District IV
September 9, 2014
To:
Hon. J. David Rice
Circuit Court Judge, Br. 3
Monroe County Courthouse
112 S. Court St., Room 108
Sparta, WI 54656
Shirley Chapiewsky
Clerk of Circuit Court
Monroe County Courthouse
112 South Court Street, Room 203
Sparta, WI 54656-1765
Daniel D. Cary
District Attorney
112 S. Court Street #201
Sparta, WI 54656-1765
Patricia A. FitzGerald
Patricia A. FitzGerald Law Office
229 N. Grove St.
Mt. Horeb, WI 53572-1615
Gregory M. Weber
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Larry A. Schaffer 157915
Waupun Corr. Inst.
P.O. Box 351
Waupun, WI 53963-0351
You are hereby
notified that the Court has entered the following opinion and order:
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State of
Wisconsin v. Larry A. Schaffer (L.C. # 2011CF19) |
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Before Blanchard, P.J.,
Sherman and Kloppenburg, JJ.
Larry Schaffer appeals a judgment convicting him,
after a plea of no contest, of two counts of second-degree reckless homicide,
contrary to Wis. Stat. § 940.06(1)
(2001-02). Attorney Patricia FitzGerald
has filed a no-merit report seeking to withdraw as appellate counsel. See Wis. Stat. Rule 809.32 (2011-12)[1]; see also Anders v. California,
386 U.S. 738, 744 (1967); State ex rel. McCoy v. Wisconsin Court of
Appeals, 137 Wis. 2d 90, 403 N.W.2d 449 (1987), aff’d, 486 U.S. 429 (1988). The no-merit report addresses the validity of
the plea and sentence and whether there were any suppression issues that should
have been raised. Schaffer was sent a
copy of the report, but has not filed a response. Upon reviewing the entire record, as well as
the no-merit report, we conclude that there are no arguably meritorious
appellate issues.
First, we see no arguable basis for plea withdrawal. In order to withdraw a plea after sentencing,
a defendant must either show that the plea colloquy was defective in a manner
that resulted in the defendant actually entering an unknowing plea, or
demonstrate some other manifest injustice such as coercion, the lack of a
factual basis to support the charge, ineffective assistance of counsel, or
failure by the prosecutor to fulfill the plea agreement. State v. Bangert, 131 Wis. 2d
246, 255-76, 389 N.W.2d 12 (1986);
State v. Krieger, 163 Wis. 2d 241, 249-51 & n.6, 471 N.W.2d
599 (Ct. App. 1991). There is no
indication of any such defect here.
Shaffer was originally charged with two counts of
first-degree homicide with a weapons enhancer and two counts of hiding a corpse,
as a party to a crime. Schaffer
originally pled not guilty by reason of mental disease or defect. The court ordered a psychiatric evaluation. The psychiatrist’s report did not support a
plea of not guilty by reason of mental disease or defect, after which point
Schaffer withdrew his plea.
Schaffer then entered into a plea agreement with the
State, whereby he agreed to plead guilty or no contest to amended charges of
two counts of second-degree reckless homicide, and the State agreed to cap its
sentencing recommendation at sixteen years of initial confinement followed by
extended supervision. The State agreed
to dismiss and read in the two charges of hiding a corpse. No agreement was reached regarding the length
of the extended supervision recommendation.
At the plea hearing, the terms of the plea agreement were presented in
open court.
The circuit court conducted a standard plea colloquy
with Schaffer, inquiring into his ability to understand the proceedings and the
voluntariness of his plea decisions, and further exploring Schaffer’s
understanding of the nature of the charges, the penalty ranges and other direct
consequences of the pleas, and the constitutional rights being waived. See Wis. Stat. § 971.08; State
v. Hoppe, 2009 WI 41, ¶18, 317 Wis. 2d 161,
765 N.W.2d 794; Bangert, 131 Wis. 2d at 266-72.
The court made sure that Schaffer understood
that it would not be bound by any sentencing recommendations. In addition, Schaffer provided the court with
a signed plea questionnaire. Schaffer
indicated to the court that he understood the information explained on that
form, and is not now claiming otherwise. See State v. Moederndorfer, 141
Wis. 2d 823, 827-28, 416 N.W.2d 627 (Ct. App. 1987).
