COURT OF APPEALS DECISION DATED AND RELEASED October 2, 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. |
No. 95-2395-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GORDEN V. PEMRICH,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Green Lake County:
LEWIS MURACH, Judge. Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
PER
CURIAM. Gorden V. Pemrich appeals from his convictions for one
count of attempted sexual assault of a child and six counts of sexual assault
of a child by hand-to-vagina or hand-to-buttock sexual contact. Pemrich pled guilty to the charges and
received one three-year and six seven-year consecutive sentences, for a total
of forty-five years in the Wisconsin State Prisons. Pemrich's counsel has filed a no merit report pursuant to Anders
v. California, 386 U.S. 738 (1967).
Pemrich received a copy of the report and has filed a response.
Counsel's no merit
report raises three possible arguments:
(1) the plea procedures were inadequate; (2) the pleas lacked a factual
basis; and (3) the sentence was excessive.
Pemrich's response raises at least nine issues, including the State's
right to charge multiple offenses, the adequacy of the arraignment, defects in
the presentence investigation report, and the adequacy of trial and appellate
counsel. Upon review of the record, we
are satisfied that the no merit report properly analyzes the issues it raises,
and we therefore will not address them further. We also reject the issues Pemrich raises in his response.
First, Pemrich's guilty
plea waived all defects before the plea except jurisdictional defects, see
State v. Bangert, 131 Wis.2d 246, 293, 389 N.W.2d 12, 34 (1986),
including any problems with the multiple charges, the arraignment and the
adequacy of trial counsel on those matters.
See Smith v. Estelle, 711 F.2d 677, 682 (5th Cir.
1983). Pemrich has alleged nothing that
transpired before the plea amounting to a jurisdictional defect. As a result, Pemrich's guilty plea operated
to cure every trial court defect he has raised in his response. Pemrich's guilty plea constituted an
exchange of uncertainty for a degree of certainty in terms of the outcome of
the proceedings. As part of that
exchange, he forfeited his right to make further challenges to pre-plea proceedings.
Moreover, Pemrich's plea
reversed the presumption of innocence, State v. Koerner, 32
Wis.2d 60, 67, 145 N.W.2d 157, 160‑61 (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. See 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, Pemrich 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, Pemrich 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 intelligently and voluntarily entered. 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, Pemrich 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.
Nonetheless, we briefly
address one argument on the merits of his conviction. Pemrich cites § 948.025(1), Stats., as invalidating his conviction. This statute makes someone guilty of a Class
B felony if he or she commits three or more violations of § 948.02(1) or
(2), Stats., within a specified
period of time involving the same child.
According to Pemrich, this statute required the State to charge him with
one offense rather than separate offenses if they occurred within a
"specified period of time."
Pemrich misreads § 948.025(1).
The statute augments, not restricts, the State's power against sexual
offenders. It permits a more general
charge whenever the State can prove separate sexual assaults but not their
exact places, times or nature. In that
instance, the State may charge three or more assaults within a specified time
frame as one collective felony, and all jurors need not agree on which acts
constitute the offenses as long as they all agree on the number of
offenses. Conversely, if the State can
prove the exact times, places and nature of the incidents, it may charge them
separately. Here, the State did
identify the time, place and nature of each assault and thereby had no need to
apply § 948.025.
We next reject Pemrich's
claim that the presentence investigation report (PSI) contained erroneous
information that had a negative impact on the length of his sentence. Pemrich alleges several problems with the
PSI's preparation and substance, such as the following: (1) the author never interviewed one of the
victims; (2) the author did not comply with the State's PSI regulations; (3) the
report quotes Pemrich out of context; (4) the PSI misattributed the emotional
and other harm the victims suffered to Pemrich's sexual assaults when such
damage actually arose from other causes; and (5) the PSI understated Pemrich's
compliance with treatment programs he had undergone as a result of his 1985
sexual assault conviction. For example,
the PSI reported that sexual assaults prompted the victims to move to other
communities; Pemrich states that other factors brought about the move. The PSI reported that Pemrich declined to
participate in treatment programs related to his 1985 sex conviction; Pemrich
states that matters beyond his control limited his participation.
Pemrich and his trial
counsel identified several PSI problems at the sentencing hearing. At that time, the trial court noted
Pemrich's objections, with the implication that it would take the alleged
discrepancies into account to the extent that they might ultimately have an
influence on Pemrich's sentence. In the
final analysis, everything Pemrich has mentioned, both in terms of omissions
and falsehoods, had no significant role in his sentence. The trial court based Pemrich's sentence
primarily on the public's need for protection, the seriousness of his offenses,
the frequency of their occurrence, the self-evident harm to the victims, the
shortcomings in Pemrich's character, and the victims' inability to defend
themselves. These were all relevant
factors. State v. Wickstrom,
118 Wis.2d 339, 355, 348 N.W.2d 183, 192 (Ct. App. 1984).
From the facts of the
offenses to which Pemrich had pled guilty, the trial court saw the risk he was
posing to young girls and the public's need to end this risk. The trial court considered Pemrich a young
girl predator, in part from the statements he had made about the incidents, but
also from Pemrich's acts themselves and his prior history. Even if Pemrich's claims of some PSI
inaccuracies were true, they would have not altered the fundamental concerns
underlying his sentence or compelled the trial court to issue a lesser
one. Pemrich's acts, as much as his
words, revealed his predatory nature, made his incarceration necessary, and
justified the trial court's lengthy sentence.
His acts, together with his past record, spoke for themselves and supplied
the trial court with a sufficient basis for a forty-five year sentence. Under the circumstances, the trial court was
fully justified in according the public's need for protection a prominent role
in Pemrich's sentencing.
Finally, Pemrich claims
that the trial court was biased at sentencing.
He cites the fact that the trial court signed the sentencing matrix form
one week before Pemrich's sentencing.
The trial court apparently signed the form before it postponed the
original sentencing hearing by one week.
This does not show prejudice. The
trial court proceedings enjoy a presumption of regularity. See State ex rel. La Follette
v. Circuit Court of Brown County, 37 Wis.2d 329, 344, 155 N.W.2d 141,
149 (1967). We may presume that the
trial court predated the form as a clerical matter in anticipation of the
hearing before the court became aware of the need to reschedule it. We have no reason to infer from the trial
court's form-dating process that it was guilty of bias. Accordingly, we adopt the no merit report,
affirm the conviction and discharge Pemrich's appellate counsel of his
obligation to represent Pemrich further in this appeal.
By the Court.—Judgment
affirmed.