COURT OF APPEALS DECISION DATED AND FILED August 21, 2008 David R. Schanker Clerk of Court of Appeals |
|
NOTICE |
|
|
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
|
Appeal No. |
|
|||
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
DISTRICT IV |
|||
|
|
|||
|
|
|||
State of
Plaintiff-Respondent, v. Robert F. Lins,
Defendant-Appellant. |
||||
|
|
|||
APPEAL
from a judgment and order of the circuit court for
Before Dykman, Vergeront and Bridge, JJ.
¶1 PER CURIAM. Robert Lins appeals a judgment convicting him of one count of second-degree sexual assault with use of force, one count of false imprisonment, and one count of misdemeanor battery. He also appeals an order denying his motion for postconviction relief. He argues that he did not knowingly waive his right to counsel and that the circuit court erred in sentencing him based on disputed factual information without giving him an opportunity to rebut it. We affirm in part, reverse in part, and remand for resentencing.
¶2 Lins first argues that he did not knowingly waive his right
to trial counsel. “When a defendant
seeks to proceed pro se, the circuit court must insure that the defendant (1)
has knowingly, intelligently and voluntarily waived the right to counsel, and
(2) is competent to proceed pro se.”
¶3 Lins contends that his waiver of the right to counsel was not valid because he did not understand the possible penalties he faced when he decided to proceed pro se. During the waiver colloquy, Lins told the court that he was aware of the seriousness of the charges against him and said that he knew that the maximum penalty he faced was forty years in prison. Lins actually faced up to forty-six years and nine months of imprisonment because the charges had been amended shortly before trial to include false imprisonment and battery. Lins contends that he was not aware that he faced this additional prison time.
¶4 Although the circuit court said nothing about the specific
penalties pertaining to the false imprisonment and battery charges when the
charges were amended or during the waiver colloquy, Lins acknowledged that he
understood that the penalties against him included forty years of imprisonment. While forty-six years is more than forty
years, Lins understood “the general range
of possible penalties.” See Pickens, 96
¶5 Lins also contends that his waiver of the right to counsel was involuntary because the record does not establish that he understood that the charges had been amended from one count of second-degree sexual assault to include false imprisonment and misdemeanor battery. The record belies this claim. Lins was present when the information was amended to include the charges and when the charges were recited in detail at the beginning of trial. The circuit court referred to the charges (plural) that Lins faced during the waiver colloquy. Because Lins was present when the three charges against him were discussed on numerous occasions, we reject this argument.
¶6 Lins next argues that the circuit court erred at sentencing by
considering disputed factual information without affording him an opportunity
to rebut it. “A defendant has a due
process right to be sentenced on the basis of true and correct information.” State v. Anderson, 222
¶7 During sentencing, the prosecutor discussed at great length a
prior incident in
¶8 The circuit court should not have relied on the
By the Court.—Judgment and order affirmed in part; reversed in part and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.