COURT OF APPEALS DECISION DATED AND RELEASED OCTOBER
17, 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. |
Nos.94-2810-CR-NM
94-2811-CR-NM
95-0771-CR-NM
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT III
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
DANIEL
J. KONSHAK,
Defendant-Appellant.
APPEAL
from judgments and an order of the circuit court for Brown County: VIVI L. DILWEG, Judge. Affirmed.
Before
Cane, P.J., LaRocque and Myse, JJ.
PER
CURIAM. Daniel J. Konshak appeals from
judgments convicting him of the misdemeanor offenses of exposing his genitals
to a child in violation of § 948.10, Stats.,
and neglecting a child in violation of § 948.21, Stats. (Court of
Appeals case no. 94-2810-CR-NM). He
also appeals from judgments convicting him of two felony counts of first degree
sexual assault of a child in violation of § 948.02(1), Stats., and one misdemeanor count of
causing a child to expose his genitals in violation of § 948.10. (Court of Appeals case No.
94-2811-CR-NM). In addition, he has
appealed from an order denying his motion for postconviction relief from all of
the judgments. (Court of Appeals case
No. 95-0771-CR-NM).
Konshak's
appellate counsel, Attorney Joseph M. Norby, has filed a no merit report and
supplemental no merit report pursuant to Rule
809.32, Stats., and Anders
v. California, 386 U.S. 738 (1967).[1] Konshak was served with a copy of both the
original report and the supplement, and has filed a response addressing
both. Upon consideration of the reports
and response and an independent review of the record, we conclude that there is
no arguable merit to any issue that could be raised on appeal. We therefore affirm the judgments and order
and relieve Attorney Norby of further representation of Konshak on appeal.
The
judgments of conviction were based upon Konshak's no contest pleas, and were
entered as part of a plea agreement in which numerous other charges were
dismissed. It is well-established that
a no contest plea, voluntarily and understandingly made, constitutes a waiver
of all non-jurisdictional defects and defenses. State v. Bangert, 131 Wis.2d 246, 293, 389 N.W.2d
12, 34 (1986). However, an exception
exists for challenges to trial court orders denying motions to suppress
evidence or determining that statements of the defendant are admissible. Section 971.31(10), Stats.
The
no merit reports and response address the following issues: (1) whether the trial court erroneously
admitted in evidence a statement given by Konshak to police in July 1992; (2)
whether the trial court erroneously exercised its discretion by denying
Konshak's pre-sentencing motion to withdraw his no contest pleas; and (3)
whether the trial court erroneously exercised its discretion by denying
Konshak's post-sentencing motion to withdraw his no contest pleas. Counsel's no merit reports also address the
issue of whether the trial court properly exercised its discretion in
sentencing Konshak, and whether Konshak is entitled to relief from his
sentences based on new factors.
Konshak's
response raises three additional issues: (1) whether the no merit reports
submitted by appellate counsel are defective because they fail to set forth the
facts and legal arguments which support Konshak's appeals; (2) whether the no
merit reports should be rejected because appellate counsel failed to provide
Konshak with a complete copy of the record, including any discovery materials
and supplementary investigatory results in his possession; and (3) whether
trial counsel rendered ineffective assistance of counsel when she failed to
request an in camera inspection of the counseling records of the alleged
victims in this case. None of these
issues have arguable merit.
Konshak
moved to suppress his statement to police on the ground that it was
involuntary. In determining whether a
statement was voluntarily made, the essential inquiry is whether the confession
was procured via coercive means or whether it was the product of improper
pressures exercised by the police. State
v. Clappes, 136 Wis.2d 222, 235-36, 401 N.W.2d 759, 765 (1987). This determination requires a consideration
of the totality of the circumstances surrounding the statement, requiring the
court to balance the personal characteristics of the defendant against the
pressures imposed upon him by police to induce him to respond to
questioning. Id. at 236,
401 N.W.2d at 765-66. While evidence
that police are taking subtle advantage of a person's personal characteristics
may be a form of coercion, State v. Xiong, 178 Wis.2d 525, 534,
504 N.W.2d 428, 431 (Ct. App. 1993), there must be some affirmative evidence of
improper police practices deliberately used to procure a confession, Clappes,
136 Wis.2d at 239, 401 N.W.2d at 767.
Following
an evidentiary hearing on Konshak's motion, the trial court made findings of
fact and determined that the statement was voluntary. The trial court's factual findings regarding the circumstances
