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COURT OF APPEALS DECISION DATED AND RELEASED July 31, 1996 |
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. |
No. 95-2858-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOHN T. NEITA,
Defendant-Appellant.
APPEAL from a judgment
and orders of the circuit court for Milwaukee County: JEFFREY A. KREMERS, Judge.
Affirmed.
Before Sullivan, Fine
and Schudson, JJ.
PER
CURIAM. John T. Neita appeals from a judgment convicting him
of possession of cocaine base with intent to deliver and from orders denying
his postconviction motions. The State
Public Defender appointed Attorney Lynn M. Bureta as Neita's appellate
counsel. Attorney Bureta served and
filed a no merit report pursuant to Anders v. California, 386 U.S.
738 (1967) and Rule 809.32(1), Stats.
Neita filed several responses.
After an independent review of the record as mandated by Anders,
we conclude that any further appellate proceedings would lack arguable
merit.
Neita pled guilty to
possession of cocaine base with intent to deliver, as a party to the crime, and
as a subsequent offense, contrary to §§ 161.14(7)(a), 161.41(1m)(cm)4,
939.05 and 161.48, Stats.,
1991-92. The trial court imposed a
fourteen-year sentence and denied Neita's postconviction motions for sentence
modification and other relief.
The no merit report
addresses whether: (1) there was a
sufficient factual basis to support Neita's guilty plea; (2) Neita entered
his guilty plea knowingly, intelligently and voluntarily; and whether withdrawal
of that plea is necessary to correct a manifest injustice; (3) the trial
court erroneously exercised its sentencing discretion; and (4) Neita
received ineffective assistance of trial counsel. In his response, Neita raises these issues: (1) problems with the bench warrant; (2)
abuse of prosecutorial discretion; (3) his mental illness/incompetence; (4)
that his treatment needs constitute a new factor entitling him to sentence
modification; and (5) ineffective assistance of appellate counsel.
Neita claims that there
was an insufficient factual basis to support his guilty plea. However, when Neita entered his guilty plea,
his counsel stipulated to use of the complaint as a factual basis and the trial
court asked Neita directly if he had "read the complaint where it says
what you did" and if that "[i]s ... what happened?" Neita responded, "yes. Substantially." While Neita now raises issues challenging
the sufficiency of the factual basis, such as whether the substance was cocaine
base, it would lack arguable merit to pursue these issues because Neita waived
these challenges.
Neita raises a variety
of issues which we address together because these nonjurisdictional challenges
and potential defenses were waived by Neita's guilty plea. Neita challenges the bench warrant as
violative of §§ 968.03 and 968.04, Stats. He also claims that there was an abuse of
prosecutorial discretion because the evidence was "physically
abused," the complaint was "rewritten," documents were altered,
discovery was withheld, the facts were misrepresented to preclude an entrapment
defense and there was a delay in prosecution.
We have nothing but Neita's unsubstantiated, nonspecific allegations of
prosecutorial wrongdoing which he waived by pleading guilty.
A guilty plea waives all
nonjurisdictional defects and defenses.
State v. Bangert, 131 Wis.2d 246, 293, 389 N.W.2d 12, 34
(1986). Neita admitted the accuracy and
validity of the State's charges and waived all procedural rights which he may
have otherwise invoked, by pleading guilty.
Consequently, we review the record independently to determine whether
any arguable basis exists for Neita to challenge his plea.
The trial court must
comply with the requirements for accepting a plea. Section 971.08, Stats.;
Bangert, 131 Wis.2d at 261-62, 389 N.W.2d at 21. The trial court must determine the
defendant's education and general comprehension and establish his understanding
of the nature of the crimes and the applicable range of punishment. Id., 131 Wis.2d at 261-62, 389
N.W.2d at 21. It also must ascertain
whether there were any promises or threats relating to his appearance and his
proposed plea. Id. at
262, 389 N.W.2d at 21.
The trial court
addressed Neita personally and advised him that by pleading guilty he was waiving
his constitutional rights. The trial
court confirmed that no promises or threats induced his guilty plea. The trial court asked Neita to restate the
charges in his own words. The trial
court advised Neita that there was a presumptive minimum sentence and that it
was not obliged to follow the prosecutor's recommendation.
The trial court
discussed Neita's signed guilty plea questionnaire and waiver of rights form
("plea questionnaire"). Neita
told the trial court that he reviewed the plea questionnaire with his attorney
before he signed it. Neita indicated in
the plea questionnaire that he was waiving his constitutional rights, including
his rights to a jury trial and a unanimous verdict, to present evidence on his
behalf and to confront his accusers.
Additionally, he understood that he waived his right to have the State
prove every element of the crime beyond a reasonable doubt. Neita indicated that he was thirty-five
years old with an eleventh-grade education.
