COURT OF APPEALS DECISION DATED AND FILED April 29, 2009 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 WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Respondent, v. Ronald W. Taleronik,
Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before
¶1 PER CURIAM. Ronald W. Taleronik, pro se, appeals an order denying his motion
for postconviction relief by which he sought to withdraw his guilty plea, set
aside the judgment of conviction and vacate his sentence. None of his arguments persuade us. We affirm.
¶2 In
October 1997, Taleronik was taken into custody for allegedly violating parole
in one Brown county and two Shawano county cases. In 1999, he was charged with theft by fraud,
contrary to Wis. Stat. § 943.20(1)(d)
(2007-08).[1] The complaint alleged that between July 23
and September 5, 1997, Taleronik sold advertising to Racine and Kenosha
businesses in two newspapers he claimed to be starting, The Post and The
Agenda; that he represented having a subscriber base of 5,000 but actually
had none; and that he published only one edition of The Post and none of
The Agenda. It also alleged that
Taleronik defrauded customers out of over $2500. Pursuant to a plea agreement, Taleronik pled
guilty and the parties stipulated that he owed $3,331.99 in restitution. In January 2000, the court withheld sentence
and ordered ten years’ probation and ordered Taleronik to pay the stipulated
restitution.
¶3 In
May 2001, Taleronik’s Shawano county probation was revoked. He was released in June 2005 only to be
revoked again in June 2007 on both the Shawano and
¶4 Taleronik filed a pro se Wis. Stat. § 974.06 motion for postconviction relief seeking to withdraw his guilty plea and to have the January 2000 withheld sentence and order for ten years’ probation vacated. He raised myriad issues: (1) double jeopardy[2]; (2) that the Wis. Stat. § 943.20(1)(d) theft-by-fraud charge was duplicitous because it improperly aggregated all the victims’ losses to reach the $2500 statutory threshold; (3) that the trial court lacked subject matter jurisdiction; (4) that his plea, conviction and sentence hinged on inaccurate information; (5) that an unnecessary charging delay deprived him of a speedy trial, causing a manifest injustice; (6) that his restitution should be modified to zero; (7) that his guilty plea did not waive nonjurisdictional defenses; and (8) that a new factor warrants the relief he seeks. Construing the motion as one filed pursuant to Wis. Stat. Rule 809.30, the court denied it after examining each issue.[3]
¶5 On appeal, Taleronik resurrects all of the same challenges
except double jeopardy, which he
affirmatively abandons. Each of his
claims fails, however, because, by pleading guilty, he waived—or, more
precisely, forfeited —the right to appeal them.
See State v. Kelty, 2006 WI 101, ¶18 and n.11, 294
Wis. 2d 62, 716 N.W.2d 886 (observing the general rule that a guilty plea
waives all nonjurisdictional defects, including constitutional claims, but
noting that “forfeiture” more accurately conveys the effect of a plea because “waiver” means an intentional relinquishment
of a known right). Taleronik asserts,
however, that State v. Hubbard, 206
¶6 In
Hubbard, we noted
¶7 Taleronik
contends The Post and The Agenda were two separate schemes, each
with its own victims. He argues that
because the prosecutor combined all of the fraudulent acts into one charge so
as to reach the $2500 statutory threshold, a Class C felony, see Wis. Stat. § 943.20(3)(c)
(1999-2000), the single theft-by-fraud
charge against him is duplicitous. We
first examine the factual allegations of the criminal complaint to determine whether
it states more than one offense. State
v. Lomagro, 113
¶8 The
complaint alleges that between July 23 and September 5, 1997, Taleronik
fraudulently obtained advertising revenues from forty-eight businesses for The
Post which he represented had a subscriber base of 5,000 and from
thirty-three businesses for The Agenda, which he represented would
circulate to 8,000 business owners.
Because the individual ad sales in that thirteen-day period properly
could be viewed as one continuing offense, it was within the State’s discretion
to charge it as such. See id. Furthermore, the court explained to Taleronik
the elements of the crime, that it was a Class C felony and that his repeater
status could enhance the penalty.
Taleronik expressly confirmed that he had no questions about the nature
of the charge. He points to the “victim
list,” compiled for restitution purposes, to prove that each act was discrete
and asserts that the two papers were separate enterprises. Nothing on the victim list or elsewhere in
the record elevates his claims above the level of bald assertions. The charge was not duplicitous.
¶9 Taleronik
also contends the trial court lacked subject matter jurisdiction because, since
he claimed to have sold some of the ads in
¶10 A
person is subject to prosecution and punishment under Wisconsin law if the person
commits a crime, any of the constituent elements of which takes place in
¶11 The
complaint alleged that Taleronik represented to
¶12 Taleronik
next asserts that his plea, plea agreement, conviction and sentence all were
premised on inaccurate information. A
defendant who moves for resentencing on the ground that the trial court relied
on inaccurate information must establish that there was information before the
sentencing court that was inaccurate, and that the trial court actually relied
on the inaccurate information. State
v. Tiepelman, 2006 WI 66, ¶31, 291
¶13
What Taleronik assails as inaccurate was the court’s “erroneous view” that,
since some of his “business activities” were in
¶14 Taleronik
also complains of purposefully delayed charging due to vindictive
prosecution. He asserts that although
his criminal activity occurred in 1997, the prosecutor delayed charging him
until 1999, violating his right to a speedy trial and resulting in a manifest
injustice. This claim fails. First, by entering a guilty plea to the
charge, Taleronik waived the right to review his claim to this alleged
violation. See Foster v. State, 70
¶15 The last issue is whether restitution should be modified to zero. Taleronik claims to have paid full restitution but asserts that the Department of Corrections (DOC) applied a portion of it to the wrong account. Taleronik stipulated to the amount to be paid. We agree with the trial court that any dispute that the amount credited to him is incorrect is between Taleronik and the DOC. See Wis. Stat. § 973.20(11).
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Taleronik was charged as a repeater because of a 1995 Shawano county theft conviction. All references to the Wisconsin Statutes are to the 2007-08 version unless noted.
[2] The double jeopardy claim involved another
[3] In regard to the recasting of the postconviction motion, as noted, Taleronik moved for postconviction relief under Wis. Stat. § 974.06. The State moved to dismiss the motion on the basis that Taleronik failed to first exhaust his Wis. Stat. § 974.02 remedies. Instead of addressing the State’s motion, the court treated Taleronik’s motion as having been filed under Wis. Stat. Rule 809.30. It was timely under Rule 809.30 because this court extended the filing deadline to accommodate Taleronik’s decision to go pro se.
Each statutory approach has limitations. Under Wis.
Stat. Rule 809.30, Taleronik
could challenge only issues relating to
his post-revocation sentence.
[4] Double jeopardy in this context is not the double jeopardy issue Taleronik waived.