District II
December 23, 2014
To:
Hon. S. Michael Wilk
Circuit Court Judge
Kenosha County Courthouse
912 56th Street
Kenosha, WI 53140
Rebecca Matoska-Mentink
Clerk of Circuit Court
Kenosha County Courthouse
912 56th Street
Kenosha, WI 53140
Randall E. Paulson
Asst. State Public Defender
735 N. Water St., #912
Milwaukee, WI 53202-4116
Gregory M. Weber
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Robert D. Zapf
District Attorney
Molinaro Bldg
912 56th Street
Kenosha, WI 53140-3747
Brenden S. Paquette
9427 67th St
Kenosha, WI 53142
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Brenden S. Paquette (L.C. # 2013CF622) |
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Before Brown, C.J., Reilly and Gundrum, JJ.
Brenden S. Paquette appeals from
a judgment of conviction for substantial battery by use of a dangerous weapon, for which he was sentenced
to serve probation for fifteen months. Paquette’s
appellate counsel has filed a no-merit report pursuant to Wis. Stat.
Rule 809.32 (2011-12),[1]
and Anders
v.
Paquette, age twenty-two, was charged with four crimes as a result of two separate incidents involving “road rage.” He is convicted of the charge arising when he brandished a knife when confronted by another driver and slashed the arm of the other driver causing a wound requiring two to three staples to close. With his guilty plea to the substantial battery by use of a dangerous weapon charge, the other three misdemeanor charges were dismissed as read-ins. The prosecution agreed to recommend probation and did so at sentencing. In addition to the fifteen months of probation, Paquette was ordered to pay $2,955.75 in restitution. Paquette was also required provide a DNA sample and pay the surcharge to facilitate identification of Paquette by law enforcement in the future. The sentencing court rejected Paquette’s request that the conviction be expunged upon successful completion of probation.
The no-merit report addresses the potential issues of whether Paquette’s plea was freely, voluntarily and knowingly entered and whether the sentence, including the denial of the possibility of expungement, was the result of an erroneous exercise of discretion. This court is satisfied that the no-merit report properly analyzes the issues it raises as without merit, and this court will not discuss them further.[2] By his guilty plea, Paquette forfeited the right to raise nonjurisdictional defects and defenses, including claimed violations of constitutional rights. State v. Kelty, 2006 WI 101, ¶18 & n.11, 294 Wis. 2d 62, 716 N.W.2d 886.
Not addressed by the no-merit report is the reason given for imposing the DNA surcharge. State v. Simonis, 2012 WI App 84, ¶1, 343 Wis. 2d 663, 819 N.W.2d 328, holds that a circuit court may not justify the DNA surcharge because a defendant might, in the future, “commit a crime that would generate costs for DNA analysis.” Here the sentencing court imposed the surcharge to facilitate identification in the event Paquette committed future crimes. The stated reason may violate the Simonis holding. However, to challenge the surcharge Paquette would have to establish that imposition of the surcharge was unreasonable. State v. Ziller, 2011 WI App 164, ¶12, 338 Wis. 2d 151, 807 N.W.2d 241. This was Paquette’s first felony conviction and therefore he was required to give a DNA sample pursuant to Wis. Stat. § 973.047(1f). That certain costs are incurred in obtaining the sample is an acceptable reason for imposing the surcharge. See State v. Long, 2011 WI App 146, ¶8, 337 Wis. 2d 648, 807 N.W.2d 12. “What is obvious need not be repeated.” Ziller, 338 Wis. 2d 151, ¶13. There is no arguable merit to a claim that it was unreasonable to impose the DNA surcharge at sentencing.
Our review of the record discloses no other potential issues for appeal. Accordingly, this court accepts the no-merit report, affirms the conviction and discharges appellate counsel of the obligation to represent Paquette further in this appeal.
Upon the foregoing reasons,
IT IS ORDERED that the judgment of conviction is summarily affirmed. See Wis. Stat. Rule 809.21.
IT IS FURTHER ORDERED that Attorney Randall E. Paulson is relieved from further representing Brenden S. Paquette in this 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 plea questionnaire stated the wrong maximum penalty Paquette faced. It stated the maximum was five and one-half years. The maximum, due to the dangerous weapon enhancer, was eight and one-half years. During its plea colloquy with Paquette, the circuit court correctly recited the eight and one-half year maximum.