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COURT OF APPEALS DECISION DATED AND RELEASED October
5, 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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0462-CR-NM
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
STEVEN
R. LINEBERRY,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for La Crosse County: DENNIS G. MONTABON,
Judge. Affirmed.
VERGERONT, J.[1] Steven R. Lineberry appeals from a judgment
convicting him of disorderly conduct as a repeater. Lineberry's appellate counsel has filed a no merit report
pursuant to Anders v. California, 386 U.S. 738 (1967). Lineberry has been provided a copy of the
report and advised of his right to file a response. No response has been filed.
The
no merit report identified two potential issues: (1) whether the State discriminated against Lineberry and
prosecuted him in violation of his rights to equal protection and (2) whether
there was sufficient evidence to support the jury's verdict beyond a reasonable
doubt. Appellate counsel also noted
Lineberry's complaint that he screamed because he was hurt by the officers and
that his actions do not rise to the level of disorderly conduct. After an independent review of the record,
we conclude that the issues identified by counsel lack arguable merit. Lineberry's sentence was within the bounds
of the sentencing court's discretion and the record discloses no other
potential issues of arguable merit.
Accordingly, we affirm the conviction and grant appellate counsel's
request to withdraw from further representation of Lineberry in this matter.
On
July 12, 1994, a judgment of conviction was entered, sentence was withheld and
Lineberry was placed on probation for one year with the condition to serve six
months in jail with credit for six months previously served.[2] Lineberry appeals the July 12 judgment of
conviction.
The
record supports the jury's finding that beyond a reasonable doubt Lineberry was
guilty of disorderly conduct. Section
947.01, Stats., defines
disorderly conduct as conduct in a public or private place that is violent,
abusive, unreasonably loud, profane, under circumstances that tend to provoke a
disturbance.
The
trial transcript discloses that on November 23, 1993, Dean Sorenson, a jailor
at the La Crosse County jail, observed Lineberry approach Officer Timothy
Malette, point his finger in the officer's face and swear and yell at him. Officer Malette said that he would take
Lineberry to receiving and the two started down the hallway. Sorenson observed a scuffle between the two,
and "Officer Malette had Mr. Lineberry by the arm, flailing, fighting to
keep control. ... Officer Malette was kind of reeling backwards into the
wall."
Lineberry
was still yelling and screaming and Sorenson attempted to put a "full
nelson" on him, but Lineberry dropped to the floor and pulled Sorenson
down with him. They wrestled on the
floor and with the assistance of two officers Sorenson obtained control and
Lineberry was escorted to a receiving cell.
Officer Malette testified that when Lineberry
approached him, he asked Lineberry to calm down, but Lineberry continued to
holler. Malette attempted to escort
Lineberry by placing one hand near the elbow and the other at his wrist. Lineberry was "very angry, out of
control and struggling violently ... just whipped me back and forth
...."
An
appellate court may not reverse a criminal conviction unless the evidence,
viewed most favorably to the State and the conviction, is so insufficient in
probative value that it can be said as a matter of law that no trier of fact,
acting reasonably, could have found guilt beyond a reasonable doubt. State v. Poellinger, 153 Wis.2d 493, 501, 451 N.W.2d 752, 755
(1990). Matters of weight and
credibility are for the jury to determine.
State v. Alles, 106 Wis.2d 368, 376, 316 N.W.2d 378, 382
(1982). Lineberry testified that he
used profanity and a loud voice in speaking to Malette. The jury was not required to accept Lineberry's
explanation that he was only responding to Malette's provocation.
Our
review of the record discloses sufficient evidence to support the verdict
beyond a reasonable doubt. The record
discloses no basis for an appeal based upon an equal protection argument. The record reveals that the sentence was
within the bounds of trial court discretion.
The record discloses that Lineberry had five convictions in 1993 and
that he could be sentenced as a repeater to not more than three years. Sections 947.01 and 939.62, Stats.
The record reveals that the probationary period of one year with the
condition to serve six months in jail demonstrates a reasonable exercise of
sentencing discretion. See State
v. Horn, 126 Wis.2d 447, 461, 377 N.W.2d 176, 182 (Ct. App. 1985), aff'd,
139 Wis.2d 473, 407 N.W.2d 854 (1987).
The
record reveals no other potential issues of arguable merit. We conclude that any further appellate
proceedings would be without arguable merit within the meaning of Anders. We therefore discharge Attorney Margarita
Van Nuland of any further obligation to represent Lineberry in this
matter.
By
the Court.—Judgment affirmed.