COURT OF APPEALS DECISION DATED AND RELEASED |
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July 10, 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, Stats. |
This
opinion is subject to further editing. If published, the official version
will appear in the bound volume of the Official Reports. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS DISTRICT IV |
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State
of Wisconsin,
Plaintiff-Respondent, v. Brent
L. Barber.
Defendant-Appellant. |
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APPEAL from a judgment of the circuit court for Dane County: michael N. nowakowski, Judge. Affirmed.
Vergeront, J.[1] Brent L. Barber appeals from a judgment
sentencing him for disorderly conduct and violating a domestic abuse
restraining order as a repeater after revocation of his probation for these
offenses. Barber’s appellate counsel filed a no merit report pursuant to Rule 809.32, Stats., and Anders v. California, 386 U.S. 738
(1967). Barber received a copy of the
report and was advised of his right to file a response. He has not done so. Upon consideration of the report and an
independent review of the record as mandated by Anders, we
conclude that there is no arguable merit to any issue that could be raised on
appeal. Therefore, we affirm the
judgment of conviction.
Barber was convicted of
the offenses which are the subject of this appeal in September 1995 and
received probation. The no merit report
addresses proceedings prior to his sentencing after revocation of probation: the entry of Barber’s pleas, the sentence
imposed at that time and whether Barber received effective assistance of
counsel. We lack jurisdiction to
address these issues. Barber did not
appeal from the 1995 conviction and sentence and the time for doing so has
expired. See State v.
Drake, 184 Wis.2d 396, 399, 515 N.W.2d 923, 924 (Ct. App. 1994). On this appeal from sentencing after
revocation, Barber is limited to raising issues relating to that sentence. Accordingly, we do not address the other
issues raised in the no merit report.
We have independently
reviewed the sentence after revocation.
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 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 protection of the public. See State v. Harris, 119 Wis.2d 612, 623, 350
N.W.2d 633, 639 (1984). The weight to
be given to these factors is within the trial court’s discretion. See Cunningham v. State, 76
Wis.2d 277, 282, 251 N.W.2d 65, 67-68 (1977).
Our review of the
sentencing transcript reveals that the court considered the appropriate
factors. The court considered the
gravity of the offense, Barber’s past failure while on probation, his history
of criminal activity, and the need to protect the public. The trial court
properly exercised its sentencing discretion.
While our review of the
sentencing after revocation reveals no basis for challenging trial counsel’s
performance, we note that it is well-settled that a claim of inadequate trial
counsel must be raised in the trial court.
See State v. Machner, 92 Wis.2d 797, 804, 285 N.W.2d
905, 908 (Ct. App. 1979). Without an evidentiary hearing, a reviewing court
cannot “determine whether trial counsel’s actions were the result of
incompetence or deliberate trial strategies.”
Id. Therefore, we
will not consider this issue further.
We affirm the judgment
of conviction and relieve Attorney Ronald K. Niesen of further
representation of Brent L. Barber in this matter.
By the Court.—Judgment affirmed.