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COURT OF APPEALS DECISION DATED AND RELEASED September 7, 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. 94-2802-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JEFFREY M. WESOLOSKI,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Monroe County:
MICHAEL J. McALPINE,
Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Vergeront, J.
PER
CURIAM. Jeffrey M. Wesoloski appeals from a judgment
convicting him of escape contrary to § 946.42(3)(a), Stats.
Wesoloski received a four-year sentence after he entered a guilty plea.
Wesoloski's appellate
counsel filed a no merit report pursuant to Rule
809.32, Stats., and Anders
v. California, 386 U.S. 738 (1967).
Wesoloski received a copy of the report and was advised of his right to
file a response. He has not done
so. Upon consideration of the report
and an independent review of the record as mandated by Anders, we
conclude that there is no arguable merit to any issue that could be raised on
appeal. Therefore, we affirm the
judgment of conviction.
Wesoloski was charged
with felony escape after he failed to return to the Monroe County jail on
September 30, 1993.[1] On that date, Wesoloski was incarcerated
(with Huber privileges) under an August 25, 1993, nine-month sentence for
misdemeanor battery. Additionally,
Wesoloski was subject to a consecutive two-year probation term with sixty days
in the Monroe County jail as a condition of probation.
Our review of the record
discloses that Wesoloski's guilty plea was knowingly, voluntarily and
intelligently entered. See State
v. Bangert, 131 Wis.2d 246, 260, 389 N.W.2d 12, 20 (1986). The court confirmed that Wesoloski desired
to plead guilty to felony escape but that the State had not offered a plea
bargain. The court advised Wesoloski of
the maximum possible punishment for this crime and confirmed his age, the
extent of his education, and his understanding of the proceedings. The court reviewed the elements of the
crime, enumerated the various constitutional rights Wesoloski would waive by
his guilty plea and confirmed that Wesoloski understood those rights. The court ascertained that Wesoloski's
counsel had had a sufficient opportunity to discuss the case and the plea
decision with him and that Wesoloski was satisfied with the representation he
had received. The court found an
adequate factual basis for the plea based upon the evidence adduced at the
preliminary hearing. The court then
accepted Wesoloski's plea as having been knowingly, voluntarily and
intelligently entered.
On the basis of the plea
colloquy, we conclude that a challenge to Wesoloski's guilty plea as unknowing
or involuntary would lack arguable merit.
Furthermore, Wesoloski's plea waived any nonjurisdictional defects and
defenses, including claimed violations of constitutional rights. County of Racine v. Smith, 122
Wis.2d 431, 434, 362 N.W.2d 439, 441 (Ct. App. 1984).
We turn to the issue
raised in the no merit report: whether the felony escape charge was barred by State
v. Schaller, 70 Wis.2d 107, 233 N.W.2d 416 (1975). In Schaller, the court held
that a probationer confined in a county jail as a condition of probation may
not be convicted of escape under § 946.42, Stats. Schaller,
70 Wis.2d at 113-14, 233 N.W.2d at 419-20.
This issue lacks merit
because the facts of this case do not fall under Schaller. At the time he failed to return to the jail,
Wesoloski was serving a nine-month jail sentence; his probation term had yet to
begin. Therefore, Wesoloski was not a
probationer when he failed to return to the jail. Schaller does not apply.
We have also
independently reviewed the sentence.
Sentencing lies within the sound discretion of the trial court, and a
strong policy exists against appellate interference with that discretion. See State v. Haskins,
139 Wis.2d 257, 268, 407 N.W.2d 309, 314 (Ct. App. 1987). The primary factors to be considered by the
trial court in sentencing are the gravity of the offense, the character of the
offender and the need for protection of the public. State v. Harris, 119 Wis.2d 612, 623, 350 N.W.2d
633, 639 (1984). The weight to be given
to these factors is within the trial court's discretion. Cunningham v. State, 76 Wis.2d
277, 282, 251 N.W.2d 65, 67-68 (1977).
Our review of the
sentencing transcript reveals that the court considered the appropriate
factors. The court considered the
gravity of the offense, escaping while on Huber privilege, and found that
Wesoloski deliberately decided not to comply with the privilege offered to
him. The trial court reviewed
Wesoloski's history of criminal conduct and observed that probation had been
ineffective on previous occasions. The
court considered Wesoloski's character, noting that he was thirty-seven years
old and had an alcohol problem.
Finally, the court discussed the public's need to be protected from
someone who fails to return to jail while on Huber release. The four-year sentence imposed by the trial
court did not exceed the statutory maximum.
The trial court properly exercised its sentencing discretion.
We affirm the judgment
of conviction and relieve Attorney Ellen M. Thorn of further representation of
Jeffrey M. Wesoloski in this matter.
By the Court.—Judgment
affirmed.