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COURT OF APPEALS DECISION DATED AND RELEASED July 26, 1995 |
NOTICE |
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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. 92-2936-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TERRY L. BANKHEAD,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Kenosha County:
MARY KAY WAGNER-MALLOY, Judge. Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
PER
CURIAM. Terry L. Bankhead appeals from a judgment
convicting him of delivering cocaine.
The state public defender appointed Attorney Lynn M. Bureta as
Bankhead's appellate counsel. Bureta
filed and served a no merit report pursuant to Anders v. California,
386 U.S. 738 (1967), and Rule
809.32(1), Stats. Bankhead filed an extensive response. After an independent review of the appellate
record as mandated by Anders, we conclude that any further
appellate proceedings would lack arguable merit.
Bankhead pled guilty to
three counts of delivering cocaine as a repeater, contrary to
§§ 161.16(2)(b), 161.41(1)(c) and 161.48, Stats., 1991‑92.
The trial court imposed two consecutive nine-year sentences on two
counts, and imposed but stayed a ten-year consecutive sentence and placed
Bankhead on a ten-year consecutive term of probation on the third count.
Appellate counsel
addresses whether: (1) there was a
sufficient factual basis to accept the pleas; (2) Bankhead entered
knowing, intelligent and voluntary pleas; (3) the trial court erroneously
exercised its sentencing discretion and based its sentence on inaccurate
information in the presentence investigation report (PSI); and (4) Bankhead
received ineffective assistance of trial counsel. After reviewing the appellate record, we agree with counsel's
analysis and her conclusion that these issues lack arguable merit.
In his response, Bankhead
raises these issues and several others.
He contends that: (1) the
substance he possessed was not cocaine; (2) the sentence imposed was
illegal; (3) he is entitled to withdraw his guilty pleas; and (4) he was
denied the effective assistance of appellate counsel. We address Bankhead's contentions seriatim.
Bankhead contends there
was no factual basis to convict him of three counts and that the substance
involved was not cocaine. However,
defense counsel stipulated that the evidence at the preliminary hearing
provided a factual basis for the pleas.
In the guilty plea questionnaire and waiver of rights (questionnaire),
Bankhead initialed his assent to the court's use of the complaint as a factual
basis for his guilty pleas. In his
response, Bankhead contends that he believed that by pleading guilty, the State
would dismiss two of the three counts in their entirety. However, the questionnaire and transcript of
the plea hearing indicate that the State only agreed to dismiss the allegations
that each crime occurred within 1000 feet of a school, substantially reducing
his sentencing exposure. Section
161.49, Stats.
At the preliminary
hearing, the parties stipulated "to the cocaine and to the identity of the
substance as being cocaine for the prelim only." At that time, the prosecutor offered a copy of the lab reports
into evidence and defense counsel did not object.[1] While this stipulation was limited to the
preliminary hearing, entry of the guilty pleas constitutes an admission that
these substances were cocaine.
Bankhead contends that
his pleas were not entered knowingly, intelligently and voluntarily. A guilty plea waives all nonjurisdictional
defenses. State v. Riekkoff,
112 Wis.2d 119, 123, 332 N.W.2d 744, 746 (1983). A challenge to the validity of a plea must be raised initially in
the trial court. County of Racine
v. Smith, 122 Wis.2d 431, 438, 362 N.W.2d 439, 442 (Ct. App.
1984). Bankhead moved to withdraw his
pleas in the trial court, but later withdrew the motion. We independently review the record to determine
whether any arguable basis exists for Bankhead to challenge his pleas.
The trial court must
comply with the requirement for accepting a plea. Section 971.08(1), Stats.;
State v. Bangert, 131 Wis.2d 246, 261-62, 389 N.W.2d 12, 21
(1986). The trial court must determine
the defendant's education and general comprehension and establish his
understanding of the nature and range of punishment of the crimes charged. Id. at 261, 389 N.W.2d at
21. It also must ascertain whether
there were any promises or threats relating to the defendant's appearance and
his or her proposed pleas and whether a factual basis exists to support the
pleas. Id. at 262, 389
N.W.2d at 21.
