COURT OF APPEALS DECISION DATED AND RELEASED
May 30, 1996 |
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. 95-1557-CR-NM
95-1558-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MICHAEL R. DELAO,
Defendant-Appellant.
APPEAL from judgments of
the circuit court for La Crosse County:
DENNIS G. MONTABON, Judge. Affirmed.
Before Gartzke, P.J.,
Dykman and Sundby, JJ.
PER
CURIAM. Pursuant to a plea agreement, Michael R. DeLao pled
guilty to several counts arising from drug trafficking. Additional charges were dismissed and
read-in for sentencing.
In the case underlying
appeal no. 95-1557-CR-NM, DeLao was convicted of one count of unlawful delivery
of a noncontrolled substance for which he received a prison sentence of ten
years. He was also convicted of one
count of unlawful delivery of marijuana and one count of possession of
marijuana with intent to deliver.
Consecutive five-year prison terms were imposed and stayed for both
counts. DeLao was ordered to serve six years on probation,
consecutive to the prison sentence, and to make restitution of the "buy
money." Additionally, DeLao was
convicted of a second count of unlawful delivery of a noncontrolled substance, one
count of unlawful delivery of cocaine, and one count of bail jumping. He was ordered to serve concurrent five-year
prison sentences for these charges. The
minimum $1000 fine was imposed for each drug charge. DeLao received 218 days of credit for presentence incarceration
against the ten-year sentence.
Additionally, in the
case underlying appeal no. 95-1558-CR-NM, DeLao was convicted of one count of
maintaining a dwelling for warehousing a controlled substance, and he received
a concurrent two-year prison sentence.
DeLao received ninety days of credit against this sentence.
The state public
defender appointed Attorney Joseph J. Skemp, Jr. to represent DeLao on
appeal. Attorney Skemp has filed a no
merit report pursuant to Rule 809.32,
Stats., and Anders v.
California, 386 U.S. 738 (1967).
DeLao received a copy of the no merit report and was advised of his
right to file a response. He has not
responded.
Responding to neighbors'
complaints of possible drug activities, police targeted DeLao's residence for
surveillance. Based upon these
complaints, the results of their surveillance activities, and a confidential,
reliable informant's report of purchasing drugs from DeLao, the police obtained
and executed a search warrant of the premises.
They found drug paraphernalia, small plastic baggies of marijuana,
marijuana cigarettes, and $660 in cash.
The warehousing-of-drugs charge in appeal no. 95-1558-CR-NM resulted
from this search.
DeLao was arrested. He was unable to make bail, and he remained
in jail for ninety days. Subsequently,
he agreed to cooperate with authorities and was released on a personal
recognizance bond. The charges in
appeal no. 95‑1557‑CR‑NM were the result of several
controlled buys made by a confidential police informant from DeLao after DeLao
was released from jail.
The no merit report
addresses whether plea counsel provided DeLao with ineffective assistance of
counsel; whether DeLao's guilty pleas were knowingly, intelligently, and
voluntarily entered; and whether the motion to modify sentence, either based on
a new factor or an erroneous exercise of discretion, would be frivolous. Attorney Skemp concludes that these possible
issues have no arguable merit. Based
upon our independent review of the record, we conclude that his analysis of
these issues is correct. There is nothing
in the record to suggest that trial counsel's performance was deficient. To establish a claim of ineffective
assistance of counsel, a defendant must show that trial counsel's performance
was deficient as well as prejudicial. State
v. Brooks, 124 Wis.2d 349, 352, 369 N.W.2d 183, 184 (Ct. App.
1985). Our review of the record does
not disclose any areas where counsel's performance may have been
deficient. DeLao's only claim, that he
felt pressured to agree to the plea negotiations, was waived when he abandoned
his pre-sentence motion to withdraw his plea.
To assure that a plea is
knowingly, voluntarily, and intelligently entered, the trial court is obligated
by § 971.08(1)(a), Stats.,
to determine that a defendant understands the nature of the charges to which he
or she is pleading, the potential punishment for those charges, and the
constitutional rights being relinquished by entering a guilty plea. See State v. Bangert, 131
Wis.2d 246, 260-62, 389 N.W.2d 12, 20-21 (1986). The plea colloquy between DeLao and the trial court satisfied
this standard. Additionally, the court
concluded that an adequate factual basis existed for finding DeLao guilty of
the charges. See
§ 971.08(1)(b).
Finally, 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. Here, the trial court considered the primary
factors, i.e., the gravity of the offense, the character of the
offender, and the need to protect the public.
See Larsen, 141 Wis.2d at 427, 415 N.W.2d at
541. The court did not erroneously
exercise its discretion. Additionally,
no new factors have been presented by DeLao.
A guilty plea waives
nonjurisdictional defects arising prior to entry of the plea. See Bangert, 131 Wis.2d at
293, 389 N.W.2d at 34. Although an
exception exists for review of orders denying motions to suppress evidence, see
§ 971.31(1), Stats., the
motion to suppress evidence obtained under the search warrant was properly
denied.
Our independent review
of the record does not disclose any additional potential issues for
appeal. Any further proceedings on
DeLao's behalf would be frivolous and without arguable merit within the meaning
of Anders and Rule 809.32(1),
Stats. Accordingly, the judgments of conviction are affirmed, and
Attorney Skemp is relieved of any further representation of DeLao on this
appeal.
By the Court.—Judgments
affirmed.