COURT OF APPEALS DECISION DATED AND RELEASED August 1, 1995 |
NOTICE |
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. 94-1858-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CARLOS LUCHO PHILLIPS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
VICTOR MANIAN, Judge. Affirmed.
Before Sullivan, Fine
and Schudson, JJ.
PER
CURIAM. A jury found Carlos Lucho Phillips guilty of
aggravated battery, while armed, in violation of §§ 940.19(2) and 939.63, Stats.
He was convicted and sentenced to the maximum sentence of fifteen years
in prison, with credit for 172 days presentence incarceration.
The state public
defender appointed Michael W. Schnake to represent Phillips on appeal. Schnake has filed a no merit report pursuant
to Rule 809.32, Stats., and Anders v. California,
386 U.S. 738 (1967). Phillips received
a copy of the no merit report and filed a response.
According to the
testimony of the victim, DeEtta J. Bell, she was talking on the telephone when
Phillips arrived at her home. She
opened the door for him and resumed her conversation. Without warning, Phillips sat on her lap, pinning her arms
down. He wrapped the telephone cord
around her neck and cut her with a knife.
Bell testified that Phillips asked why she did not love him and why she
had left him. He also said that if he
could not be with her, no one would.
Bell testified that after she managed to slide to the floor, Phillips
cut the back of her neck and ran from the house. Bell also left the house and ran across the street for help. Phillips grabbed her after she crossed the
street, commenting that she was not dead yet and asking if she wanted
more. As Phillips and Bell struggled,
Phillips slashed and kicked Bell. Bell
ultimately lost consciousness. She had
cuts on her back, neck, arms, shoulders, and legs.
The emergency room
doctor who treated Bell testified that 175 stitches were required to close the
cuts. Although none of the wounds was
life-threatening, they were inflicted in a way that caused considerable
scarring and pain.
Both the no merit report
and Phillips's response raise the issue of whether the trial court erroneously
exercised its discretion when it allowed the information to be amended and
denied Phillips's request for a preliminary hearing. Schnake correctly concludes that the issue lacks arguable
merit.
Phillips was originally
charged with second-degree reckless injury in violation of § 940.23(2), Stats.
Concerned that testimony might cause the prosecution to increase the
charge, Phillips made a strategic decision to waive the preliminary
hearing. This strategy was
unsuccessful. After Phillips waived the
preliminary hearing and was arraigned, the information was amended to the greater,
enhanced charge for which he was convicted.
The district attorney
may increase a charge after waiver of the preliminary hearing provided the new
charge is supported by the facts in the original complaint. State v. Michels, 141 Wis.2d
81, 89, 414 N.W.2d 311, 313 (Ct. App. 1987).
Additionally, a trial court may allow amendment of the information
between the time of arraignment and trial if there is no prejudice to the
defendant's right to notice, speedy trial, or opportunity to defend. Whitaker v. State, 83 Wis.2d
368, 374, 265 N.W.2d 575, 579 (1978).
Phillips was not prejudiced by the amendment. Further, he requested a new preliminary hearing for discovery
purposes; however, discovery is not a purpose of the preliminary hearing. State v. Camara, 28 Wis.2d
365, 372-73, 137 N.W.2d 1, 5 (1965).
The no merit report and
Phillips's response also address whether the trial court erroneously exercised
its discretion when it denied a mistrial.
Phillips moved for a mistrial when a witness testified, in violation of
a prior court ruling, that Phillips was on parole and supporting himself by
selling blood. The testimony occurred
during Phillips's cross-examination of the officer who interrogated him.
The court noted that
several prior questions about the content of Phillips's statement had been
answered in narrative form, and the officer had followed this pattern. The court concluded that the officer was not
trying to sneak in the information and, because Phillips had testified, the
jury knew he had two prior convictions.
The trial court concluded that the testimony was harmless. A motion for a mistrial is discretionary, Haskins
v. State, 97 Wis.2d 408, 419, 294 N.W.2d 25, 33 (1980), and here there
was no erroneous exercise of discretion.
Additionally, the no
merit report addresses the issue of juror bias raised in a letter Phillips sent
to the trial court prior to sentencing.
Schnake concludes that this possible issue lacks merit. Based upon our independent review of the
record, including the letter, we conclude that counsel is correct.
In his response,
Phillips contends that his right to a speedy trial was violated and that his
case was unfairly reassigned to a different trial court. Pursuant to § 971.10(2)(a) & (b), Stats., the trial of a felony defendant
is to commence within ninety days from the date a speedy trial is demanded even
if reassignment to a different court is necessary. Phillips made his speedy trial demand on September 13. The ninetieth day fell on Sunday, December
12. On Monday, December 13, the case
was assigned to a different court, and trial commenced. The trial was timely because the ninety-day
deadline fell on a weekend. See
§§ 972.11 (1) and 801.15(1)(b), Stats. The assignment to a different trial court
was necessary to comply with the speedy trial demand.
Finally, Phillips
alleges in his response that trial counsel failed to call the witnesses he
asked counsel to subpoena. Phillips
does not identify the potential witnesses nor their expected testimony. Absent such factual assertions, this
conclusory allegation is inadequate to raise a potential appealable issue. See State v. Washington, 176
Wis.2d 205, 214-15, 500 N.W.2d 331, 335-36 (Ct. App. 1993).
Based upon our
independent review of the record, we also conclude that a challenge to the
sufficiency of the evidence lacks arguable merit. An appellate court will affirm a conviction if it can conclude
that a jury, acting reasonably, could be convinced, beyond a reasonable doubt,
by evidence the jurors had a right to believe and accept as true. State v. Teynor, 141 Wis.2d
187, 204, 414 N.W.2d 76, 82 (Ct. App. 1987).
The reviewing court considers the evidence in the light most favorable
to the jury's verdict. State v.
Barksdale, 160 Wis.2d 284, 289-90, 466 N.W.2d 198, 200 (Ct. App.
1991). Bell's testimony, summarized
earlier, together with the testimony of the emergency room physician,
adequately supports the verdict.
The record also
establishes that the trial court did not erroneously exercise its discretion
when imposing sentence. Sentencing is
within the trial court's discretion, State v. Larsen, 141 Wis.2d
412, 426, 415 N.W.2d 535, 541 (Ct. App. 1987), and the court is presumed to
have acted reasonably, State v. Haskins, 139 Wis.2d 257, 268, 407
N.W.2d 309, 314 (Ct. App. 1987). A
defendant bears the burden of showing, from the record, that a sentence is
unreasonable. Id. The trial court emphasized the brutal,
vicious nature of the attack and its long-term impact, as well as Phillips's
total denial of responsibility and his illogical self-defense claim. The court also considered the need to deter
similar behavior in the future and to protect the public.
Our independent review
of the record did not disclose any additional potential issues for appeal. Therefore, any further proceedings on
Phillips's behalf would be frivolous and without arguable merit within the
meaning of Anders and Rule 809.32(1),
Stats. Accordingly, the judgment of conviction is affirmed, and Schnake
is relieved of any further representation of Phillips in this appeal.
By the Court.—Judgment
affirmed.