The court relied on the testimony presented at the
preliminary hearing as a factual basis for the plea. Specifically, Schaffer’s sister, Eunice Hogan,
testified that she, her husband, Troy Hogan, and Schaffer went to the home of
the two alleged victims, Connie DeGeorge and Kale Kvistad on the evening of
March 31, 2002. The alleged victims got
into the car. Troy drove the car and
Schaffer sat in the backseat with DeGeorge and Kvistad. Eunice testified that she saw a gun in
Schaffer’s hand. They drove to a wooded
area and Troy parked the car with the lights on. Eunice saw Schaffer give the gun to
Troy. She saw Schaffer and DeGeorge on
the ground. She saw Kvistad fight and
yell, and then Troy hit him with the gun.
She testified that Schaffer got up, took the gun from Troy, and shot DeGeorge
and then Kvistad.
There is nothing in the record to suggest that
counsel’s performance was in any way deficient, and we are not aware of any
other facts that would give rise to a manifest injustice. Therefore, Schaffer’s plea was valid and
operated to waive all nonjurisdictional defects and defenses, aside from any
suppression ruling. See State v. Kelty, 2006 WI 101, ¶18, 294 Wis. 2d 62,
716 N.W.2d 886; Wis. Stat.
§ 971.31(10).
We agree with counsel’s assessment that there are no
suppression issues to be raised on appeal. In this case, the remains of the
victims were discovered over two years after the homicides. No physical evidence was offered by the State
that would connect Schaffer with the homicides, and no motions to suppress evidence were filed.
A challenge to Schaffer’s
sentence would also lack arguable merit.
Our review of a sentencing determination begins with a “presumption that
the [circuit] court acted reasonably” and it is the defendant’s burden to show
“some unreasonable or unjustifiable basis in the record” in order to overturn
it. State v. Krueger, 119 Wis. 2d 327,
336, 351 N.W.2d 738 (Ct. App. 1984).
The court considered the standard sentencing factors and explained their
application to this case. See generally State v. Gallion, 2004 WI 42, ¶¶39-46, 270 Wis. 2d 535, 678 N.W.2d
197. The court emphasized the
seriousness of the offenses and concluded that a prison term was necessary to protect
the public.
The court then sentenced Schaffer to ten years of initial confinement and five years of extended supervision on each count, to be served consecutive to each other. The judgment of conviction reflects that the court determined that Schaffer was not eligible for the challenge incarceration program or substance abuse program.
The components of the bifurcated sentences imposed were within the applicable penalty ranges. See Wis. Stat. §§ 940.06(1) (2001-02) (classifying second-degree reckless homicide as a Class C felony prior to February 1, 2003); 973.01(2)(b)3. and (d)2. (2001-02) (providing maximum terms of twenty-five years of confinement and fifteen years of extended supervision for a Class C felony). There is a presumption that a sentence “‘well within the limits of the maximum sentence’” is not unduly harsh, and the sentences imposed here were not “‘so excessive and unusual and so disproportionate to the offense[s] committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.’” See State v. Grindemann, 2002 WI App 106, ¶¶31-32, 255 Wis. 2d 632, 648 N.W.2d 507 (quoted sources omitted).
Upon our independent review of the record, we have found no other arguable basis for reversing the judgment of conviction. See State v. Allen, 2010 WI 89, ¶¶81-82, 328 Wis. 2d 1, 786 N.W.2d 124. We conclude that any further appellate proceedings would be wholly frivolous within the meaning of Anders and Wis. Stat. Rule 809.32.
Accordingly,
IT IS ORDERED that the judgment of conviction is summarily affirmed pursuant to Wis. Stat. Rule 809.2(1).
IT IS FURTHER ORDERED that Patricia FitzGerald is relieved of any further representation of Larry Schaffer in this matter pursuant to Wis. Stat. Rule 809.32(3).
Diane M. Fremgen
Clerk of Court of Appeals