COURT OF APPEALS DECISION DATED AND RELEASED November 8, 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. |
No. 95-2126-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOSEPH C. REINSBACH,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Waukesha County:
ROGER MURPHY, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
PER CURIAM. The state public
defender appointed Michael J. Hicks and John D. Surma to represent Joseph C.
Reinsbach on a postconviction motion following his conviction of two counts of
delivery of a controlled substance in violation of §§ 161.41(1)(b) and
161.16(2)(b)1, Stats. They filed a motion to modify sentence
alleging a new factor. The trial court
denied the motion. On appeal, Hicks and
Surma have filed a no merit report pursuant to Rule 809.32, Stats.,
and Anders v. California, 386 U.S. 738 (1967). Reinsbach received a copy of the no merit
report. He filed a response.
In 1989, Reinsbach
appeared in court on five cases and entered Alford no contest
pleas to seven counts of delivery of controlled substances and possession of
controlled substances with intent to deliver.
Some of the counts included mandatory minimum fines. Several additional counts were dismissed,
including the two counts relevant to this appeal.
At the sentencing
hearing, plea counsel advised the court that she had not considered the
financial penalties when agreeing to the plea negotiations. Counsel asked that Reinsbach be allowed to
withdraw his plea to two counts that carried mandatory fines. In exchange, the two counts of delivery of a
controlled substance underlying this appeal would be reinstated, and Reinsbach
would enter an Alford plea to those counts. The prosecution agreed with the
proposal. When the trial court took the
plea to the reinstated counts, Reinsbach indicated that he understood and
agreed to the proceedings. On the
record, the court reinstated the two counts, found Reinsbach guilty of them and
granted Reinsbach's request to withdraw his plea to two other counts, which
were dismissed.
In 1991, Reinsbach filed
a pro se motion challenging the reinstatement of the two counts. The motion was denied in June 1991, and no
appeal was taken.
Reinsbach filed pro
se motions to modify sentence and for appointment of counsel in 1994. The public defender appointed Hicks and
Surma to represent Reinsbach, and they filed a motion to modify sentence on his
behalf. The latter motion alleged that
a new factor existed because the record lacked a written order reopening the
reinstated charges. The trial court
denied this motion because the alleged error had been raised in the 1991
motion, because there was no constitutional requirement of a formal order
reinstating the charges and because the lack of formal documents was not a new
factor.
The no merit report
addresses whether the reinstatement of and conviction on previously dismissed
counts constituted a subsequent, unlawful prosecution; whether the failure to
issue written orders reopening the case invalidated the convictions on those
charges; whether Reinsbach may challenge the stipulation waiving the State's
burden of proof and strict compliance with procedures when he has accepted the
benefits of the stipulation; and whether any other basis exists for sentence
modification. Hicks and Surma conclude
that these possible issues have no arguable merit. Based upon our independent review of the record, we conclude that
their analysis of these issues is correct.
Reinsbach's response
challenges the trial court's authority to reinstate the dismissed charges and
find him guilty of them. Reinsbach is
barred from presenting this claim.
The trial court's 1991
order decided this issue adversely to him.
When Reinsbach did not appeal from the order, it became a final
adjudication of the issue. If Reinsbach
was dissatisfied with the decision, he should have appealed from the
order. See State v. Braun,
178 Wis.2d 249, 251, 504 N.W.2d 118, 119 (Ct. App. 1993), aff'd, 185
Wis.2d 152, 516 N.W.2d 740 (1994) (proper method of challenging the trial
court's decision on motion is to appeal).
Reinsbach may not raise the same issue again.
Additionally, judicial
estoppel applies to prevent Reinsbach from advocating one position during the
sentencing hearing, i.e., amendment of the dismissal order and plea to the
reinstated counts, and then arguing on appeal that the trial court's acceptance
of the position was error. See Coconate
v. Schwanz, 165 Wis.2d 226, 231, 477 N.W.2d 74, 75 (Ct. App. 1991). It is contrary to fundamental principles of
justice and orderly procedure to allow a party to affirmatively contribute to
court error and then obtain reversal because of the error. State v. Gove, 148 Wis.2d 936,
944, 437 N.W.2d 218, 221 (1989).
Our independent review
of the record did not disclose any additional potential issues for appeal. Therefore, any further proceedings on
Reinsbach's behalf would be frivolous and without arguable merit within the
meaning of Anders and Rule 809.32(1),
Stats. Accordingly, the order is affirmed, and Hicks and Surma are
relieved of any further representation of Reinsbach on this appeal.
By the Court.—Order
affirmed.