COURT OF APPEALS DECISION DATED AND RELEASED September 25, 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
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No. 95-1947-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MICHAEL W. FINK,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Kenosha County:
DENNIS J. BARRY, Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER
CURIAM. Michael W. Fink appeals from his conviction for two
counts of second-degree sexual assault of a child, having pled guilty to the
charges. Fink's counsel has filed a no
merit report under Anders v. California, 386 U.S. 738
(1967). Fink received a copy of the
report and has filed a response.
Counsel's no merit report raises four possible arguments: (1) the plea procedures were inadequate; (2)
the sentence was excessive; (3) trial counsel provided Fink ineffective
representation at sentencing; and (4) the trial court improperly denied Fink's
motion to dismiss the charges because of an untimely preliminary hearing.
Upon review of the
record, we are satisfied that the no merit report properly analyzes these
issues, and we therefore will not discuss them further. In his pro se response, Fink raises several
arguments: (1) trial counsel
ineffectively failed to challenge the sufficiency of the amended complaint; (2)
the trial court made insufficient findings for a bindover; (3) the weight of
the prosecution's charges coerced his guilty plea and warrant its vacation; and
(4) the prosecution improperly attacked Fink's record and character at sentencing,
in violation of the spirit of the plea agreement. We reject these claims and conclude that the appeal has no
arguable merit. Accordingly, we adopt
the no merit report, affirm the conviction and discharge Fink's appellate
counsel of his obligation to represent Fink further in this appeal.
Guilty pleas waive all
defects leading up to the plea except jurisdictional defects, see State
v. Bangert, 131 Wis.2d 246, 293, 389 N.W.2d 12, 34 (1986), including
claimed pre-plea incidents of ineffective trial counsel, such as Fink's trial
attorney's claimed failure to present a relevant, promising defense. See Smith v. Estelle,
711 F.2d 677, 682 (5th Cir. 1983), cert. denied, Smith v. McKaskle,
466 U.S. 906 (1984). At the time of
Fink's plea, the trial court expressly informed him that his guilty plea would
waive the right to a trial by jury, the right to confront witnesses, and any
defenses his trial counsel could have mounted in a trial. These defenses included Fink's right to
attack the validity of the amended complaint, the timeliness of the preliminary
hearing, the adequacy of the bindover findings, and his trial counsel's failure
to adequately raise what Fink now views as relevant issues.
Fink stated that he
understood the waiver of these rights.
He gave no indication that he wished to challenge the validity of the
amended complaint, the timeliness of the preliminary hearing, the adequacy of
the bindover findings, or his counsel's failure to adequately raise relevant
issues. Forewarned of the consequences,
Fink chose to exchange an uncertain outcome by trial for a certain one by
guilty plea. Under such circumstances,
where Fink freely, unconditionally and unequivocally exchanged an uncertain
outcome by trial for a certain one by a guilty plea, he has no basis to now
demand a trial on the ground that his trial counsel failed to pursue a relevant
and promising defense. Fink's election
of a guilty plea cured any pre-plea defects and became the last word on these
issues.
Moreover, Fink's plea
reversed the presumption of innocence, State v. Koerner, 32
Wis.2d 60, 67, 145 N.W.2d 157, 161 (1966), and he has raised no issue that
merits a reexamination of his guilt.
Trial and appellate courts must ignore every defect in pleading,
procedure and the proceedings that does not affect the substantial rights of
the parties. State v. Weber,
174 Wis.2d 98, 109, 496 N.W.2d 762, 767 (Ct. App. 1993). The same standard applies to actions by
defense counsel. Such actions cause no
prejudice unless they affect substantial rights. See Herman v. Butterworth, 929 F.2d 623, 628
(11th Cir. 1991). Here, Fink raises
procedural defects or substantive issues that do not bear upon substantial
rights or substantially undermine his plea's fundamental factual basis. Litigants may not use ineffective counsel
claims to prolong substanceless proceedings on the basis of such issues.
Likewise, Fink has not
shown that the issues he now raises contributed to his decision to plead
guilty. Litigants may withdraw pleas on
a postjudgment basis if they were not intelligent and voluntary. State v. James, 176 Wis.2d
230, 236-37, 500 N.W.2d 345, 348 (Ct. App. 1993). This rule rests on the premise that whatever misapprehensions
plea makers may have had must concern their substantial rights. The misunderstanding must have advanced a
manifest injustice. State v.
Woods, 173 Wis.2d 129, 140, 496 N.W.2d 144, 149 (Ct. App. 1992). Otherwise, plea makers could withdraw their
pleas on the basis of immaterial misunderstandings. Here, Fink raises procedural defects that have not affected
substantial rights or substantive issues that have not undermined the plea's
fundamental factual basis. In sum, he
has not shown a manifestly unjust misunderstanding.
Last, we see no
plea-voiding coercion or improper sentencing argument. First, the weight of the prosecution's
charges and the apprehension they caused Fink do not constitute impermissible
coercion. In order to withdraw a plea,
Fink needed to show coercion beyond the normal fear most accuseds feel when
faced with the prospects of a conviction. See State v. Weidner, 47 Wis.2d 321, 328, 177
N.W.2d 69, 73 (1970). Moreover, Fink's
guilty plea amounted to an admission that the prosecution's charges were
true. Brady v. United States,
397 U.S. 742, 748 (1970). Fink has
supplied no indication that the prosecution falsified charges to induce a plea,
committed some other plea-inducing misconduct, or disserved the public interest
in the plea proceedings.
Second, the prosecution
had the right at sentencing to argue about Fink's character defects and
criminal record. The fact that the
prosecution had agreed to request a certain sentence did not bar the
prosecution from submitting arguments about character and criminal record to
back up the sentence that it did request.
Prosecutors can make any argument at sentencing that is a fair comment
on the evidence. See State
v. Amundson, 69 Wis.2d 554, 572, 230 N.W.2d 775, 785 (1975). The prosecution's comments on Fink's
character and criminal record did not violate either the prosecution's promise
to make no sentence recommendation or the spirit of the parties' plea
agreement. In sum, further
postconviction proceedings would have no arguable merit.
By the Court.—Judgment
affirmed.