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COURT OF APPEALS DECISION DATED AND RELEASED July 13, 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. 95-0477-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DANIEL R. DAVIS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Dane County:
DANIEL R. MOESER, Judge. Affirmed.
Before Gartzke, P.J.,
Sundby and Vergeront, JJ.
PER
CURIAM. Daniel R. Davis appeals from the judgment
of conviction entered on April 11, 1994, after Davis' probation was
revoked. The underlying crimes were two
counts of burglary and one count of misdemeanor theft. The court sentenced Davis to five years on
each burglary count and to six months on the misdemeanor theft. The terms were to run concurrent to each
other, and consecutive to another sentence.
Davis' appellate
counsel, Attorney Robert T. Ruth, filed a no merit report under Rule 809.32, Stats., and Anders v. California, 386 U.S. 738
(1967). Davis has filed a
response. As required by Anders,
this court has independently reviewed the record. Because that review reveals no arguable appellate issues, we
affirm the judgment of conviction.
In the no merit report,
counsel addresses whether Davis' no contest plea was knowingly, voluntarily,
and intelligently entered. We do not
reach this issue. Davis entered his
plea on October 1, 1985. The court
withheld sentence and placed Davis on probation for three years on each
count. The probation terms were to run
concurrent to each other, and consecutive to a prison sentence Davis was then
serving.
Davis did not appeal the
October 1, 1985 judgment of conviction.
Any challenge to the validity of Davis' no contest plea should have been
raised in a direct appeal from that judgment.
See State v. Drake, 184 Wis.2d 396, 399, 515 N.W.2d
923, 924 (Ct. App. 1994). The time for
challenging the validity of the plea has long since passed. Davis cannot seek withdrawal of his no contest
plea by appealing the judgment of conviction entered after revocation. Id. Therefore, an appeal on that basis would lack arguable merit.
Counsel also discusses
whether the court erroneously exercised its sentencing discretion. In imposing sentence, the court noted that
Davis had been revoked from probation or parole four times since the underlying
crimes were committed in 1985.[1] The court indicated that Davis "ha[d]
received chances" but that Davis "kep[t] committing crimes and ...
breaking the rules." The court
noted that the incident which led to the revocation involved violence and
weapons. The court was "not
willing to take any more risks or any more gambles with someone that has your
history."
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 trial court is presumed to have acted reasonably and the defendant
has the burden to show unreasonableness from the record. See id.
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 the protection of the
public. State v. Harris,
119 Wis.2d 612, 623, 350 N.W.2d 633, 639 (1984). The weight to be given the various factors is within the trial
court's discretion. Cunningham v.
State, 76 Wis.2d 277, 282, 251 N.W.2d 65, 67-68 (1977).
The sentencing
transcript shows that Davis' character and the need to protect the public from
further criminal conduct were foremost in the court's mind. Those are proper and relevant factors. The court properly exercised its discretion
in sentencing Davis.
Davis raises three
points in his response. First, and most
extensively, Davis asks this court to review the revocation proceedings. We cannot do so. Revocation proceedings stand independent from the underlying
criminal case. State ex rel.
Flowers v. DHSS, 81 Wis.2d 376, 384, 260 N.W.2d 727, 732 (1978). Judicial review of a revocation order can be
obtained by certiorari to the court of conviction. State ex rel. Johnson v. Cady, 50 Wis.2d 540, 550,
185 N.W.2d 306, 311 (1971). The
revocation decision is not reviewable in the context of this appeal, and we do
not address the merits of that question.
Second, Davis believes
that he should be given sentence credit "coming from the time of being
charged [1985] to ultimately being sentenced [1994]." During that period, Davis was incarcerated
on unrelated crimes. Therefore, Davis
is not entitled to sentence credit. See
State v. Amos, 153 Wis.2d 257, 280-81, 450 N.W.2d 503, 512 (Ct.
App. 1989).
Lastly, Davis asserts
that he should have been "tried under the old law, instead of the new case
law." Davis does not expand on
this argument, and we decline to speculate on what "law" he is
referring to.
Based on an independent
review of the record, this court finds no basis for reversing the judgment of
conviction. Any further appellate
proceedings would be without arguable merit within the meaning of Anders
and Rule 809.32, Stats.
Accordingly, the judgment of conviction is affirmed, and Attorney Robert
T. Ruth is relieved of any further representation of Davis on this appeal.
By the Court.—Judgment
affirmed.