surrounding the statement cannot be disturbed unless they are clearly
erroneous. Xiong, 178
Wis.2d at 531, 504 N.W.2d at 430. We
independently review the facts as found to determine whether any constitutional
principles have been offended. Clappes,
136 Wis.2d at 235, 401 N.W.2d at 765.
Konshak
argued at the hearing that his statement was coerced and involuntary based on
the length of the questioning, which began in an interview room at the police
department at approximately 3:30 p.m. and terminated at 10:15 p.m. He also argued that he was not told that he
was free to leave, and that the environment was coercive based on his emotional
condition and because he was a single parent concerned for his young children. It was undisputed that the police had come
to Konshak's home to ask him to accompany them to the police station for
questioning, and that he went with them after writing a note to an adult
neighbor, asking that person to continue watching his children until he
returned. The neighbor was watching the
children at a neighborhood park when Konshak left with police.
In
determining that Konshak's statement was voluntary, the trial court found, as
conceded by Konshak at the suppression hearing, that he was properly advised of
his Miranda rights before making his statement, and understood
and waived them. The trial court also
noted that Konshak never asked to stop the questioning, despite conceding in
his testimony that he understood that he could do so. While noting that Konshak had been diagnosed as suffering from
depression, the trial court found that there was no evidence that this
condition affected his statement in any way. In addition, while recognizing that
Konshak was concerned for his children, the trial court also found that when he
inquired about them, the interviewing officer honestly told him that they were
being cared for, albeit it was undisclosed to Konshak that they were in the
care of someone other than the neighbor with whom he left them.
The
trial court found Konshak's testimony regarding threats to be incredible, and
disbelieved his testimony that the interviewing officer told him that she would
do what she could to get him home to his children if he told her what she
wanted to hear and admitted the allegations.
While recognizing that the interview was lengthy, the trial court also
noted that the length alone did not render Konshak's statement involuntary,
particularly since he began giving his statement within three hours of when the
questioning began.
The
trial court's determination that the length of the interview, standing alone,
was not coercive is supported by the evidence that Konshak was offered and
accepted coffee and cigarettes, was allowed to use the rest room, and appeared
alert and did not complain of tiredness.
The trial court's finding that no threats were made is also supported by
the testimony of the interviewing officer, who testified that no promises or
threats were made, and that, contrary to Konshak's testimony, he was never told
that he could not leave. Based on the
evidence and the trial court's factual findings, no arguable basis exists for
challenging the trial court's order denying the suppression motion.
There
is also no arguable basis for challenging the trial court's denial of Konshak's
presentencing motion to withdraw his no contest pleas. Konshak entered his no contest pleas on June
21, 1993, and filed a motion to withdraw them almost two months later on August
19, 1993. In his motion he alleged that
he was innocent of the crimes charged, and believed that his children were
unduly influenced by social services into making false allegations against
him. He alleged that he entered the
pleas only because he was emotionally confused at the time and wanted to save
his children from the trauma of having to testify at trial. He stated that his mind was now clearer, and
he recognized that saving his children from the trauma of testifying was not a
reason to enter the pleas. He provided
no other reasons or testimony in support of his motion.
We
will sustain a trial court's denial of a motion to withdraw a no contest plea
unless the trial court erroneously exercised its discretion. State v. Garcia, 192 Wis.2d
845, 861, 532 N.W.2d 111, 117 (1995). A
circuit court should freely allow a defendant to withdraw his plea prior to
sentencing if it finds any fair and just reason for withdrawal, unless the
prosecution has been substantially prejudiced by reliance on the defendant's
plea. Id. However, "freely" does not mean
automatically. Id. A fair and just reason is some adequate
reason for the defendant's change of heart other than the desire to have a
trial. Id. at 861-62, 532
N.W.2d at 117. An assertion of
innocence, while important, is not dispositive. Dudrey v. State, 74 Wis.2d 480, 485, 247 N.W.2d
105, 108 (1976). The burden is on the
defendant to prove a fair and just reason by the preponderance of the
evidence. Garcia, 192
Wis.2d at 862, 532 N.W.2d at 117.
The
trial court concluded that Konshak failed to set forth a fair and
just reason for withdrawal, and that withdrawal would substantially
prejudice the prosecution. It found
that there was no credible evidence to support a claim that Konshak
misunderstood any part of the plea proceeding.
It further found that the reasons given by Konshak were in reality
merely an expression of a desire for trial.
