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COURT OF APPEALS DECISION DATED AND RELEASED February 8, 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. 95-2971-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ROGER A. MCGINNIS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Marquette County:
DONN H. DAHLKE, Judge. Affirmed.
VERGERONT, J.[1] Counsel
for Roger McGinnis has filed a no merit report pursuant to Rule 809.32, Stats. McGinnis has
filed a response with numerous attachments relating to previous offenses and
his efforts to obtain executive clemency.
Upon our independent review of the record as mandated by Anders v.
California, 386 U.S. 738 (1967), we conclude that there is no arguable
merit to any issue that could be raised on appeal.
McGinnis was convicted
by a jury of operating after revocation of his license, fifth offense. The no merit report addresses the
sufficiency of the evidence, the trial court's exclusion of evidence offered
for the purpose of showing that the revocation was not duly made and that
McGinnis was not aware of his revoked status, the trial court's failure to
grant a continuance to allow McGinnis an opportunity to attempt to reopen some
previous cases and the propriety of the sentence. Our independent review of the record confirms counsel's
conclusion that there is no arguable basis for appeal on these issues.
McGinnis concedes that
he was driving after revocation of his license. The only issue is whether he knew or had cause to believe that
his license might be revoked or suspended.
See State v. Collova, 79 Wis.2d 473, 487, 255
N.W.2d 581, 588 (1977). This court must
view the evidence in a light most favorable to the verdict and affirm the
verdict if the jury, acting reasonably, could have been convinced beyond a
reasonable doubt by the evidence it had a right to believe and accept as
true. See State v. Olson,
75 Wis.2d 575, 594-95, 250 N.W.2d 12, 22 (1977).
The State presented
sufficient evidence to support the conviction.
McGinnis testified that he recalled being in a Sauk County court on
October 26, 1992, and the judge telling him that his operating privileges in
Wisconsin were revoked for six months.
He agreed that he had not taken steps to reinstate those privileges at
any time thereafter. He also acknowledged
that he had gotten tickets in Dane County and was aware that the State of
Wisconsin believed that his operating privileges were revoked. He testified that he reinstated his Illinois
driving privileges on October 21, 1993, while he was living in Wisconsin, but
gave an Illinois address at which he had not lived for over a year. Finally, although McGinnis denied it, the
arresting officer testified that McGinnis admitted to him at the time of arrest
that his operating privileges were revoked.
In his response, McGinnis challenges the credibility of the officer's
testimony and accuses the officer of perjury.
The jury is the sole judge of the witness' credibility and it had the
right to accept the officer's testimony.
See State v. Toy, 125 Wis.2d 216, 222, 371 N.W.2d
386, 389 (Ct. App. 1985).
At trial, McGinnis
established that an April 22, 1992 five-year suspension of his driving
privileges was based on a failure to pay a forfeiture arising out of a default
judgment for selling a motor vehicle without a title. McGinnis explained that he defaulted because the notice was sent
to the wrong address. The prosecution
objected to this line of questioning and the trial court excluded further
testimony on that subject. McGinnis's
excuses or explanations for the April 22, 1992 suspension are irrelevant
because he was also subject to a December 8, 1993 order of revocation. That revocation was based on failure to obey
a traffic sign or signal in addition to operating after revocation and
suspension. Because the December 8,
1993 revocation was not based "solely" on the failure to pay a
forfeiture, § 343.44(2)(c)2, Stats.,
does not apply. See State
v. Biljan, 177 Wis.2d 14, 20, 501 N.W.2d 820, 823 (Ct. App. 1993). Because McGinnis was guilty of driving after
the December 8, 1993 revocation, evidence relating to the April 22, 1992
suspension was irrelevant.
McGinnis was not
prejudiced by the trial court's failure to grant a continuance while he sought
to reopen the 1992 judgment for failing to deliver title at the time of
sale. The motion to reopen was
ultimately denied. McGinnis was
therefore not prejudiced by the trial court's failure to wait for resolution of
the motion. In his response to the no
merit report, McGinnis states that he was unaware that he could appeal the
decision denying the motion to reopen and notes that he applied for executive
clemency. The trial court was not
required to delay trial until all avenues of relief have been exhausted. This appeal does not provide a forum for
collateral attack on other convictions or the performance of counsel in other
cases.
The trial court properly
exercised its sentencing discretion.
The court ordered a fine of $600 plus costs, six months in the county
jail with Huber privileges and revocation of McGinnis's operating privileges
for six months. The fine was a fraction
of the maximum fine allowed and the jail sentence was one-third the maximum
penalty. The trial court reasonably
rejected McGinnis's argument that he failed to receive written notices, pointing
out that it is his responsibility to notify the department of his change of
address. The court also noted
McGinnis's belated acknowledgment of the seriousness of the situation. The sentencing court considered no improper
factors and the sentence is not so excessive, unusual or disproportionate as to
shock public sentiment. Ocanas v.
State, 70 Wis.2d 179, 185, 233 N.W.2d 457, 461 (1975).
Our review of the no
merit report and the response, as well as our independent review of the record,
establishes no arguable issues for appeal.
Therefore, we relieve Attorney Ruth S. Downs of further representing
McGinnis in this matter and affirm the judgment of conviction.
By the Court.—Judgment
affirmed.