waiver rule applies to many issues raised on appeal in this case,
including constitutional issues. See
State v. Nelson, 108 Wis.2d 698, 701, 324 N.W.2d 292, 294 (Ct.
App. 1982) (a guilty plea, voluntarily and understandingly made, constitutes a
waiver of nonjurisdictional defects and defenses).
Next, Scott contends
that there is no factual basis to support the crime to which he entered his no
contest plea. This court concludes that
Scott's failure to seek a plea withdrawal bars him from asserting this
contention on appeal. At the time of
his plea, Scott was asked by the circuit court whether the court could use the
facts in the complaint and the preliminary hearing as a factual basis for the
plea, to which Scott answered in the affirmative. Whether grounds exist to withdraw a plea cannot be reviewed on
appeal absent a postconviction motion in the trial court. Id. at 701-02, 324 N.W.2d at
294. In his reply brief, Scott suggests
that he meant to suggest in his brief-in-chief that he was raising a question
of law, that is, whether slot machines are lottery devices. He says they are not, but cites no authority
in support. The record includes a letter
from the assistant attorney general, acting as special prosecutor for Brown
County, proposing the plea bargain that Scott accepted. The letter advised Scott that "When the
Wisconsin criminal code was drafted, it was made clear that a gambling machine
is a facility for conducting a lottery."
The letter quoted from 5 Wis. Leg. Council, Judiciary Committee, Report
on the Crim. Code, cmt. to § 345.01 at 153 (1953): "Although a person who plays a gambling
machine undoubtedly makes a bet or participates in a lottery, he usually does
not think of his conduct in those terms ...." Absent any authority to the contrary from Scott, the law
considers slot machines lottery devices.
For the preceding
reasons, the conviction for a misdemeanor gambling violation is affirmed.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.