District II
July 23, 2014
To:
Hon. Anthony G. Milisauskas
Circuit Court Judge
Kenosha County Courthouse
912 56th St.
Kenosha, WI 53140
Rebecca Matoska-Mentink
Clerk of Circuit Court
Kenosha County Courthouse
912 56th St.
Kenosha, WI 53140
Kaitlin A. Lamb
Assistant State Public Defender
735 N. Water St., Ste. 912
Milwaukee, WI 53202
Gregory M. Weber
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Robert D. Zapf
District Attorney
Molinaro Bldg.
912 56th St.
Kenosha, WI 53140-3747
Michael R. Jensen, #99833
Stanley Corr. Inst.
100 Corrections Dr.
Stanley, WI 54768
You are hereby notified that the Court has entered the following opinion and order:
|
|
|
|
|
|
|
State of Wisconsin v. Michael R. Jensen (L.C. #2012CF295) |
|
|
|
|
Before Brown, C.J., Neubauer, P.J., and Reilly, J.
Michael R.
Jensen pled guilty to first-degree child sexual assault, lifetime supervision,
contrary to Wis. Stat. §§
948.02(1)(e) and 939.615(2)(a) (2011-12).[1] He appeals the judgment of conviction and the
order denying his motion for postconviction relief. His appellate counsel has filed a no-merit
report pursuant to Wis. Stat. Rule 809.32 and Anders v. California,
386 U.S. 738 (1967). Jensen was
served with a copy of the report, but has not filed a response
despite being granted three extensions of time due to his complaints of limited access to legal materials.[2] Based upon the report and our independent review of the record as required by Anders and Rule 809.32, we conclude that no issue of arguable merit could be raised on appeal. We affirm the judgment and order, accept the no-merit report, and relieve Attorney Kaitlin A. Lamb of further representing Jensen in this matter.
Jensen was charged with first-degree
child sexual assault, as a persistent repeater, lifetime supervision, for acts
involving a close friend’s seven-year-old daughter. In exchange for his guilty plea, the State
agreed to drop the persistent-repeater enhancer, which carries with it a
sentence of life without possibility of parole, and to recommend “substantial”
prison time instead. The court sentenced
him to twenty years’ confinement and fifteen years’ extended supervision. Postconviction, Jensen moved for resentencing
on grounds that the court relied on inaccurate information in the presentence
investigation report regarding four Milwaukee county offenses he claimed he did
not commit. The motion was denied after
a hearing. This no-merit appeal
followed.
The no-merit report concludes that any effort on Jensen’s part to withdraw his plea to correct a manifest injustice or to challenge his sentence as an erroneous exercise of discretion or in reliance on inaccurate information would be without arguable merit. We agree.
There is no
arguable basis for Jensen to withdraw his guilty plea. He executed a plea questionnaire and waiver-of-rights
form that, along with the court’s thorough colloquy,[3]
informed him of the constitutional rights he waived by pleading guilty, the
elements of the offense, and the potential sentence of sixty years’
imprisonment. The court specifically
clarified that it was not bound by the plea negotiations and could impose the
maximum sentence, and ensured that Jensen understood he could be placed on
lifetime sex offender registration. Our
independent review of the record satisfies us that the plea was knowingly,
voluntarily, and intelligently entered under Wis.
Stat. § 971.08(1) and
The no-merit
report also considers the circuit court’s exercise of discretion at
sentencing. Sentencing is left to the
discretion of the circuit court, and appellate review is limited to determining
whether that discretion was erroneously exercised. State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197. Here, the court carefully examined the
gravity of the Jensen’s admitted offense, his character, and the need to
protect the public. See State v. Harris, 119 Wis. 2d 612, 623, 350 N.W.2d 633 (1984). The court observed that, despite already
having served a seven-year sentence for a past child sexual assault, Jensen has
gone on to reoffend. Jensen’s twenty-year sentence is not so excessive, unusual,
and disproportionate to the offense committed as to shock public sentiment. Ocanas v. State, 70 Wis. 2d 179,
185, 233 N.W.2d 457 (1975). The court’s “rational and
explainable basis” for the sentence satisfies this court that discretion in
fact was exercised, Gallion, 270 Wis. 2d 535, ¶39 (citation omitted), and that no issue of merit
could arise from this point.
Finally, we agree with
appellate counsel that no meritorious challenge could be made that Jensen’s
postconviction motion claiming he was sentenced on inaccurate information was
wrongly denied. The basis for the motion
was that at sentencing, the court mentioned four Milwaukee county offenses
(three disorderly conducts and one trespassing) listed in the PSI, which Jensen
insisted he had not committed.
Postconviction counsel’s investigator could find no court record of any
Milwaukee county convictions.
The sentencing court simply
referred to the four offenses, which occurred between 1981 and 1983, as it was
reciting Jensen’s lengthy record and run-ins with the law, beginning as a
juvenile. The postconviction motion
hearing transcript shows that the court called them “charges,” not convictions,
then surmised that, as the penalties listed were fines or a few days is jail,
the charges likely were for ordinance violations. The transcript confirms that the court
devoted its sentencing rationale to the severity of this offense and to
Jensen’s other serious crimes and the need to protect the public. Even if the Milwaukee county information was
not accurate, Jensen could not make a viable claim that the court relied on it
in fashioning his sentence. See State v. Tiepelman, 2006 WI 66, ¶2,
291 Wis. 2d 179, 717 N.W.2d 1.
Our review of the record discloses no other potential issues for appeal.
Upon the foregoing reasons,
IT IS ORDERED that the judgment and order of the circuit court are summarily affirmed, pursuant to Wis. Stat. Rule 809.21.
IT IS FURTHER ORDERED that Attorney Kaitlin A. Lamb is relieved of further representing Jensen in this matter.
Diane M. Fremgen
Clerk of Court of Appeals
[1] All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
[2] The last order, granting a six-week extension, advised Jensen that this court “will accept an informal letter or memorandum as a response to the no-merit report,” that the response “does not require citations to the record or to authority,” and that he need only “direct[] this court’s attention to issues [he] believes should be raised on appeal.”
[3] Although the court did not provide the required advisement regarding possible consequences for non-citizens, see Wis. Stat. § 971.08(1)(c), we conclude this issue has no arguable merit. Jensen’s plea withdrawal motion on this basis would have to allege that the circuit court failed to advise him of the plea’s deportation consequences and that his plea “is likely to result in [his] deportation, exclusion from admission to this country[,] or denial of naturalization.” Sec. 971.08(2). Jensen was born and raised in Wisconsin. Nothing in the record suggests he is not a United States citizen.