District I
November 13, 2014
To:
Hon. Stephanie Rothstein
Circuit Court Judge
Criminal Justice Facility
949 North 9th Street
Milwaukee, WI 53233
John Barrett
Clerk of Circuit Court
Room 114
821 W. State Street
Milwaukee, WI 53233
Dustin C. Haskell
Assistant State Public Defender
735 N. Water St., Rm. 912
Milwaukee, WI 53203
Karen A. Loebel
Asst. District Attorney
821 W. State St.
Milwaukee, WI 53233
Gregory M. Weber
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Jose H. Rodriguez-Morales 607939
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. Jose H. Rodriguez-Morales (L.C. #2013CF1949) |
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Before Curley, P.J., Fine and
Kessler, JJ.
Jose H. Rodriguez-Morales pled guilty to one count of
first-degree sexual assault of a child. See Wis.
Stat. § 948.02(1)(e) (2011-12).[1] The trial court imposed a seventeen-year term
of imprisonment, bifurcated as ten years of initial confinement and seven years
of extended
supervision. The trial court also ordered
Rodriguez-Morales to pay a $250 deoxyribonucleic acid surcharge.
The state public defender appointed Attorney Dustin C.
Haskell to represent Rodriguez-Morales in postconviction and appellate
proceedings. Attorney Haskell filed a
no-merit report, concluding that further postconviction and appellate proceedings
would lack arguable merit. See
Anders v. California, 386 U.S. 738 (1967), and Wis. Stat. Rule 809.32.
Rodriguez-Morales did not file a response. We have considered the no-merit report, and
we have independently reviewed the record.
We conclude that no arguably meritorious issues exist for appeal, and we
summarily affirm. See Wis. Stat. Rule 809.21.
According to the criminal complaint, M.M.B., born on
May 28, 2002, told police that, when she was ten years old, her mother’s
boyfriend, Rodriguez-Morales, ‘“tr[ied] to have sex’ with her” on multiple
occasions between May 28, 2012, and April 5, 2013.[2] M.M.B. went on to describe an incident when
she was alone with Rodriguez-Morales and he took her to his bedroom, locked the
door, and put his penis on her body near her buttocks. The complaint further alleges that M.M.B.’s
mother told police she examined Rodriguez-Morales’s telephone and discovered a
video of Rodriguez-Morales rubbing his penis on M.M.B.’s body. Additionally, the complaint alleges that
police interviewed Rodriguez-Morales, and he admitted lying naked on top of M.M.B.
and making a video of the activity.
The State charged Rodriguez-Morales with two counts of
first-degree sexual assault of a child who had not reached the age of thirteen
years old, and one count of sexual exploitation of a child. Rodriguez-Morales quickly decided to resolve
the charges with a plea bargain.
We first consider whether Rodriguez-Morales could
pursue a meritorious challenge to his guilty plea. At the outset of the plea proceeding, the
trial court noted that Rodriguez-Morales appeared in court with a Spanish-language
interpreter. The trial court established
that Rodriguez-Morales understands some English and that, in addition, his
trial counsel speaks Spanish.[3] Rodriguez-Morales confirmed that he did not
have any difficulty communicating with his lawyer. The State then described the terms of the
parties’ plea bargain, explaining that Rodriguez-Morales would plead guilty to
one count of first-degree sexual assault of a child, and the State would
recommend “substantial confinement and moderate extended supervision, leaving
the interpretation of that language up to the court.” Additionally, the State would move to dismiss
and read in the two other counts. Trial
counsel confirmed that the State correctly described the plea bargain.
The record includes a signed guilty plea questionnaire
and waiver of rights form with text in both English and Spanish. The form reflects that Rodriguez-Morales
understood the charge he faced, the constitutional rights he waived by pleading
guilty, and the penalty that the trial court could impose. A signed addendum attached to the form
reflects Rodriguez-Morales’s acknowledgment that by pleading guilty he would
give up his rights to raise defenses, to challenge the validity of his arrest,
and to seek suppression of evidence against him. Rodriguez-Morales confirmed that he reviewed
the form and addendum with his trial counsel and that he understood the documents.
