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COURT OF APPEALS DECISION DATED AND RELEASED November 29, 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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1651-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DOUGLAS R. PEDERSEN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Kenosha County:
EMMANUEL VUVUNAS, Judge. Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
PER CURIAM. Douglas R. Pedersen
appeals from a judgment convicting him of escape. The state public defender appointed Attorney William J. Tyroler
as Pedersen's appellate counsel.
Tyroler served and filed a no merit report pursuant to Anders v.
California, 386 U.S. 738 (1967), and Rule
809.32(1), Stats. Pedersen filed a response. After an independent review of the record as
mandated by Anders, we conclude that any further appellate
proceedings would lack arguable merit.
A jury found Pedersen
guilty of felony escape, contrary to § 946.42(3)(a), Stats.
The trial court imposed a four-year sentence.
The no merit report
addresses the sufficiency of the evidence, two evidentiary issues[1]
and whether the trial court erroneously exercised its sentencing
discretion. After reviewing the
appellate record, we agree with counsel's description, analysis and conclusion
that pursuing these appellate issues would lack arguable merit. Pedersen raises these issues and focuses on
an evidentiary issue analyzed by appellate counsel, namely, whether the trial
court erroneously exercised its discretion in requiring Pedersen to proceed
without the testimony of a witness.
Pedersen also claims prosecutorial misconduct and ineffective assistance
of trial counsel. We address Pedersen's
contentions seriatim.
Pedersen admits that the
evidence is substantially undisputed.
He was in custody in the Kenosha County Jail with Huber law privileges
and was required to return by midnight.
However, Pedersen failed to return and was apprehended by police in
Chicago, returned to Kenosha and charged with felony escape. See § 946.42(3)(a), Stats.
"[A]n
appellate court may not reverse a conviction unless the evidence, viewed most
favorably to the State and the conviction, is so insufficient in probative
value and force that it can be said as a matter of law that no trier of fact,
acting reasonably, could have found guilt beyond a reasonable doubt." State v. Poellinger, 153
Wis.2d 493, 501, 451 N.W.2d 752, 755 (1990).
Pedersen does not
dispute the sufficiency of the evidence.
However, he claims that the State did not prove specific intent because
he did not intend to escape, but merely to be with his father before he died.[2] Although Pedersen had court authorization to
visit his terminally ill father, he had not obtained the requisite visitation
furlough because he did not believe he would be prosecuted.[3]
Pedersen wanted the
lawyer he had previously consulted to corroborate that he intended to turn
himself in. However, that lawyer did
not arrive. The trial court instead
advised the jury that the parties stipulated that Pedersen telephoned a lawyer
on a given date.
To pursue this issue
would lack arguable merit since Pedersen's witness did not arrive and trial
counsel failed to move for a continuance.[4] We agree with appellate counsel that most of
the testimony of this lawyer-witness would have been corroborative since
Pedersen testified about why he called the lawyer. Moreover, it is questionable whether this evidence would have
been relevant since contacting a lawyer after the escape would not negate
Pedersen's guilt.
Pedersen claims
prosecutorial misconduct for allowing false testimony by a sheriff's sergeant,
Edward L. Kamin, Jr. Kamin testified
that Pedersen was absent without leave ("AWOL") and required
apprehension on an escape warrant.
Pedersen claims that this was false because he waived extradition. However, this waiver did not negate his AWOL
status.[5] He also contends that trial counsel was
ineffective for failing to ameliorate this alleged prosecutorial
misconduct. We refute this contention
with Pedersen's other ineffective assistance of trial counsel claims.
Pedersen contends that
the sentencing court considered inaccurate information. A defendant has a due process right to be
sentenced on accurate information. State
ex rel. LeFebre v. Israel, 109 Wis.2d 337, 345, 325 N.W.2d 899, 903
(1982). However, trial counsel corrected the statement that Pedersen was
convicted of armed robbery rather than extortion. The trial court noted that both crimes were felonies and advised
trial counsel that it did not consider this distinction material for sentencing
on the escape conviction. Because
Pedersen has not shown that the trial court relied on this information, this
challenge would lack arguable merit.
Pedersen also claims
ineffective assistance of trial counsel.
However, "it is a prerequisite to a claim of ineffective
representation on appeal to preserve the testimony of trial counsel." State v. Machner, 92 Wis.2d
797, 804, 285 N.W.2d 905, 908 (Ct. App. 1979).
It is inappropriate for this court to determine the competency of trial
counsel on unsupported allegations. State
v. Simmons, 57 Wis.2d 285, 297, 203 N.W.2d 887, 894-95 (1973). Because there is no evidentiary record on
this claim, we do not review Pedersen's ineffective assistance of trial counsel
contentions.
We have addressed each
issue disclosed by Pedersen. 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 William J. Tyroler of any further
appellate representation of Pedersen in this appeal.
By the Court.—Judgment
affirmed.
[1] The first issue involved Pedersen's court appearance in shackles. Because the shackles were removed before the jury observed him, Pedersen admits that this issue lacks arguable merit. We address the second issue on the absence of a key witness.
[2] Pedersen erroneously implies that by waiving extradition he voluntarily returned to custody. First, we do not consider this argument because there is nothing in the record about waiving extradition. See Vredenburg v. Safety Devices Corp., 270 Wis. 36, 39, 70 N.W.2d 226, 228 (1955), overruled on other grounds by First Wis. Nat'l Bank v. Wichman, 85 Wis.2d 54, 270 N.W.2d 168 (1978). Second, waiving extradition is not voluntarily returning to custody. Third, waiving extradition and explaining the reasons for doing so are not relevant to whether Pedersen committed the crime of felony escape. See § 946.42(3)(a), Stats.
[3] The jury did not equate Pedersen's belief that he would not be prosecuted with the absence of specific intent.
[4]
Trial counsel asked for "a few minutes" to wait for this
lawyer-witness.
TRIAL COUNSEL: If I could have a few minutes,
your Honor?
TRIAL COURT:Not really. Let's go ahead.
TRIAL COUNSEL:I'd like to check
and see if Mr. Hanson [the lawyer-witness] is here.
TRIAL COURT:Go ahead. All right.
Let's take the jury out for five minutes. You be back in five minutes.
We'll start again at eleven o'clock.
Trial counsel did not formally move for a continuance. Consequently, this issue was not preserved for appellate review.