Because
the trial court's finding that Konshak understood what he was doing when he
entered his no contest pleas is not clearly erroneous, its conclusion that no
fair and just reason existed to withdraw the pleas must be upheld. See id. at 863, 532
N.W.2d at 118. In finding that
Konshak's claim of confusion was incredible, the trial court noted that Konshak
had fourteen-and-a-half years of schooling, including recent college
enrollment. While acknowledging that
Konshak was taking Prozac for depression at the time of the pleas, it also
noted that he had testified in previous proceedings that the drug did not
affect his ability to understand the proceedings or his attorney's questions. It also considered his statements at the
plea hearing confirming his understanding of the constitutional rights he was
waiving and the trial court's role in the plea proceeding. In addition, the trial court found that
Konshak had a great deal of time to discuss the no contest pleas with his
attorney, including extra time on the day the pleas were entered.
The
trial court's determination that Konshak understood the plea proceedings is
supported by the record, including the no contest plea colloquy and the plea
questionnaire and waiver of rights form executed by Konshak. Absent a showing that Konshak misunderstood
the nature or consequences of his pleas, the trial court properly found that
his claim of confusion was incredible, and that he failed to meet his burden of
proving that a fair and just reason existed for withdrawal of his pleas. See State v. Canedy,
161 Wis.2d 565, 585-86, 469 N.W.2d 163, 171-72 (1991).[2] As noted by the trial court, Konshak's
allegations regarding emotional confusion merely demonstrated that he had
changed his mind about wanting a trial, which was not a sufficient reason for
permitting withdrawal of the pleas, even before sentencing. See id. at 583, 469 N.W.2d at
170-71.[3]
Konshak's
claim that the trial court erroneously exercised its discretion by denying his post-sentencing
motion to withdraw his no contest pleas is also without arguable merit. After appointment of appellate counsel,
Konshak moved to withdraw his pleas, alleging that they were unknowingly
entered because the trial court failed to explain the elements of the offenses
to him, and the elements were not set forth in the plea questionnaire. He also alleged that his trial attorney
failed to inform him of the elements of the offenses, and rendered ineffective
assistance of counsel by failing to ascertain that he understood them.
A
defendant who files a motion to withdraw his no contest pleas after sentencing
is entitled to withdraw them as a matter of right if he demonstrates that he
did not understand the elements of the crimes to which he pled. Garcia, 192 Wis.2d at 864, 532
N.W.2d at 118. In addition, pursuant to
§ 971.08(1), Stats., when
accepting a no contest plea, trial courts are statutorily required to address
the defendant personally and determine that the plea is made voluntarily with
an understanding of the nature of the charge and the potential punishment if
convicted. Garcia, 192
Wis.2d at 865, 532 N.W.2d at 118.
However, a violation of § 971.08(1) is not itself constitutionally
significant. Garcia, 192
Wis.2d at 865, 532 N.W.2d at 119.
If
a defendant establishes that the trial court did not determine on the record at
the plea hearing that he understood the nature of the crimes charged, the
burden shifts to the State to show by clear and convincing evidence that the
defendant's plea was knowingly, voluntarily and intelligently entered. Id. The State may utilize the entire record to show that the
defendant entered a valid plea, may examine the defendant or his counsel to
shed light on his knowledge and understanding, and may look to the plea
questionnaire form signed by the defendant.
Id. at 866, 532 N.W.2d at 119.
At
the hearing at which Konshak entered his no contest pleas, the trial court did
not explain the elements of the offenses to Konshak. The plea questionnaire executed by Konshak also failed to set
forth the elements of the offenses.
However, at the evidentiary hearing held on Konshak's postconviction
motion, his trial counsel testified that she reviewed the charges with him on
the day he entered the no contest pleas to insure that he understood which
counts would be the subjects of the pleas.
She testified that she went through the elements of the offenses and the
potential penalties very carefully on the day of the pleas, and read each
paragraph of the plea questionnaire to Konshak, asking him if he understood or
had any questions before proceeding.
She also testified that she had many meetings and telephone conferences
with Konshak during the year between the filing of the initial charges and
entry of the no contest pleas, and that she reviewed all of the charges with
him as they were filed, including reviewing the statute books with him. She further testified that she reviewed the
elements of the offenses with Konshak on numerous other occasions, discussing
defenses and what the State would have to prove.
Trial
counsel's testimony was consistent with the answers given by Konshak when
entering his no contest pleas, indicating that he had gone over all of the
charges with his attorney, and understood what the State would have to prove
before he could be found guilty of those counts. It was also consistent with the representations made by Konshak
on the plea questionnaire and waiver of rights form signed by him.
