District II
August 6, 2014
To:
Hon. Jeffrey S. Froehlich
Circuit Court Judge
206 Court Street
Chilton, WI 53014
Barbara Van Akkeren
Clerk of Circuit Court
Calumet County Courthouse
206 Court Street
Chilton, WI 53014
Nicholas W. Bolz
District Attorney
206 Court Street
Chilton, WI 53014
Timothy T. O’Connell
O’Connell Law Office
P.O. Box 1625
Green Bay, WI 54305-1625
Gregory M. Weber
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
John W. Dunisch, #541201
Oshkosh Corr. Inst.
P.O. Box 3310
Oshkosh, WI 54903-3310
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. John W. Dunisch (L.C. #2013CF4) |
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Before Brown, C.J., Reilly and Gundrum, JJ.
John W. Dunisch appeals a judgment convicting him of burglary of a building or dwelling, contrary to Wis. Stat. § 943.10(1m)(a) (2011-12).[1] Dunisch’s appellate counsel has filed a no-merit report pursuant to Wis. Stat. Rule 809.32 and Anders v. California, 386 U.S. 738 (1967). Dunisch was advised of his right to file a response but he has not done so. Upon consideration of the no-merit report and an independent review of the record as mandated by Anders and Rule 809.32, we conclude that the judgment may be summarily affirmed because there is no arguable merit to any issue that could be raised on appeal. See Wis. Stat. Rule 809.21. We therefore affirm the judgment, accept the no-merit report, and relieve Attorney Timothy T. O’Connell of further representing Dunisch in this matter.
Dunisch initially was charged with child enticement and attempted first-degree sexual assault of a child under thirteen. The State later amended count one, child enticement, to burglary of a building or dwelling. Pursuant to a plea agreement, Dunisch agreed to plead guilty or no-contest to the amended charge and that count two would be dismissed and read in for sentencing. The State agreed to recommend probation, sentence withheld, and a year of conditional jail time. The circuit court accepted the plea and sentenced Dunisch to three years’ initial confinement plus five years’ extended supervision.
Postconviction, the court granted Dunisch’s motion to have the judgment of conviction corrected to reflect his eligibility for the Challenge Incarceration and Substance Abuse Programs (CIP, SAP) but denied his motion to vacate the DNA surcharge. This no-merit appeal followed.
The report first considers whether Dunisch could withdraw his plea as not knowingly and voluntarily entered. We agree with counsel’s analysis and conclusion that no issue of merit could be raised in this regard.
A defendant seeking to withdraw
a guilty or no-contest plea after sentencing bears “the heavy burden of
establishing, by clear and convincing evidence, that withdrawal of the plea is
necessary to correct a manifest injustice.” State v. McCallum, 208 Wis. 2d 463,
473, 561 N.W.2d 707 (1997). Under Wis. Stat. § 971.08, the circuit court must
ensure that a plea is knowingly, voluntarily, and intelligently entered by ascertaining
that the defendant understands the essential elements of the charge to which he
or she is pleading, the potential punishment for the charge, and the
constitutional rights being given up. State
v. Bangert, 131 Wis. 2d 246, 260-62, 389 N.W.2d 12, 20-21 (1986), and State v. Hampton, 2004 WI
107, ¶¶24, 33, 38, 274
Wis. 2d 379, 683 N.W.2d 14. The
defendant must make a prima facie case that the court did not comply with the
procedural requirements of § 971.08 and that he or she did not understand or
know the information that should have been provided. See
Bangert,
131 Wis. 2d at 274.
The record confirms that the
circuit court met each requirement. Besides a complete colloquy,
the court properly looked to the plea questionnaire/waiver of rights
form Dunisch signed reflecting
his understanding of the elements of the crime, the potential penalties, and the
rights he agreed to waive. See State v. Hoppe, 2009 WI 41, ¶¶30-32,
317 Wis. 2d 161, 765 N.W.2d 794. Dunisch
also orally reiterated his understanding under questioning by the court. He indicated no hesitation, confusion, or
lack of clarity, and confirmed his understanding that the court was not bound
by any sentencing recommendation. Further,
Dunisch
received the concessions contemplated by the plea agreement.
The report also analyzes a potential claim that the court erroneously exercised its discretion at sentencing. We agree with counsel’s conclusion that the sentence reflects a proper exercise of discretion and was not unduly harsh.
To properly exercise its discretion,
a circuit court must provide a rational and explainable basis for the
sentence. State v. Gallion, 2004 WI 42, ¶39, 270
No basis exists to disturb the sentence imposed. The court weighed proper sentencing factors, applied them in a reasoned and
reasonable manner, and provided a thorough and rational explanation for
imposing the sentence it did. The court focused
on Dunisch’s character, specifically his pattern of impulsive, ill-considered
decisions and, in this case, his attempt to blame the young victim for being
the aggressor. The weight given to each
factor is within the court’s discretion. Ocanas v. State, 70 Wis. 2d 179,
185, 233 N.W.2d 457 (1975).
We also assess whether Dunisch’s eight-year
total sentence is unduly harsh.
Presumptively it is not, as it is within the limits of the twelve years
he faced. See State v. Grindemann, 2002 WI App 106, ¶¶31-32, 255 Wis. 2d 632,
648 N.W.2d 507. It also actually is not
because the length is not so excessive and unusual and so disproportionate to
the offense committed as to shock public sentiment and violate the judgment of
reasonable people concerning what is right and proper under the circumstances. Ocanas, 70
Our independent review reveals no other meritorious issues.
For the foregoing reasons,
IT IS ORDERED that the judgment is summarily affirmed. See Wis. Stat. Rule 809.21.
IT IS FURTHER ORDERED that Attorney Timothy T. O’Connell is relieved of further representing Dunisch in this matter.
Diane M. Fremgen
Clerk of Court of Appeals
[1] Dunisch does not appeal the order denying his postconviction motion seeking to have the DNA surcharge vacated because the court did not explain the basis for imposing it. See State v. Cherry, 2008 WI App 80, ¶10, 312 Wis. 2d 203, 752 N.W.2d 393. Appellate counsel represents that Dunisch has chosen to waive any further challenge to the surcharge and Dunisch has not filed a response to the no-merit report stating otherwise.
All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.