The trial court
addressed Bankhead personally and explained how dismissal of the § 161.49,
Stats., allegation reduced the
sentencing exposure for each of the crimes.
The trial court asked Bankhead whether he had reviewed the questionnaire
with trial counsel and confirmed that he initialed twenty-three separate
paragraphs and that he understood the questionnaire's contents. Bankhead indicated in the questionnaire that
he was twenty-eight years old, had completed the tenth grade and had obtained
his general equivalency diploma. He
also indicated that he was not using alcohol, drugs or medication that would
interfere with his understanding of court proceedings. Bankhead understood the numerous
constitutional rights he was forfeiting.
Although Bankhead complains that the trial court's colloquy was
principally with trial counsel, trial counsel explained the various nuances of
this particular plea agreement to the court and the extent of his discussions
with Bankhead. Bankhead could have
addressed the court to correct any misstatements by trial counsel. He did not do so and answered the trial
court's inquiries. We conclude that the
plea colloquy and the questionnaire indicate that Bankhead understood the
proceedings and that he entered his guilty pleas knowingly, intelligently and
voluntarily. Challenging the pleas
would lack arguable merit.
Bankhead is confused
about which charges were dismissed.
However, the confusion in his response cannot override his understanding
at the plea hearing, and confirmed in the questionnaire, where trial counsel
and the court explained the ramifications of the plea agreement to him. Incident to the plea agreement, the school
zone enhancer of § 161.49, Stats.,
was dismissed; the repeater enhancer of § 161.48, Stats., was not.
Bankhead argues that he
was convicted of violating § 161.14(2)(b), Stats., instead of § 161.16(2)(b), Stats. Bankhead is
correct that the trial court found him "guilty of the crime of delivery of
a controlled substance in violation of 161.14(2)(b) and 161.41(1)(c) and
161.49." However, our review of
the record, including the questionnaire, transcripts and the judgment,
demonstrates that the trial court's oral acceptance of Bankhead's plea to
having violated § 161.14(2)(b), instead of § 161.16(2)(b), was not
prejudicial because he clearly understood at that time that he had pled guilty
to violating § 161.16(2)(b).
Likewise, the trial court's failure to accept his pleas to these crimes
as a repeater was not prejudicial since the remainder of the record clearly
indicates that Bankhead knew that he was pleading guilty as a repeater. See § 161.48, Stats.
Bankhead also contends
that the sentence must be vacated because it exceeds the maximum sentencing
exposure for these crimes. However, as
discussed previously, each penalty was enhanced because he pled guilty to delivery
of cocaine as a repeater under § 161.48, Stats. Bankhead also contends that the PSI
inaccurately states that he was involved with gangs. He acknowledges that the trial court did not consider the
inaccurate information at sentencing, but that the inaccuracies regarding gang
involvement have followed him in prison.
However, trial counsel corrected several inaccuracies in the PSI,
including the misinformation on gang involvement. The trial court applied the appropriate sentencing factors. Consequently, challenging the sentence would
lack arguable merit.
Bankhead also claims
ineffective assistance of appellate counsel and resents her filing a no merit
report. However, Rule 809.32(1), Stats., recognizes the inherent disagreement between
appellate counsel and an appellant, thereby providing the appellant with an
opportunity to respond.[2] Bankhead's contention that appellate counsel
was ineffective must be pursued by a petition for a writ of habeas corpus in
this court. See State v.
Knight, 168 Wis.2d 509, 522, 484 N.W.2d 540, 545 (1992). We will not review it on direct appeal. See id. at 512-13, 484
N.W.2d at 540-41.
We have addressed each
issue disclosed by Bankhead. Upon our
independent review of the record as mandated by Anders and Rule 809.32(3), Stats., we conclude that there are no other meritorious
issues and that any further appellate proceedings would lack arguable
merit. Accordingly, we affirm the
judgment of conviction and relieve Attorney Lynn M. Bureta of any further
appellate representation of Bankhead.
By the Court.—Judgment
affirmed.