District I
January 13, 2014
To:
Hon. Timothy G. Dugan
Milwaukee County Courthouse
901 N. 9th Street
Milwaukee, WI 53233
John Barrett, Clerk
Milwaukee County Courthouse
821 W. State Street, Room 114
Milwaukee, WI 53233
Karen A. Loebel
Asst. District Attorney
821 W. State Street
Milwaukee, WI 53233
Mark A. Schoenfeldt
Attorney at Law
135 W. Wells Street, Suite 604
Milwaukee, WI 53203
Gregory M. Weber
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Allen M. Nero #445822
Kettle Moraine Corr. Inst.
P.O. Box 282
Plymouth, WI 53073-0282
You are hereby notified that the Court has entered the following opinion and order:
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State v. Allen M. Nero (L.C. #2012CF1910) |
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Allen M. Nero appeals his convictions, entered upon his guilty pleas, for one count of delivering schedule I or II narcotics and one count of felony bail jumping, contrary to Wis. Stat. § 961.41(1)(a) & 946.49(1)(b) (2011-12).[1] Postconviction/appellate counsel, Mark A. Schoenfeldt, has filed a no-merit report pursuant to Anders v. California, 386 U.S. 738 (1967), and Wis. Stat. Rule 809.32, to which Nero has not responded. We have independently reviewed the record and the no-merit report. On December 13, 2013, we directed counsel to file a supplemental report “that addresses whether the trial court actually imposed a DNA surcharge at sentencing and, if so, whether there is any basis to challenge the trial court’s explanation for that DNA surcharge.” We indicated that in the alternative, if counsel identified an issue of merit, he could move to dismiss the appeal and extend the time for filing a postconviction motion.
Attorney Schoenfeldt now moves
to dismiss the no-merit report and extend the time for filing a postconviction
motion. The motion indicates that
counsel believes that there is an issue of arguable merit concerning the DNA
surcharge and that Nero has informed counsel that he wishes to pursue that
issue. Because a no-merit report is only
appropriate if counsel is convinced that an appeal would be wholly frivolous, McCoy
v. Court of Appeals, 486 U.S. 429, 437 (1988), this court will grant
the request.
Therefore,
IT
IS ORDERED that the no-merit report in appeal No. 2013AP1067-CRNM is rejected
and the appeal is dismissed without prejudice.
IT IS FURTHER ORDERED that the deadline for Attorney Mark A. Schoenfeldt to file a postconviction motion on Nero’s behalf is extended to sixty days from the date of this order. See Wis. Stat. Rule 809.82(2)(a) (2011-12).
Diane M. Fremgen
Clerk of Court of Appeals