He also indicated that he was not currently using drugs or alcohol that
would interfere with his understanding of the court's proceedings. Trial counsel described his "mental
health problems" as "a slight learning disability."[1] He also indicated that the range of
punishment was a twenty to sixty-year sentence.
The trial court
determined that Neita understood the proceedings and the ramifications of his
plea and found that he pled guilty knowingly, intelligently and
voluntarily. Upon our independent
review of the plea questionnaire and the transcript of the plea hearing, we
agree with appellate counsel's conclusion that any challenge to Neita's guilty
plea would lack arguable merit.
Neita did not move to
withdraw his plea. He merely raises
that issue in his response. He claims
that he was misled because the mandatory minimum sentence was changed from ten
to twenty years and he unfairly received a harsher sentence because he
possessed cocaine base, rather than cocaine.[2] The record belies Neita's claims. Our independent review of the record reveals
no arguable basis to pursue an issue of plea withdrawal.
Our review of the
sentence is limited to whether the trial court erroneously exercised its
discretion. State v. Larsen,
141 Wis.2d 412, 426, 415 N.W.2d 535, 541 (Ct. App. 1987). The primary factors are the gravity of the
offense, the character of the offender, and the need for public
protection. Id. at 427,
415 N.W.2d at 541. The weight given to
each factor is within the sentencing court's discretion. Cunningham v. State, 76 Wis.2d
277, 282, 251 N.W.2d 65, 67-68 (1977).
The trial court
considered the primary sentencing factors.
The sentencing court commented that drug dealing "at any
level" is serious, and particularly in such quantity.[3] The trial court considered the character of
the offender and concluded that Neita's background is
"horrible." The trial court
balanced Neita's treatment needs against the risk to the community and
concluded that Neita's prior record, coupled with his background, could justify
imposition of the maximum, sixty-year, sentence. Because Neita was not a primary participant in this crime, the
trial court declined to impose a sixty-year sentence.
Neita complains that his
sentence is unduly harsh because his accomplices received significantly shorter
sentences. However, the sentencing
court explained that Neita's accomplices did not have his prior record.[4] The trial court applied the sentencing
factors and explained the mitigating circumstances which supported its
sentence. We agree with appellate
counsel's description, analysis and conclusion that challenging the sentence
would lack arguable merit.
Neita moved for sentence
modification based on the importance of treatment addressed in a psychological
evaluation. The trial court denied the
motion because it had considered that evaluation. It further emphasized that "the defendant's risk to the
community outweighed any treatment requirements." Neita also filed postconviction motions on
his own behalf. The trial court denied
the pro se motions without prejudice because Neita was represented by
counsel. Our review of the record
persuades us that any challenge to the trial court's postconviction orders
would lack arguable merit.
Neita raises numerous
complaints which could be considered ineffective assistance of trial
counsel. Appellate counsel concluded
that any challenge to the effectiveness of trial counsel would lack arguable
merit. "[I]t is a prerequisite to
a claim of ineffective representation on appeal to preserve the testimony of
trial counsel." State v.
Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905, 908 (Ct. App. 1979). It is inappropriate for this court to
determine the competency of trial counsel on unsupported allegations. State v. Simmons, 57 Wis.2d
285, 297, 203 N.W.2d 887, 894-95 (1973).
Because there is no evidentiary record on this issue, we cannot review
Neita's claims of ineffective assistance of trial counsel.
Neita also claims that
appellate counsel was ineffective for failing to raise issues he believed were
meritorious.[5] Ineffective assistance of appellate counsel
must be pursued by a petition for a writ of habeas corpus in this court. State v. Knight, 168 Wis.2d
509, 522, 484 N.W.2d 540, 545 (1992).
We will not review that claim on direct appeal. See id. at 512-13, 484
N.W.2d at 541.
We have addressed the
issues Neita has raised. Upon our
independent review of the record, 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
judgment of conviction and postconviction orders and relieve Attorney Lynn M.
Bureta of any further representation of Neita in this appeal.
By the Court.—Judgment
and orders affirmed.
[1] Neita claims that his plea was infirm "[f]or mentally ill or incompetent reasons." The trial court was aware of Neita's "slight learning disability" and questioned Neita directly before accepting his guilty plea. At sentencing, defense counsel explained why he enlisted the assistance of a social worker and a forensic clinical neuropsychologist to file sentencing memoranda. To pursue this conclusory claim of mental incompetence would lack arguable merit.
[2] These reasons are insufficient to withdraw a plea which was otherwise entered properly. However, the trial court expressly decided to "treat [this conviction] as if it was a ten year presumptive of being consistent with the legislative intent not to distinguish between base and powder cocaine or cocaine hydrochloride."