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COURT OF APPEALS DECISION DATED AND RELEASED July 20, 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. 95-0781-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DAVID L. S.,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for La Crosse County:
MICHAEL J. MULROY, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Vergeront, J.
PER CURIAM. Pursuant to a negotiated plea, David L. S.[1]
pled guilty to one count each of sexual assault of a child in violation of
§ 948.02(1), Stats., and
sexual assault of a child in violation of § 948.02(2). Two incest counts and two counts of
intimidation of victims were dismissed and read-in for sentencing. David L. S. was sentenced to ten years in
prison for the violation of § 948.02(2).
Sentence for the § 948.02(1) violation was withheld, and David L.
S. was placed on probation for twenty years, to be served consecutive to the
prison sentence.
Timothy J. Gaskell, whom
the state public defender appointed to represent David L. S. on appeal, filed a
no merit report pursuant to Rule 809.32,
Stats., and Anders v.
California, 386 U.S. 738 (1967).
David L. S. received a copy of the no merit report and was advised of
his right to file a response. He has
not responded. From our independent
review of the record, we conclude that Gaskell correctly analyzes the issues
raised in the no merit report as lacking arguable merit.
The no merit report
addresses whether David L. S.'s guilty pleas were knowingly, intelligently and
voluntarily entered. In order to ensure
that a plea is knowingly, intelligently and voluntarily entered, the trial
court is obligated by § 971.08(1)(a), Stats.,
to ascertain that a defendant understands the nature of the charges to which he
or she is pleading, the potential punishment or those charges and the
constitutional rights being relinquished by entering a guilty or no contest
plea. See State v. Bangert,
131 Wis.2d 246, 265-66, 389 N.W.2d 12, 21-22 (1986). The plea colloquy between David L. S. and the trial court satisfied
this standard. The court also adduced
an adequate factual basis for finding David L. S. guilty of the charges. See § 971.08(1)(b).
The no merit report also
addresses whether the trial court erroneously exercised its discretion when
imposing sentence. Sentencing is within
the trial court's discretion, State v. Larsen, 141 Wis.2d 412,
426, 415 N.W.2d 535, 541 (Ct. App. 1987), and the court is presumed to have
acted reasonably. State v.
Haskins, 139 Wis.2d 257, 268, 407 N.W.2d 309, 314 (Ct. App. 1987). The defendant bears the burden of showing,
from the record, that a sentence is unreasonable. Id.
The sentencing court
gave the greatest weight to the seriousness of the offenses, David L. S.'s
sexual assault of his two daughters.
Approximately two hundred acts of sexual assault had been committed
against the minors, who had been emotionally injured by the assaults. The court believed that David L. S. should
be held accountable for the damage he caused.
Although the court perceived that David L. S. did not recognize the
seriousness of the offenses or accept responsibility for his actions, the court
did consider such indications of character as his regular employment and lack
of a criminal record as militating against the maximum prison sentence. The sentencing court properly exercised its
discretion.
Finally, the no merit
report addresses whether the State violated the plea agreement. Gaskell indicates that David L. S. alleges
that the State's sentencing recommendation deviated from the plea agreement. If true, this would entitle David L. S. to
relief. See State v. Poole,
131 Wis.2d 359, 361, 394 N.W.2d 909, 910 (Ct. App. 1986) (defendant entitled to
relief if State fails to perform its part of plea agreement). The written statement of the negotiated plea
and the transcript of the plea hearing establish that no agreement was reached
regarding a sentence recommendation.
Therefore, the record establishes that this claim is also without merit.
Our independent review
of the record did not disclose any additional potential issues for appeal. Therefore, any further proceedings on David
L. S.'s behalf would be frivolous and without arguable merit within the meaning
of Anders and Rule 809.32(1),
Stats. Accordingly, the judgment of conviction is affirmed, and Gaskell
is relieved of any further representation of David L. S. on this appeal.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.