District III
June 17, 2014
To:
Hon. Robert E. Eaton
Circuit Court Judge
Ashland County Courthouse
201 West Main Street
Ashland, WI 54806-1688
Kathleen Colgrove
Clerk of Circuit Court
Ashland County Courthouse
201 West Main Street
Ashland, WI 54806-1688
Donald T. Lang
Asst. State Public Defender
P. O. Box 7862
Madison, WI 53707-7862
Kelly J. McKnight
District Attorney
201 W. Main Street, Room 102
Ashland, WI 54806-1660
Gregory M. Weber
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Brian John Blum (L.C. #2013CM32) |
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Before Mangerson, J.[1]
Counsel for Brian Blum has filed a no-merit report concluding there is no arguable basis for Blum to appeal a judgment convicting him of violating a harassment injunction as a repeater. Blum died without filing a response to the report. Upon this court’s independent review of the record as mandated by Anders v. California, 386 U.S. 738 (1967), no issue of arguable merit appears.
A jury convicted Blum based on evidence that he violated a harassment injunction by making heart-shaped footprints in the snow outside an apartment occupied by Geralyn Masterson. Masterson had a harassment injunction and order of protection entered against Blum requiring him to avoid her residence and avoid any contact that would harass or intimidate her. A deputy followed the footprints to Blum’s duplex apartment. Masterson testified she was “scared” when she saw the footsteps in the snow.
After being advised of his right to testify, Blum elected not to testify. The defense called no witnesses.
The record discloses no arguable
basis for challenging the sufficiency of the evidence. This court must sustain the jury’s verdict if
the evidence, viewed most favorable to the State, would allow a reasonable jury
to find guilt beyond a reasonable doubt.
State v. Poellinger, 153
During the trial, the defense requested a mistrial, alleging Masterson’s testimony regarding her conversation with a deputy on the morning of the incident violated the court’s restriction on presenting other acts testimony. Masterson stated: “[H]e called to inform me there were heart things and footprints going up to my .…” At that point the testimony was interrupted by a defense objection, contending the testimony brought up Blum’s prior acts of making heart‑shaped footprints. The court struck Masterson’s statement and instructed the jury to disregard it. The court properly exercised its discretion by denying the request for a mistrial. See State v Ross, 2003 WI App 27, ¶47, 260 Wis. 2d 291, 659 N.W.2d 122.
Because Blum is now deceased, any issue regarding the propriety of the sentence is moot. See State ex rel. Olson v. Litscher, 2000 WI App 61, ¶3, 233 Wis. 2d 685, 608 N.W.2d 425.
Finally, no-merit counsel questions whether the conviction should be abated due to Blum’s death while his appeal was pending. In State v. McDonald, 144 Wis. 2d 531, 536, 424 N.W.2d 411 (1988), the court concluded: “We disagree, however, that the appropriate remedy is to abate the criminal proceedings ab initio. Instead, we conclude that, when a defendant dies pending an appeal, regardless of the cause of death, the defendant’s right to appeal continues.” Therefore, Blum is not entitled to abatement of the conviction. Rather, he is entitled to completion of the no-merit process to determine whether he was properly convicted.
This court’s independent review of the record discloses no other potential issue for appeal.
IT IS ORDERED that the judgment is summarily affirmed. Wis. Stat. Rule 809.21.
IT IS FURTHER ORDERED that attorney Donald Lang is relieved of his obligation to further represent Blum in this matter.
Diane M. Fremgen
Clerk of Court of Appeals
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(f) (2011-12). All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.