The trial court explained to Rodriguez-Morales that he
faced a sixty-year term of imprisonment upon conviction. See
Wis. Stat. §§ 948.02(1)(e),
939.50(3)(b). Rodriguez-Morales said
that he understood. The trial court told
Rodriguez-Morales that it was not bound by the terms of the plea bargain and
that he therefore might receive the maximum sentence. He said that he understood. He assured the trial court that, outside of
the terms of the plea bargain, he had not been promised anything to induce his
guilty plea and that he had not been threatened.
The trial court explained to Rodriguez-Morales that by
pleading guilty he would give up the constitutional rights listed on the guilty
plea questionnaire, and the trial court reviewed those rights. Rodriguez-Morales told the trial court that
he understood. The trial court further
explained that, by pleading guilty, he would give up the opportunity to raise
defenses and to seek suppression of his statement and other evidence. He said that he understood.
The trial court told Rodriguez-Morales that, if he was
not a citizen of the United States of America, he “could be deported for this
offense or excluded from coming back into the country and any request that [he
had made] to become a citizen could be denied.”
Cf. Wis. Stat. § 971.08(1)(c). Rodriguez-Morales said that he
understood. Although the trial court did
not caution him about the risks described in § 971.08(1)(c) using the
precise words required by the statute, minor deviations from the statutory
language do not undermine the validity of the plea. State v. Mursal, 2013 WI App 125,
¶20, 351 Wis. 2d 180, 839 N.W.2d 173.
A trial “court must establish that a defendant
understands every element of the charge[] to which he pleads.” State v. Brown, 2006 WI 100, ¶58,
293 Wis. 2d 594, 716 N.W.2d 906.
Here, the elements are described on the guilty plea questionnaire and
waiver of rights form that Rodriguez-Morales signed, and the trial court
summarized the elements during the plea colloquy. Additionally, at the trial court’s request,
the State reviewed the elements in detail on the record, and Rodriguez-Morales
told the trial court he understood that the State would have to prove the
elements before he could be found guilty.
Before accepting a guilty plea, the trial court must
“‘make such inquiry as satisfies it that the defendant in fact committed the
crime charged.’” See State v. Black, 2001
WI 31, ¶11, 242 Wis. 2d 126, 624 N.W.2d 363 (citation and one set of
brackets omitted). Here, the State summarized
on the record the allegations supporting the charge of first-degree sexual
assault of a child, and Rodriguez-Morales admitted that those allegations were
true and correct. The trial court
properly found a factual basis for his guilty plea.
The record reflects that Rodriguez-Morales entered his
guilty plea knowingly, intelligently, and voluntarily. See
Wis. Stat. § 971.08 and State
v. Bangert, 131 Wis. 2d 246, 266-72, 389 N.W.2d 12 (1986); see also State v. Hoppe, 2009 WI
41, ¶32, 317 Wis. 2d 161, 765 N.W.2d 794 (completed plea questionnaire and
waiver of rights form helps to ensure a knowing, intelligent, and voluntary
plea). The record reflects no basis for
an arguably meritorious challenge to the validity of the plea.
We next consider whether Rodriguez-Morales could
pursue an arguably meritorious challenge to his sentence. Sentencing lies within the trial court’s
discretion, and our review is limited to determining if the trial court
erroneously exercised its discretion. State
v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197. “When the exercise of discretion has been
demonstrated, we follow a consistent and strong policy against interference
with the discretion of the trial court in passing sentence.” State v. Stenzel, 2004 WI App 181,
¶7, 276 Wis. 2d 224, 688 N.W.2d 20.
