COURT OF APPEALS DECISION DATED AND RELEASED September 27, 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. 94-3315-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
PATRICK A. HAYDEN,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Fond du Lac County: STEVEN W. WEINKE, Judge. Affirmed.
BROWN, J. Patrick A. Hayden
appeals from a judgment of conviction and an order denying his postconviction
motion to withdraw his plea. Hayden's
appellate counsel, Attorney Patrick A. Hall, has filed a no merit report
pursuant to Rule 809.32, Stats., and Anders v. California,
386 U.S. 738 (1967). Hayden has not
filed a response.[1] As required by Anders, this
court has independently reviewed the record.
We conclude that an appeal would lack arguable merit. Therefore, we affirm the judgment of
conviction and the postconviction order.
On December 28, 1991,
Hayden was involved in a fight with Nicholas Schwind. Hayden was charged with misdemeanor battery and felony bail
jumping. Prior to trial, a plea
agreement was reached. Under that
agreement, the State agreed to dismiss the bail jumping charge and reduce the
battery charge to disorderly conduct, to which Hayden would plead. The parties would jointly request that
Hayden be placed on probation for one year, to run concurrent with another
probation term. The State agreed not to
oppose Hayden's request to reduce his sentence in another matter and
restitution would be determined at a later date. Hayden entered a no contest plea, and the court sentenced Hayden
consistent with the plea agreement.
In the no merit report,
counsel discusses whether a continued challenge to Hayden's no contest plea
would be frivolous. After reviewing the
plea colloquy, we agree with counsel's conclusion that Hayden entered his plea
knowingly, voluntarily and intelligently, and that the trial court properly
denied Hayden's postconviction motion to withdraw his plea.
Section 971.08(1)(a), Stats., mandates that when accepting a
plea, a trial court must address the defendant personally to determine that the
plea is made voluntarily with an understanding of the nature of the charges and
the potential punishment if convicted.
The transcript of the plea hearing establishes that the trial court
complied with the procedures set forth in § 971.08 and State v.
Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986). The terms of the negotiated plea agreement
were discussed, and the court reminded Hayden that it was not bound to accept
the parties' recommended disposition.
The court explained the elements of the crime and the potential
penalties. The court reviewed the plea
questionnaire that Hayden had completed.
Hayden indicated that he understood the various constitutional rights
that he was waiving by his plea. A
completed plea questionnaire is competent evidence that the plea was entered
voluntarily, knowingly and intelligently.
See State v. Moederndorfer, 141 Wis.2d 823, 827-28,
416 N.W.2d 627, 629-30 (Ct. App. 1987).
The record shows that Hayden knowingly, voluntarily and intelligently
pleaded no contest, and an argument that Hayden's plea was entered in violation
of his constitutional or statutory rights would be frivolous.
At the postconviction
hearing, Hayden raised two points.
First, he insisted that he had acted in self-defense. However, Hayden's motivation became
irrelevant when he entered his no contest plea, especially in light of the
reduction of the charge from battery to disorderly conduct.
Second, Hayden asserted
that the State had reneged on part of the plea agreement because his sentence
from another court was not reduced. The
record shows that the State did not oppose Hayden's request to reduce his
sentence in an unrelated matter. The
State did what it agreed to do. The
State cannot be held responsible if the court rejected Hayden's request.
Based on an independent
review of the record, this court finds no basis for reversing the judgment of
conviction or the postconviction order.
Any further appellate proceedings would be without arguable merit within
the meaning of Anders and Rule
809.32, Stats. Accordingly, the judgment and the order are
affirmed, and Hall is relieved of any further representation of Hayden in this
matter.
By the Court.—Judgment
and order affirmed.
[1] In a series of three orders, this court rejected Hayden's attempt to file a 100-page response. In the third order, issued on August 3, 1995, this court ordered that the no merit report would be addressed without a response from Hayden. Hayden moves for reconsideration of that order. The motion is denied.