COURT OF APPEALS DECISION DATED AND FILED October 9, 2008 David R. Schanker Clerk of Court of Appeals |
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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. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of
Plaintiff-Respondent, v. Gerald L. Lynch, Jr.,
Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Dykman, Vergeront and Bridge, JJ.
¶1 PER CURIAM. Gerald Lynch, Jr., appeals an
order denying him Wis. Stat.
§ 974.06 (2005-06)[1]
relief from a conviction for homicide by intoxicated use of a vehicle, and two
counts of fleeing from an officer resulting in bodily harm. We affirmed his conviction in a prior
appeal.
¶2 A defendant convicted of a crime and sentenced to prison under Wis. Stat. ch. 940, entitled “Crimes Against Life and Bodily Security,” may not obtain early release from initial confinement under the earned release program. Wis. Stat. §§ 302.05(3)(a)1. and 973.01(3g). Consequently, the sentencing court declared Lynch ineligible for the program because homicide by intoxicated use of a vehicle is a ch. 940 crime. Wis. Stat. § 940.09.
¶3 In his first appeal, Lynch contended that Wis. Stat. §§ 302.05(3)(a)1. and 973.01(3g) violated
his constitutional rights to equal protection and substantive due process
because they do not exclude from earned release a person convicted of driving
while intoxicated without causing a death or great bodily harm. We concluded that the earned release statutes
did not violate his constitutional rights because the legislature had a
rational basis for excluding persons convicted of crimes under Wis. Stat. ch. 940 from the earned
release program. Lynch, 297
¶4 In this proceeding, Lynch alleged that counsel provided inadequate
representation because he should have challenged the constitutionality of Wis. Stat. §§ 302.05(3)(a)1. and 973.01(3g) on
other grounds. In Lynch’s view, counsel
should have based his equal protection and due process argument on the
different treatment accorded those convicted of Wis. Stat. ch. 940 offenses, who are excluded from earned
release, and those convicted of comparable crimes involving deaths or great
bodily harm in other chapters, who are not excluded from the program. Essentially,
appellate counsel argued that no rational basis existed to distinguish between
offenders who commit the same act but with different consequences. In Lynch’s view, counsel should have argued that
no rational basis existed to distinguish between offenders who commit different
acts but with the same consequences.
After hearing testimony from appellate counsel, the trial court denied
Lynch’s motion, resulting in this appeal.
¶5 A
defendant has the right to effective counsel on appeal. State v. Evans, 2004 WI 84, ¶30, 273
¶6 The “rational basis” test applies to challenges involving differences
in criminal penalties. Lynch,
297
¶7 Lynch has failed to demonstrate that counsel would have succeeded on his alternative constitutional challenge. Lynch argues, essentially, that all criminal acts that cause death or great bodily harm must be punished similarly. However, there is no authority for Lynch’s proposition. If there is a rational basis for doing so, the legislature may treat certain criminal acts as more serious than others, and impose harsher sanctions for those acts it considers more serious. See id., ¶18. The frequency of deaths and great bodily harm caused by drunk drivers provides a rational basis for treating Lynch’s offense more seriously than certain other acts causing death or great bodily harm, and excluding offenders from the earned release program is a rational means of imposing a more serious punishment, because doing so increases the prison time that the excluded offenders must serve.
¶8 Lynch also contends that appellate
counsel should have argued that the prosecutor’s discretion to charge the
defendant with a crime that excludes earned release, rather than one that permits
it, violates the separation of powers doctrine by removing the sentencing
court’s discretion. However, that
argument is meritless and counsel cannot be faulted for omitting it from the
appeal. A prosecutor’s discretion in
charging decisions is wide and approaches the quasi-judicial.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.