COURT OF APPEALS DECISION DATED AND RELEASED JANUARY 23, 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. 95-2115-CR-NM
95-2116-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MARVIN D. DOYLE,
Defendant-Appellant.
APPEAL from judgments of
the circuit court for Milwaukee County:
JOHN A. FRANKE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER
CURIAM. Counsel for Marvin D. Doyle has filed a no merit
report pursuant to Rule 809.32, Stats. Doyle filed a response challenging his counsel's analysis of the
issues and raising additional issues.
Upon our independent review of the record as mandated by Anders v.
California, 386 U.S. 738 (1967), we conclude that there is no arguable
merit to any issue that could be raised on appeal.
A jury convicted Doyle
of second-degree reckless endangerment while armed and retail theft, while
acquitting him of retail theft while armed.
The State presented evidence that Doyle and another man were observed hiding
nonprescription drugs in their clothing in a drug store. The store manager and an employee confronted
the two men who initially agreed to accompany them to a back room to wait for
the police. A struggle broke out on the
way to the back room and Doyle's companion successfully fled the premises after
striking the employee in the face.
While he was struggling with Doyle, the manager observed Doyle's right
arm swing up in an arc. He then felt a
sharp jab to his neck. The manager
grabbed Doyle's wrist and saw that he was holding a knife. The manager was eventually aided by his
employee in detaining Doyle until the police arrived.
The no merit report
addresses whether the verdicts were inconsistent, whether Doyle's speedy trial
rights were violated and whether the delay in bringing the theft while armed
charge resulted in a violation of due process.
Our independent review of the record confirms counsel's analysis of
these issues.
The jury's verdict was
consistent with the testimony adduced at trial and the jury instructions
given. The court instructed the jury
that in order to convict on the charge of retail theft while armed, it had to
find that Doyle committed retail theft "while using a dangerous weapon." The finding that Doyle did not use the weapon
while committing the retail theft is not inconsistent with the finding that he
used the weapon to endanger the store manager's safety during the
struggle. The verdict is consistent
with the theory that Doyle "possessed" the knife while committing retail
theft and "used" the knife while committing reckless endangerment.
Doyle was initially
charged in April 1993 with armed robbery and second-degree reckless
endangerment while armed. In August
1993, the court dismissed the armed robbery charge for lack of probable
cause. After considering whether to
appeal the dismissal, the State filed a new complaint in March 1994 alleging
retail theft while armed. Trial on both
the reckless endangerment and theft while armed charges began in September
1994.
The delay in charging
Doyle with retail theft while armed did not result in a due process
violation. For such a delay to
constitute a violation of due process, the delay must be an intentional device
by the State to gain tactical advantage over the accused or to harass him or
must have resulted in actual prejudice to the defendant. See State v. Strassburg,
120 Wis.2d 30, 36, 352 N.W.2d 215, 218 (Ct. App. 1984). The record contains no evidence of actual
prejudice or intentional delay to harass or gain tactical advantage. No witness's memory was impaired, evidence
was not lost and Doyle was not hindered in his ability to defend himself.
Doyle's constitutional
and statutory speedy trial rights were not violated. Whether the accused has been deprived of his constitutional right
to a speedy trial is an ad hoc determination to be made upon
consideration of relevant factors including the length of the delay, the reason
for the delay, the defendant's assertion of his right and prejudice to the
defendant. Barker v. Wingo,
407 U.S. 514, 530 (1972). The sixteen
month delay in bringing Doyle to trial resulted in no prejudice to the
defense. Doyle stipulated to
adjournment for part of this time and created some of the delay himself by
filing motions to dismiss his counsel.
We perceive no violation of Doyle's constitutional speedy trial right.
Any argument relating to
Doyle's statutory speedy trial right fails for two reasons. First, the clerk's docket entries support
the trial court's finding that Doyle's counsel stipulated to the only delay
that arguably implicates Doyle's statutory speedy trial rights. Second, dismissal of the charges is not a
remedy for violation of statutory speedy trial rights. See Rabe v. Ferris, 97
Wis.2d 63, 67, 293 N.W.2d 151, 153 (1980).
The remedy for a violation of the statutory speedy trial right, release
of the defendant pending trial, see § 971.10(4), Stats., is now moot. This remedy was not available to Doyle
before trial because he was simultaneously held on a probation revocation in
another county. We conclude that there
is no arguable merit to Doyle's arguments regarding statutory or constitutional
speedy trial rights.
In his response Doyle
contends that, after the armed robbery charge was dismissed following the
preliminary hearing, the State should not have been allowed to charge retail
theft while armed. See State
v. Williams, 190 Wis.2d 1, 9, 527 N.W.2d 338, 340 (Ct. App. 1994); State
v. Williams, 186 Wis.2d 506, 509-12, 520 N.W.2d 920, 922-23 (Ct. App.
1994). The Williams cases
hold that when a charge is dismissed from a multiple count complaint at a
preliminary hearing, the prosecution may not rely on facts presented at the
preliminary hearing with regard to the dismissed charge to form the basis of a
new charge in an information. When a
charge is dismissed, the prosecution must file a new complaint and begin the
process anew. Id. Here, the prosecution did exactly that. Doyle was not entitled to a new preliminary
hearing because the new complaint charged only a misdemeanor offense. Penalty enhancers that subject a defendant
to additional years of incarceration do not convert a misdemeanor into a
felony. See State v.
Denter, 121 Wis.2d 118, 123, 357 N.W.2d 555, 557-58 (1984). The record establishes no defect in the manner
in which Doyle was charged.
Doyle also argues that
his trial counsel was ineffective for failing to investigate whether the victim
received serious injury or underwent hospital treatment. Second-degree reckless endangerment requires
only that the defendant endangered the safety of another human being by
reckless conduct. See Wis J I—Criminal 1347 (1993). Criminally reckless conduct only requires
that the defendant's conduct created an unreasonable and substantial
"risk" of death or great bodily harm. Actual bodily harm is not required for proof of this charge. The risk of death or great bodily harm that
arises from being stabbed in the neck exists regardless of whether the store
manager actually suffered serious injury.
Therefore, Doyle has not established ineffective assistance of his trial
counsel because he has not established any prejudice from his attorney's
failure to investigate the seriousness of the victim's wounds. See Strickland v. Washington,
466 U.S. 668, 687 (1984).
Doyle's response also
argues res judicata, double jeopardy and due process violations in terms
that present no cognizable issue. We
conclude that there is no arguable merit to any issue raised in the no merit
report or the response. Our independent
review of the record discloses no other potential issues for appeal. We therefore affirm the judgments of
conviction and relieve Attorney Sara Van Winkle of further representing Doyle
in this matter.
By the Court.—Judgments
affirmed.