District II
October 1, 2014
To:
Hon. Mark T. Slate
Circuit Court Judge
P.O. Box 3188
Green Lake, WI 54941
Susan J. Krueger
Clerk of Circuit Court
Green Lake County Courthouse
P.O. Box 3188
Green Lake, WI 54941
Jeffrey Mann
Mann Law Office, LLC
404 N. Main St., Ste. 102
Oshkosh, WI 54901-4954
Kyle J. Sargent
District Attorney
P.O. Box 3188
Green Lake, WI 54941-3188
Gregory M. Weber
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Jorge A. Lopez, #533805
Green Bay Corr. Inst.
P.O. Box 19033
Green Bay, WI 54307-9033
You are hereby notified that the Court has entered the following opinion and order:
|
|
|
|
|
|
|
State of Wisconsin v. Jorge A. Lopez (L.C. #2012CF31) |
|
|
|
|
Before Neubauer, P.J., Reilly and Gundrum, JJ.
Jorge A. Lopez appeals from a
judgment convicting him upon pleas of no contest of two counts of third-degree
sexual assault in violation of Wis. Stat.
§ 940.225(3) (2011-12), both as a repeater.[1] Lopez’s appellate counsel has filed a
no-merit report pursuant to Wis. Stat.
Rule 809.32 and Anders v.
A female staying at the same motel as Lopez reported to police that Lopez invited her to his room to smoke “a joint” and then had sex with her against her will. The State charged him with second-degree sexual assault, third-degree sexual assault, false imprisonment, disorderly conduct, and two counts of obstructing an officer. Pursuant to a plea agreement, Lopez entered no-contest pleas to two counts of third-degree sexual assault. The remaining counts were dismissed and read in. The trial court sentenced Lopez to a total of ten years’ initial confinement and ten years’ extended supervision, and ordered him to provide a DNA sample and pay the $250 surcharge, see Wis. Stat. § 973.046(1r), and to pay $4,113.36 in restitution to the victim, who required ambulance transport and hospitalization. This no-merit appeal followed.
The report first considers whether Lopez could withdraw his plea as not knowingly and voluntarily entered. We agree 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). Here, the
trial court followed Wis. Stat. §
971.08 to ensure that Lopez’s plea was knowingly, voluntarily, and
intelligently entered by ascertaining that he understood the essential elements
of the charge to which he was pleading, the potential punishment for the
charge, and the constitutional rights he was giving up. See State
v. Bangert, 131 Wis. 2d 246, 260-62, 389 N.W.2d 12 (1986); State v. Hampton, 2004 WI
107, ¶24, 274 Wis. 2d 379, 683 N.W.2d 14. Besides the thorough colloquy, the court properly looked to the
plea questionnaire/waiver of rights form Lopez signed reflecting his understanding of
the elements, the potential penalties, and the rights he agreed to waive,
including the potential for deportation or the denial of naturalization. See State v. Hoppe, 2009 WI
41, ¶¶30-32, 317 Wis. 2d 161, 765 N.W.2d 794. Lopez also acknowledged that his
counsel advised him of the potential for deportation. See
8 U.S.C. § 1227(a)(2) (2012). Lopez
would be unable to make a prima facie case that the court did not comply with
the procedural requirements of § 971.08 and that he did not understand or know
the information that should have been provided.
See Bangert, 131
Wis. 2d at 274. A challenge to the plea
would have no merit.
The no-merit report next considers whether any arguable issue could arise because the amended information alleged that Lopez committed the assaults “on or about April 9, 2012,” and the police reports indicate the assaults were reported on April 8, 2012. Lopez does not claim an alibi, only that the sex was consensual. The date discrepancy could present no issue of merit.
The final issue the report examines is whether Lopez’s appointed counsel, Attorney Jeffrey Haase, had a conflict of interest. Haase ran for Green Lake county district attorney but lost in the primary. His involvement in the race ended in mid-August 2012; he was not appointed to represent Lopez until January 2013. No issue of arguable merit could arise.