After
hearing the testimony at the postconviction hearing, the trial court found that
Konshak's trial attorney was credible when she testified that she explained the
elements of the offenses to Konshak.
The trial court also considered Konshak's discussions with a psychiatrist
who evaluated him for purposes of determining whether he was competent and
whether any basis existed for a defense based on mental illness. It found that those discussions, as well as
arguments made in court during the course of the trial court proceedings,
indicated that Konshak knew what he was being charged with and what the
elements of those offenses were. The
trial court also reiterated the findings it made at the hearing on Konshak's
original motion to withdraw his pleas, determining that the pleas were
knowingly, voluntarily and understandingly made, and that Konshak had excellent
representation by trial counsel.
Based
on the finding that trial counsel explained the elements of the offenses to
Konshak, as well as the representations made by Konshak in the no contest plea
colloquy and questionnaire, no basis exists to conclude that Konshak entered
his pleas without knowledge of the nature of the charges to which he was
pleading. Since the record also
indicates that Konshak was aware of the potential penalties for the charges and
the constitutional rights he was waiving, and that a factual basis existed for
the pleas, no arguable basis exists for concluding that he was entitled to
withdraw his pleas.
Attorney
Norby's original no merit report also addresses whether the trial court acted
within the scope of its discretion in sentencing Konshak to consecutive
ten-year prison terms for the sexual assault convictions, and concurrent
nine-month terms for the misdemeanor convictions. In addition, Attorney Norby discusses whether any basis exists to
modify the sentences based on new factors.
Counsel has properly analyzed these issues, and has correctly determined
that they provide no arguable basis for further appellate proceedings.
The
additional issues raised in Konshak's response provide no grounds for rejecting
the no merit reports and determining that further appellate proceedings are
appropriate. Konshak argues that his
trial counsel was ineffective for failing to request an in camera review
of the counseling records of the victims, who apparently began receiving
counseling after the initial charges against Konshak were made. To establish ineffective assistance of trial
counsel, a defendant must show that counsel's performance was deficient and
that it prejudiced the defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984). The test for measuring an attorney's performance is the
reasonableness of counsel's challenged conduct under the particular facts of
the case, viewed as of the time of counsel's conduct. State v. Hubert, 181 Wis.2d 333, 339, 510 N.W.2d
799, 801 (Ct. App. 1993). Courts
indulge a strong presumption that counsel's conduct falls within the wide range
of reasonable professional assistance. Id.
at 340, 510 N.W.2d at 802.
Konshak
presents no arguable basis for concluding that his trial attorney acted
unreasonably by failing to request an in camera review of the counseling
records. To be entitled to an in
camera review of treatment or counseling records, a defendant must make a
preliminary showing that the files contain evidence material to his
defense. State v. S.H.,
159 Wis.2d 730, 738, 465 N.W.2d 238, 241 (Ct. App. 1990). The preliminary showing must establish that
the records are relevant and may be necessary to a fair determination of the
defendant's guilt or innocence. See
State v. Shiffra, 175 Wis.2d 600, 610, 499 N.W.2d 719, 723 (Ct.
App. 1993). The defendant must
establish some basis for his claim that the record being sought will contain
material evidence. Pennsylvania
v. Ritchie, 480 U.S. 39, 58 n.15 (1987).
Konshak
contends that an in camera review of the victims' counseling records was
necessary to search for potentially exculpatory materials, including signs of
manipulation by therapists. However, he
does not specify what counseling records exist, when they were created, or
which of the numerous child witnesses they involve. In addition, nothing cited by him provides any basis for
believing that any exculpatory evidence or evidence of manipulation would be
found in any records.[4] The mere fact that child witnesses are
involved does not constitute a preliminary showing that their counseling
records would contain evidence of witness manipulation, and that the records
are therefore material to the defense.
Moreover, even if the preliminary hearing transcript is deemed to show
some inconsistent statements or confusion on the part of some of the children,
their testimony, standing alone, provides no indication that any material
evidence would be found in their counseling records.
Even
in regard to K.K., the transcript pages relied on by Konshak provide no basis
for concluding that his trial attorney unreasonably failed to seek an in
camera review of her counseling records.
The transcript contains no discussion of any counseling records. Trial counsel's concern that K.K. might be
looking at people in the courtroom and her request that no one give cues to
K.K. did not even reveal who K.K. was allegedly looking at, much less give rise
to an inference that her counseling records might reveal that she was
manipulated into making false charges against Konshak. Similarly, K.K.'s assent to trial counsel's
representations concerning her desire to tell the district attorney or social
workers what they wanted to hear does not provide a basis for concluding that
her counseling records would themselves contain evidence of manipulation or
other material evidence. Consequently,
no arguable basis has been shown for concluding that Konshak's trial counsel
acted unreasonably by failing to request them.
