COURT OF APPEALS DECISION DATED AND RELEASED June 29, 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. |
Nos.95-0800-CR-NM
95-0801-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DONALD F. GREENO,
Defendant-Appellant.
APPEAL from orders of
the circuit court for La Crosse County: JOHN J. PERLICH, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Dykman, J.
PER
CURIAM. Donald F. Greeno pleaded to one count of possession of
cocaine within 1,000 feet of a school as a repeater in violation of
§§ 161.41(3m), 161.48, and 161.495, Stats.,
and to three counts of burglary with one count subject to enhancement for
habitual criminality, in violation of §§ 943.10(1)(a) and 939.62, Stats.
Seven additional burglary-related charges and two additional
drug-related charges were dismissed.
The trial court sentenced Greeno to one year in prison for the cocaine
charge and to consecutive, five-year and four-year prison terms for two
burglaries. The sentences were also
made consecutive to a sentence Greeno was then serving. The sentence for the fourth burglary was
withheld, and Greeno was placed on probation for ten years, concurrent with the
four-year prison sentence. Greeno was
also ordered to make restitution, to perform community service, and to pay a
fine. His driver's license was revoked
for six months.
The state public
defender appointed Attorney Ellen M. Frantz to represent Greeno on appeal. Attorney Frantz filed motions for
postconviction relief on Greeno's behalf.
The motions sought modification of the sentence structure to allow
Greeno earlier entry into a substance abuse treatment program at Racine
Correctional Institute. The trial court
denied the motions concluding that Greeno had presented no new factors which
would warrant resentencing. Greeno
filed notices of appeal from the orders denying the postconviction motions.
Attorney Frantz has now
filed a no merit report pursuant to Rule 809.32,
Stats., and Anders v.
California, 386 U.S. 738 (1967).
Greeno received a copy of the no merit report. He filed a response that asserts his need for, and his desire to
obtain, treatment. The letter is
substantially the same as the lengthy statement he made to the trial court at
the time of sentencing.
The no merit report addresses
whether the trial court erroneously exercised its discretion either when it
originally sentenced Greeno or when it denied his request for sentence
modification. Attorney Frantz concluded
that these possible issues lack arguable merit. Based upon our independent review of the record, we conclude that
Attorney Frantz's analysis of the issues is correct.
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 trial court considered Greeno's serious
addiction to cocaine, his lengthy criminal record, and the strong risk of
continued criminal activity which he posed to the community. The court acknowledged that Greeno needed
treatment and concluded that he would get treatment in prison. The record does not show that the sentence
was unreasonable or that the court erroneously exercised its discretion.
The trial court did not
erroneously exercise its discretion when it denied sentence modification. The unavailability of immediate treatment is
not a new factor because it is not a fact that was highly relevant to the
imposition of the sentence but unknown to the sentencing judge either because
it did not exist or because the parties unknowingly overlooked it. See State v. Franklin, 148
Wis.2d 1, 8, 434 N.W.2d 609, 611 (1989).
In the order denying the postconviction motions, the trial court
specifically stated that it was aware at sentencing that Greeno was not
immediately eligible for treatment because most treatment programs are not
available until a prisoner approaches his mandatory release date.
Our independent review
of the record did not disclose any additional potential issues for appeal. Therefore, any further proceedings on
Greeno's behalf would be frivolous and without arguable merit within the meaning
of Anders and Rule 809.32,
Stats. Accordingly, the orders are affirmed, and Attorney Frantz is
relieved of any further representation of Greeno on these appeals.
By the Court.—Orders
affirmed.