The trial court must consider the primary sentencing
factors of “the gravity of the offense, the character of the defendant, and the
need to protect the public.” State
v. Ziegler, 2006 WI App 49, ¶23, 289 Wis. 2d 594, 712 N.W.2d 76. The trial court may also consider a wide range
of other factors concerning the defendant, the offense, and the community. See
id. The trial court has discretion to determine
both the factors that it believes are relevant in imposing sentence and the
weight to assign to each relevant factor.
Stenzel, 276 Wis. 2d 224, ¶16. Additionally, the trial court must “specify
the objectives of the sentence on the record.
These objectives include, but are not limited to, the protection of the
community, punishment of the defendant, rehabilitation of the defendant, and
deterrence to others.” Gallion, 270 Wis. 2d 535, ¶40.
The record here reflects an appropriate exercise of sentencing discretion. The trial court considered the gravity of the offense, explaining that the sexual assault would have a life-long impact on the victim and on her family. Turning to the protection of the public, the trial court concluded that Rodriguez-Morales was dangerous, stating that he had held a position of trust in the victim’s family and that he had betrayed that trust on multiple occasions. The trial court discussed Rodriguez-Morales’s character, acknowledging that he had no prior criminal record, that he had a substantial history of employment, and that he had industriously supported his family. The trial court determined, however, that these positive attributes did not outweigh the gravity of the harm that he caused by sexually assaulting a ten-year-old child.
The trial court indicated that deterrence and rehabilitation were the primary sentencing goals. The trial court explained that the sentence must be sufficient to “keep [Rodriguez-Morales] from committing these crimes in the future” and to “keep others from this type of crime.” The trial court also explained that the sentence “took into account his treatment needs” and was intended to help him “learn to never do these kind[s] of things again.”
The trial court explained the factors that it
considered when imposing sentence. The
factors were proper and relevant.
Moreover, we agree with appellate counsel’s conclusion that the sentence
was not unduly harsh or excessive. A
sentence is unduly harsh “‘only where the sentence is 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.’” See State v. Grindemann, 2002 WI App
106, ¶31, 255 Wis. 2d 632, 648 N.W.2d 507 (citation omitted). The sentence imposed here was well within the
statutory maximum allowed by law. Such a
sentence is presumptively not unduly harsh.
See id., ¶32. We cannot say that the sentence imposed in
this case is disproportionate or shocking.
We conclude that a challenge to the trial court’s exercise of sentencing
discretion would be frivolous within the meaning of Anders.
We also agree with appellate counsel that a challenge
to the deoxyribonucleic acid surcharge imposed at sentencing would lack
arguable merit. Pursuant to Wis. Stat. § 973.046(1r), the
surcharge is mandatory for the offense in his case. Similarly, a challenge to the trial court’s
orders denying Rodriguez-Morales eligibility for the challenge incarceration
program and the Wisconsin substance abuse program would lack arguable merit,
because he is statutorily ineligible to participate in those programs. See
Wis. Stat. §§ 302.045(2)(c),
302.05(3)(a)1.
Based on our independent review of the record, no
other issues warrant discussion. We
conclude that any further proceedings would be wholly frivolous within the
meaning of Anders and Wis.
Stat. Rule 809.32.
IT IS ORDERED that the judgment of conviction is
summarily affirmed. See Wis. Stat. Rule
809.21.
IT IS FURTHER ORDERED that Attorney Dustin C. Haskell is relieved of any further representation of Jose H. Rodriguez-Morales on appeal. See Wis. Stat. Rule 809.32(3).
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 criminal complaint identifies the child victim as both “MMB” and “MBC.” The record reflects that both abbreviations are accurate and describe the same victim; the State explained at the plea hearing that “M” is the victim’s first and middle initial, and that her last name is sometimes hyphenated as “B-C.” Rodriguez-Morales agreed. For ease of reference, we use the initials “M.M.B.” to identify the victim.
[3] Proceedings prior to the guilty plea similarly included explanations on the record that Rodriguez-Morales’s trial counsel was fluent in Spanish.