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COURT OF APPEALS DECISION DATED AND RELEASED December 7, 1995 |
NOTICE |
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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. 95-2398-CR-NM
95-2399-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
WILLIAM E. HAMPTON,
Defendant-Appellant.
APPEAL from judgments
and an order of the circuit court for Grant County: JOHN R. WAGNER, Judge. Affirmed.
GARTZKE, P.J.[1] William
E. Hampton appeals from judgments of conviction for battery, bail jumping and
violating an injunction, and from a postconviction order.[2] The State Public Defender appointed Attorney
Robert P. VanDeHey as Hampton's appellate counsel. Attorney VanDeHey filed and served a no merit report pursuant to Anders
v. California, 386 U.S. 738 (1967), and Rule 809.32(1), Stats. Hampton filed a response. After an independent review of the records
as mandated by Anders, we conclude that any further appellate
proceedings would lack arguable merit.
Hampton entered Alford
pleas to misdemeanor battery, contrary to § 940.19(1), Stats., two counts of misdemeanor bail
jumping, contrary to § 946.49(1)(a), Stats.,
and violating a domestic abuse injunction, contrary to § 813.12(8)(b), Stats.[3] The trial court withheld sentence and
imposed three year concurrent terms of probation on each count. Hampton's probation was revoked and the
trial court imposed a four-month consecutive jail term on each count, totalling
sixteen months for the four misdemeanor convictions. The trial court denied Hampton's postconviction motion for
sentence modification.
The no merit report
addresses the convictions generally, including the issue which is Hampton's
sole focus: whether the trial court
erroneously exercised its sentencing discretion. Hampton suffers from major medical problems, including cancer and
related symptoms. Hampton asserts that
his condition will deteriorate if he must remain in jail for sixteen
months.
The trial court may
consider the defendant's health at sentencing.
See State v. Michels, 150 Wis.2d 94, 99-100, 441
N.W.2d 278, 280 (Ct. App. 1989). The
trial court considered Hampton's medical problems when it granted him Huber
release privileges "for psychological or medical treatment." See § 303.08(1)(e), Stats.
Hampton sought sentence
modification. He testified extensively
about his medical problems at the postconviction hearing. Hampton's deteriorating medical condition is
not a new factor which entitles him to resentencing. Michels, 150 Wis.2d at 99, 441 N.W.2d at 280. Although the trial court declined to modify
Hampton's sentence, it stayed that sentence for sixty days to allow Hampton to
seek medical treatment. Although we do
not doubt the seriousness of Hampton's medical problems, our review of the
records, judgments and order demonstrates that the trial court considered
Hampton's medical problems when it imposed the jail term and denied his
postconviction motion. The trial court
therefore did not erroneously exercise its discretion, and for that reason we
must affirm the order denying Hampton's motion.
Upon our independent
review of the records as mandated by Anders and Rule 809.32(3), Stats., we conclude that there are no other meritorious
issues and that any further appellate proceedings would lack arguable
merit. Accordingly, we affirm the
judgments of conviction and postconviction order and relieve Attorney Robert P.
VanDeHey of any further appellate representation of Hampton.
By the Court.—Judgments
and order affirmed.