COURT OF APPEALS DECISION DATED AND RELEASED August 31, 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. 95-0491-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MICHAEL J. BURGUS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Crawford County:
GEORGE S. CURRY, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Dykman, J.
PER CURIAM. Michael J. Burgus appeals from a judgment
convicting him of two counts of the delivery of a controlled substance,
tetrahydrocannabinol, as a party to the crime, contrary to §§ 161.41
(1)(h) and 939.05, Stats. The trial court withheld sentence and placed
Burgus on probation for three years with the conditions that he serve a
seven-month jail term and meet certain educational and employment goals.
Burgus's appellate
counsel, Attorney Russell L. Hanson, has filed a no merit report pursuant to Rule 809.32, Stats., and Anders v. California, 386 U.S. 738
(1967). A copy of the no merit report
was served upon Burgus, who elected not to file a response. Upon consideration of the report and after
an independent review of the record, this court concludes that there is no
arguable merit to any issue that could be raised on appeal. We therefore summarily affirm the judgment
of conviction pursuant to Rule
809.21, Stats.
The no merit report
identifies one potential issue: whether the trial court erred in refusing to
permit Burgus's appointed trial counsel to withdraw. Burgus's trial counsel, Attorney Sheila Kelley, was appointed by
the state public defender to represent Burgus in this matter on February 1,
1994. On May 26, 1994, the trial
court scheduled trial to commence on August 25, 1994, although the date for
trial was later moved up to August 11, 1994.
Nine days before trial was scheduled to commence, Attorney Kelley moved
the court to withdraw. The trial court
denied the motion.
The determination to
relieve appointed counsel and permit the substitution of another attorney lies
within the trial court's discretion. C.N.
v. Waukesha County Community Human Servs. Dep't, 143 Wis.2d 603, 615,
422 N.W.2d 450, 455 (Ct. App. 1988). A discretionary determination will be
sustained where the record reflects the trial court's "reasoned
application of the appropriate legal standard to the relevant facts in the
case." Hedtcke v. Sentry
Ins. Co., 109 Wis.2d 461, 471, 326 N.W.2d 727, 732 (1982). The determination of whether to allow the
substitution of counsel turns on the movant's showing of good cause. C.N. at 615, 422 N.W.2d at
455. As a general matter,
"`eleventh-hour' requests are frowned upon, although good cause may
warrant substitution regardless." Id.
(citation omitted). Among the concerns
that govern a trial court's discretionary determination are the orderly
procedures of the administration of justice, the amount of preparatory work
already accomplished and the avoidance of delay or dilatory tactics. Id. at 615-16, 422 N.W.2d at
455.
As grounds for the
motion, Attorney Kelley advised the trial court that Burgus no longer wished to
be represented by her and that the state public defender had concluded that
Burgus no longer qualified for representation at public expense. The trial court rejected the motion, citing
its eleventh-hour character, the absence of any affidavit or other evidence in
support of the motion to relieve defense counsel, the absence of any evidence
that defense counsel had done anything improper or had a conflict of interest,
the readiness of both the prosecution and defense counsel to try the case as
scheduled and the unconditional retainer filed by Attorney Kelley in the case
at its outset.
The record demonstrates
that the trial court carefully evaluated the relevant facts and law, including
giving weight to Burgus's desire for a private attorney of his own
choosing. The trial court then utilized
a rational process to reach a reasonable conclusion. Accordingly, this court concludes that an appellate challenge to
the trial court's denial of the motion to relieve Attorney Kelley and to permit
the substitution of counsel would lack arguable merit.
In addition to the issue
discussed by counsel in the no merit report, we have independently considered
an additional question: whether Burgus's plea was voluntarily and intelligently
made. We have reviewed the plea
colloquy between Burgus and the trial court and conclude that the requirements
of § 971.08, Stats., and State
v. Bangert, 131 Wis.2d 246, 267-72, 389 N.W.2d 12, 23-25 (1986), were
met. The court questioned Burgus at
length about his proposed no contest plea, see North Carolina v.
Alford, 400 U.S. 25, 31 (1970), and the various constitutional rights
that Burgus would waive by the plea.
Burgus indicated that he understood his rights and that his no contest
plea would waive those rights. The
court discussed the elements of the charges and the facts underlying them. The record contains a guilty plea
questionnaire which Burgus acknowledged signing. See State v. Moederndorfer, 141 Wis.2d 823,
827-28, 416 N.W.2d 627, 629-30 (Ct. App. 1987). We conclude, therefore, that an appellate challenge to the
validity of the no contest plea would lack arguable merit.
On the basis of the
record before us, we conclude that any further appellate proceedings on behalf
of Burgus would be frivolous within the meaning of Anders and Rule 809.32, Stats. Accordingly,
we affirm the judgment of conviction.
Attorney Hanson is relieved of any further representation of Burgus in
this appeal.
By the Court.—Judgment
affirmed.