District III/II
September 10, 2014
To:
Hon. Tammy Jo Hock
Circuit Court Judge
Brown County Courthouse
100 S. Jefferson St., P.O. Box 23600
Green Bay, WI 54305-3600
Michele Conard
Clerk of Circuit Court
Brown County Courthouse
P.O. Box 23600
Green Bay, WI 54305-3600
Daniel Goggin II
Goggin & Goggin
P.O. Box 646
Neenah, WI 54957-0646
Mary M. Kerrigan-Mares
Asst. District Attorney
300 E. Walnut St.
P.O. Box 23600
Green Bay, WI 54305-3600
Gregory M. Weber
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Ulices E. Guerrero, #606326
Dodge Corr. Inst.
P.O. Box 700
Waupun, WI 53963-0700
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Ulices E. Guerrero (L.C. #2011CF1412) |
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Before Brown, C.J., Neubauer, P.J., and Gundrum, J.
Ulices E. Guerrero appeals a judgment, entered upon his Alford[1] plea, convicting him of first-degree sexual assault (sexual contact) with a child under thirteen. Guerrero’s appellate counsel has filed a no-merit report pursuant to Wis. Stat. Rule 809.32 (2011-12)[2] and Anders v. California, 386 U.S. 738 (1967). Guerrero 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 Daniel Goggin II of further representing Guerrero in this matter.
Five-year-old E.M. told her mother that “Uncle Felipe” kissed her and put his tongue on her mouth and vagina, and that he had done it more than one time. Guerrero, an illegal immigrant who used various aliases, was identified as “Uncle Felipe.” E.M.’s eight-year-old friend, G.O., told E.M. that Guerrero also had touched her while G.O. was showering. Both girls maintained their claims in their videotaped interviews. Guerrero staunchly protested his innocence and vacillated between entering a plea and trying his case to a jury. After the trial court granted Guerrero several time extensions to consider his decision, he ultimately entered an Alford plea. The court then granted several adjournments to allow defense counsel to investigate and verify items Guerrero disputed in the presentence investigation report. Those issues resolved, the trial court imposed a bifurcated twenty-five-year sentence, fifteen years’ initial confinement and ten years’ extended supervision. This no-merit appeal followed.
The no-merit report addresses whether Guerrero
knowingly, voluntarily and intelligently entered his Alford plea. We agree with appellate counsel that this issue
has no arguable merit. The plea colloquy
was thorough and satisfied State v. Bangert, 131 Wis. 2d 246, 260-62,
389 N.W.2d 12 (1986). Although Guerrero
maintained his innocence, the prosecutor and defense counsel acknowledged, and
the trial court concluded, that there was strong proof of his guilt. See
State
v. Garcia, 192 Wis. 2d 845, 857-58, 532 N.W.2d 111 (1995). To accommodate Guerrero’s limited ability to
speak and comprehend the English language, interpreters and a Spanish-language
translation of the plea questionnaire were provided and his repeated requests
for additional time to make his decision were honored. The plea questionnaire and waiver of rights
form Guerrero signed, coupled with the substantive colloquy, is competent
evidence of a knowing and voluntary plea.
State v. Moederndorfer, 141
The no-merit report also considers whether a meritorious challenge could be made to the denial of Guerrero’s Shiffra/Green[3] motion for an in-camera inspection of records suggesting that E.M. previously had made false sexual abuse claims. There could not. His knowing and voluntary Alford plea waived all nonjurisdictional defects and defenses including claims of a pre-plea constitutional right violation. See State v. Kelty, 2006 WI 101, ¶18, 294 Wis. 2d 62, 716 N.W.2d 886.
As to the sentence, the record reveals that the
sentencing court’s discretionary decision had a “rational and explainable
basis.” State v. Gallion,
2004 WI 42, ¶76, 270
Appellate counsel indicates that Guerrero wants the trial court to review and modify his sentence. A court may modify a sentence on the basis of a new factor or when it concludes its original sentence was “unduly harsh or unconscionable.” State v. Grindemann, 2002 WI App 106, ¶21, 255 Wis. 2d 632, 648 N.W.2d 507. Guerrero evidently did not identify a new factor and none is apparent. To be unduly harsh, it must be so excessive or unusual as to shock public sentiment. Id., ¶31. “A sentence well within the limits of the maximum sentence is not so disproportionate to the offense committed as to shock the public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.” State v. Daniels, 117 Wis. 2d 9, 22, 343 N.W.2d 411 (Ct. App. 1983). In view of the nature of the crime and his sixty-year exposure, there would be no merit to a claim that Guerrero’s twenty-five-year sentence is unduly harsh or unconscionable.
Our independent review of the record discloses no other potential issues for appeal.
Upon the foregoing reasons,
IT IS ORDERED that the judgment of the circuit court is summarily affirmed, pursuant to Wis. Stat. Rule 809.21.
IT IS FURTHER ORDERED that Attorney Daniel Goggin II is relieved of further representing Guerrero in this matter.
Diane M. Fremgen
Clerk of Court of Appeals,