We independently consider
whether an arguable issue exists in regard to the exercise of sentencing
discretion and whether the sentence is excessive.[2] Sentencing is left to the discretion of the
trial 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. The court fully addressed
the primary sentencing factors—the gravity of the offense, the character
of the offender, and the need to protect the public. State v. Spears, 227 Wis. 2d 495,
507, 596 N.W.2d 375 (1999). It gave the
greatest weight
to Lopez’s character. See Cunningham v. State, 76 Wis. 2d 277,
282, 251 N.W.2d 65 (1977). The court provided a
“rational and explainable basis” for the sentence it imposed, satisfying this
court that discretion in fact was exercised. See
Gallion, 270 Wis. 2d 535, ¶¶39, 76
(citation omitted).
The court noted the “very serious” nature of the
crimes against someone who happened to be in the wrong place at the wrong time,
the need to send a message to the general public that such offenses deserve
consequences, and that his poor character was amply shown by the read-ins, his
lengthy multi-state criminal history, and post-arrest acts such as contending
his lawyer gave him a razor blade found with him in the jail and picking up new
disorderly conduct charges for jail misbehavior. Considering that he faced twenty-eight
years plus a $50,000 fine, and further considering the victim’s injuries and
the four read-in offenses, Lopez’s twenty-year sentence cannot be said to be so
excessive or unusual as to shock public sentiment. See Ocanas v. State, 70
Wis. 2d 179, 185, 233 N.W.2d 457 (1975); see also State v. Grindemann, 2002 WI App 106, ¶31, 255
Lopez’s response asserts that the consensual nature of the sexual encounter is shown by the absence of bruises or scratches, torn clothing, or reports from other motel tenants of screams or calls for help. He also noted that police did not come to his motel room until forty-five minutes after the alleged assault and “when a woman get[]s rape[d,] she immediately call[]s 911 or tell[]s family members.”
A no-contest plea admits all facts
alleged in the complaint. State
v. Rachwal, 159
Wis. 2d 494, 506, 465 N.W.2d 490 (1991). Lopez stipulated to using the complaint as a
factual basis for the allegations. A
properly accepted plea of guilty or no-contest waives any later-presented
defense to the charge. See Peters v. State, 50 Wis. 2d 682, 688,
184 N.W.2d 826 (1971). Further, the
complainant did suffer injuries. She
bled profusely from a vaginal laceration, required ambulance transport, and was
hospitalized. The officers’ arrival
forty-five minutes after the victim left Lopez’s room does not establish that
she did not immediately summon help.
Regardless, physical injuries, evidence of resisting, or making a
contemporaneous report are not necessary to prove the elements of third-degree
sexual assault. See Wis. Stat. § 940.225(3).
Although Lopez assured the court during the plea colloquy that his no-contest pleas were not induced by threats or promises, he asserts here that the DA and defense counsel “harassed and pressured” him to plead no contest by reducing the second-degree sexual assault charge to third-degree. He suggests that he agreed in part as he did not think he could get a fair trial in Green Lake county because he is Mexican, has dark skin, only recently came to the area, and the local paper created bias against him by falsely reporting that the alleged victim was underage, thus portraying him as “a monster.” Deciding whether to take a chance at trial no doubt was difficult but Lopez shows nothing to suggest coercion.
Lopez next contends he was
entitled to an expert witness and to have a psychological examination, both at
State expense. He does not flesh out or
cite authority for either proposition. Expert
assistance is not an absolute if not essential to his criminal defense. See
Polk
Cnty. v. State Pub. Defender, 179 Wis. 2d 312, 318, 507 N.W.2d 576 (Ct.
App. 1993), aff’d, 188
Wis. 2d 665, 524 N.W.2d 389 (1994). He
does not indicate whether he sought authorization from the state public
defender. See Wis. Stat. § 977.05(4r). In any event, his no-contest plea waived these
issues. See State v. Lasky, 2002 WI App 126,
¶11, 254
Our 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 Jeffrey A. Mann is relieved of further representing Lopez in this matter.
Diane M. Fremgen
Clerk of Court of Appeals