COURT OF APPEALS DECISION DATED AND RELEASED April 16, 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. 95-2688-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CARL MITCHELL,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
DIANE S. SYKES, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Carl Mitchell pled guilty to burglary,
party to a crime, in violation of §§ 943.10(1)(a) and 939.05, Stats.
The trial court imposed the maximum sentence of ten years in prison,
consecutive to the sentence he was then serving. The court left open the amount of restitution pending further
investigation.
The state public
defender appointed Brian Findley to represent Mitchell on appeal. Findley filed a no merit report pursuant to Rule 809.32, Stats., and Anders v.
California, 386 U.S. 738 (1967).
Mitchell received a copy of the no merit report and filed a response.
Mitchell and an
accomplice were inside a church when police responded to the church's burglary
alarm. A speaker's amplifier, which was
missing from the church, was found in their vehicle. Mitchell agreed to plead guilty in exchange for the prosecution's
agreement to request a presentence investigation and to recommend a concurrent
prison sentence. In his response to the
no merit report, Mitchell claimed that he had been drinking, which he blamed on
the recent death of his mother.
The no merit report
addresses whether Mitchell's guilty plea was knowingly, intelligently, and
voluntarily entered. Findley concludes
that this possible issue has no arguable merit. Based upon our independent review of the record, we conclude that
his analysis of the issue is correct.
In order to assure that
a plea is knowingly, voluntarily, and intelligently entered, the trial court is
obligated by § 971.08(1)(a), Stats.,
to ascertain that a defendant understands the nature of the charges to which he
or she is pleading, the potential punishment for those charges, and the
constitutional rights being relinquished by entering a guilty plea. See State v. Bangert, 131
Wis.2d 246, 260-62, 389 N.W.2d 12, 20-21 (1986). The plea colloquy between Mitchell and the trial court satisfied
this standard. Additionally, the court
adduced that an adequate factual basis existed for finding Mitchell guilty of
the charges. See
§ 971.08(1)(b).
The no merit report and
Mitchell's response address whether the sentence imposed by the trial court was
unduly harsh. Findley concludes that
this possible issue has no arguable merit.
Mitchell alleges that he agreed to plead guilty because plea counsel
said he would receive a five-year sentence.
Mitchell contends that imposition of the maximum sentence was unduly
harsh because the building was a commercial building, not a residence, and that
the sentence was based on inaccurate information.
Regarding Mitchell's
allegation that the trial court relied on inaccurate information, we note that
plea counsel represented to the court that he and Mitchell had reviewed the
report of the presentence investigation on multiple occasions and that no
additions or corrections were needed.
If any information was inaccurate or misleading, Mitchell was obligated
to advise the court of that fact at the sentencing hearing.
When a defendant claims
a sentence is unduly harsh, this court first determines if the trial court
exercised its discretion and then whether the sentence was excessive. State v. Glotz, 122 Wis.2d
519, 524, 362 N.W.2d 179, 182 (Ct. App. 1984).
The exercise of discretion requires the court to consider the gravity of
the offense, the character of the offender, and the need to protect the
public. Id. Appellate courts are reluctant to interfere
with a trial court's sentence, and a defendant must show an unreasonable or
unjustifiable basis for the sentence. Id.
In the present case, the
court considered the primary factors during its lengthy colloquy. The court considered burglary of a church to
be very serious, noting both the members' loss of a sense of security and the
respected place of churches in society.
Additionally, the court viewed Mitchell's criminal record and personal
history as evidence that he was a clear danger to the physical safety and
property of the community. Discretion
was properly exercised.
The final question is
whether the sentence is "so excessive and unusual and so disproportionate
to the offense committed as to shock public sentiment and violate the judgment
of reasonable people concerning what is right and proper under the
circumstances." Ocanas v.
State, 70 Wis.2d 179, 185, 233 N.W.2d 457, 461 (1975). In light of the trial court's comments
during sentencing and our deference to the trial court, see id.
at 183, 233 N.W.2d at 460, we cannot conclude that the sentence is excessive.
Our independent review
of the record did not disclose any additional potential issues for appeal. Therefore, any further proceedings on
Mitchell's behalf would be frivolous and without arguable merit within the meaning
of Anders and Rule 809.32(1),
Stats. Accordingly, the judgment of conviction is affirmed, and Findley
is relieved of any further representation of Mitchell on this appeal.
By the Court.—Judgment
affirmed.