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COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 19, 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. 94-2475-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DANIEL HOYT,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
DANIEL L. KONKOL, Judge. Affirmed.
WEDEMEYER,
P.J. Daniel Hoyt appeals from a judgment convicting him of
disorderly conduct while armed.[1] The state public defender appointed Attorney
Michael P. Jakus as Hoyt's appellate counsel.
Attorney Jakus served and filed a no merit report pursuant to Anders
v. California, 386 U.S. 738 (1967) and Rule 809.32(1), Stats. Hoyt 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.
Hoyt pointed a rifle at
some "skinheads" who were threatening him.[2] A jury found Hoyt guilty of disorderly
conduct while armed, contrary to §§ 947.01 and 939.63, Stats.
The trial court sentenced Hoyt to the House of Correction for sixty days
with Huber Law privileges.
The no merit report
addresses four issues, three of which Hoyt also raises. Appellate counsel addresses whether the
trial court should have granted Hoyt's mistrial motion. We agree with counsel's description,
analysis and conclusion that Hoyt's personal waiver of his objection renders
any appellate challenge frivolous.
Appellate counsel and Hoyt raise the following issues: (1) whether the trial court erroneously
exercised its discretion in excluding evidence of Hoyt's knowledge of
gay-bashing in Los Angeles as irrelevant; (2) whether the trial court
committed reversible error in instructing the jury sua sponte on
self-defense and retreat, or in refusing to elaborate on that instruction;[3]
and (3) whether the trial court erroneously exercised its sentencing
discretion. We address Hoyt's
contentions, although we ultimately conclude that pursuing them would lack
arguable merit.
Defense counsel sought to elicit from Hoyt
that he had lived in Los Angeles where gay-bashing had occurred. Although the prosecutor objected and defense
counsel sought to make an offer of proof, it was not reported. At the conclusion of the evidence, the trial
court made a record that it had sustained the prosecutor's objection on the
basis of relevance, because this incident did not occur in Los Angeles. We agree with appellate counsel that
pursuing this issue in the context of the existing record would lack arguable
merit.
The trial court
instructed the jury on self-defense and retreat. Wis J I—Criminal
810. Hoyt does not object to the
instruction; he objects to the trial court's refusal to elaborate on that
instruction when the jury sought further assistance. However, our review of the record does not support Hoyt's
contention.
The jury asked the
bailiff for the definition of using a dangerous weapon. In response to that question, the court told
the bailiff to tell the jurors that they should refer to the jury
instructions. Thus, there is nothing in
the record to indicate that the jury inquired about the self-defense issue Hoyt
raises. However, it would lack arguable
merit to challenge the trial court's refusal to elaborate on a standard jury
instruction when it directed the jury to refer to the instructions.
Hoyt disagrees with the
sentence imposed. Although he misused a
dangerous weapon, he has not had any "violent recurrence," and he
implores this court to "dismiss" the sentence because justice will
not be served by placing him in custody.
Huber Law privileges are of no avail because he is employed out-of-state. Hoyt's postconviction conduct and
out-of-state employment do not entitle him to resentencing. State v. Solles, 169 Wis.2d
566, 570, 485 N.W.2d 457, 459 (Ct. App. 1992) ("courts base their
sentences on the circumstances before them at the time of sentencing [not
thereafter]"). To pursue these
issues would lack arguable merit.
On appeal, our review of
the sentence is limited to whether the trial court erroneously exercised its
discretion. State v. Larsen,
141 Wis.2d 412, 426, 415 N.W.2d 535, 541 (Ct. App. 1987). The primary factors to consider are the
gravity of the offense, the character of the offender, and the need for public
protection. Id. at 427,
415 N.W.2d at 541. The weight given to
each factor is within the trial court's discretion. Cunningham v. State, 76 Wis.2d 277, 282, 251 N.W.2d
65, 67-68 (1977).
The trial court
considered the primary sentencing factors.
It commented on the dangerousness of a rifle and emphasized that Hoyt's
"response to the name calling was confrontational and actually escalated
the situation .... I'm not saying people should be calling other people names,
but there has to be a little bit thicker skin instead of resorting to weapons
when somebody is called a name."
It considered the character of the offender. Hoyt was employed and his two prior convictions occurred in the
remote past. It was concerned that Hoyt
would "resort to a gun to take matters into his own hands and somehow be
an enforcer in the situation that obviously had gotten out of hand . . .
." However, it balanced that
against Hoyt's recognition that he had made a mistake. It recognized that the illegal use of
weapons poses a danger to public safety.
It concluded that some jail time was appropriate for Hoyt to realize
that the illegal use of a gun will not be tolerated. To challenge Hoyt's sentence for an erroneous exercise of
discretion would lack arguable merit.
We could construe some
of Hoyt's complaints as raising an ineffective assistance of trial counsel
claim. 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 issue, we cannot review
an ineffective assistance of trial counsel claim.
We have addressed each
issue disclosed by Hoyt. 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 Michael P. Jakus of any further
appellate representation of Hoyt.
By the Court.—Judgment
affirmed.