Konshak
also argues that the no merit reports should be rejected because they fail to
adequately set forth the facts of record and law which support an appeal, and
because Attorney Norby failed to provide him with a complete copy of the
record. Neither of these claims has
merit. Counsel's no merit reports set forth
the legal issues potentially raised by this appeal, the facts and law applicable
to them, and his conclusion that the appeal lacks arguable merit. He thus complied with the Anders
requirement of filing a brief referring to anything in the record that might
arguably support the appeal, as well as Rule
809.32(1), Stats., which requires
that an attorney cite the principal cases, statutes, and facts of record which
support his conclusion that the appeal is meritless. See McCoy v. Court of Appeals, 486 U.S. 429,
439-40 (1988). Counsel's explanation of
the basis for his conclusion that the appeal lacks merit did not deprive
Konshak of any constitutional right. See
id. at 443.
We
also discern no basis for rejecting the no merit reports based on counsel's
failure to provide Konshak with copies of everything in the record. Anders requires that the
defendant be served with a copy of counsel's no merit brief and given an
opportunity to respond, but imposes no requirement for service of a complete
copy of the record. Anders,
386 U.S. at 744. Moreover, as revealed
by the transcript references in Konshak's response, he was served with copies
of all of the transcripts which were material to this appeal, including the
transcripts of the suppression hearing, the no contest plea hearing, the
hearings on his motions to withdraw his pleas, and the preliminary hearing
transcript related to the charges underlying Court of Appeals case No.
94-2811-CR-NM.
While
Konshak objects that he did not receive certain other transcripts, a review of
the record reveals that they pertained to the initial appearances and
arraignments, as well as to a motion to sever and the preliminary hearing on
the charges underlying Court of Appeals case No. 94-2810-CR-NM. Those transcripts appear immaterial to the
appeal, some because they dealt with uncontested procedural matters and the
others because any issues raised in them were waived by entry of Konshak's no
contest pleas. See Bangert,
131 Wis.2d at 293, 389 N.W.2d at 34; see also State v. Webb, 160
Wis.2d 622, 636, 467 N.W.2d 108, 114 (1991) (holding that a defendant who
claims error occurred at the preliminary hearing may obtain relief only prior
to conviction). Since the transcripts
Konshak received apprised him of the issues material to this appeal, no basis
exists to conclude that he was deprived of any right by counsel's failure to
provide him with additional material.
Our
independent review of the record reveals no other potential issues. Therefore, we affirm the judgments and order
and relieve Attorney Joseph M. Norby of further representing Konshak on this
appeal.
By
the Court.—Judgments and order
affirmed.
[2] While Konshak
stated in his motion that he believed his children were unduly influenced by
social service agents into making false charges against him, he did not present
any evidence or argument in support of this allegation, nor even discuss it at
the hearing on his presentencing motion to withdraw his pleas. He also never claimed that he obtained
information after entry of his no contest pleas which changed his beliefs as to
whether undue influence had been exerted.
Absent evidence that the children were influenced to make false allegations
and that Konshak was unaware of such information when he entered his no contest
pleas, these unsupported allegations provided no basis for withdrawal of the
pleas.
[3] Because there is
no arguable merit to challenging the trial court's determination that Konshak
failed to show a fair and just reason for withdrawing his no contest pleas
prior to sentencing, we need not reach the issue of whether the State would
have been substantially prejudiced by withdrawal. See State v. Garcia, 192 Wis.2d 845, 861
n.7, 532 N.W.2d 111, 117 n.7 (1995).
[4] Konshak cites to
four pages of the May 25, 1993 preliminary hearing transcript to support his
argument. In one of the pages referred
to by Konshak, his trial attorney interrupted her initial questioning of K.K.,
a seven-year-old witness, and stated that she would:
like to place on this record that the witness is looking
and maybe getting cues from people behind me.
She's obviously responding to something by her facial expressions. If there's anybody who is seated in this
area who is giving her cues, I would like them to be admonished not to be
smiling, not to use facial or hand gestures.
In the other pages cited by Konshak,
his trial attorney asked K.K. whether she wanted to make the district attorney
and a certain social worker happy, to which K.K. answered "yes." K.K. then also answered affirmatively when
trial counsel said, in reference to the social worker:
And she's happy when you answer questions and say the things she wants
to hear, right?