District I
April 17, 2015
To:
Hon. Jonathan D. Watts
Milwaukee County Courthouse
821 W State Street, Branch 15
Milwaukee, WI 53233
John Barrett, Clerk
Milwaukee County Courthouse
821 W. State Street, Room 114
Milwaukee, WI 53233
Kaitlin A. Lamb
Assistant State Public Defender
735 N. Water Street, Suite #912
Milwaukee, WI 53202
Karen A. Loebel
Assistant District Attorney
Milwaukee County Courthouse
821 W. State Street
Milwaukee, WI 53233
Gregory M. Weber
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Christopher Emmanuel Lovejoy Jr. #482406
Kettle Moraine Corr. Inst.
P.O. Box 282
Plymouth, WI 53073-0282
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Christopher Emmanuel Lovejoy, Jr. (L.C. #2012CF5976) |
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Before Curley, P.J., Kessler and Brennan, JJ.
Christopher Emmanuel Lovejoy, Jr. pled guilty to one
count of being a felon in possession of a firearm, contrary to Wis. Stat. § 941.29(2)(a)
(2011-12).[1] He now appeals from the judgment of
conviction. Lovejoy’s
postconviction/appellate counsel, Assistant State Public Defender Kaitlin A.
Lamb, filed a no-merit report pursuant to Anders v. California, 386 U.S. 738
(1967), and Wis. Stat. Rule
809.32. Lovejoy has not filed a response. We have independently reviewed the record and
the no-merit report as mandated by Anders, and we conclude that there
is no issue of arguable merit that could be pursued on appeal. We therefore summarily affirm.
Lovejoy was charged with one count of possession of a
firearm by a felon. According to the
complaint, in December 2012, a police officer saw Lovejoy and another male
walking in a field clearly marked with “No Trespassing” signs. When the officer and other squads attempted
to catch up to the two, the men separated and fled. The officer saw Lovejoy lean forward to the
ground and pick up what was later found to be a large piece of plywood. Believing that Lovejoy was concealing
something, the officer exited his squad car and ordered Lovejoy to stop
running. Lovejoy complied. When the officer looked under the plywood, he
found a handgun.
The complaint further relayed—and incorporated
supporting documentation to establish—that Lovejoy was previously convicted of
being a felon in possession of a firearm and that the earlier conviction remained
of record and was unreversed.
Lovejoy subsequently sought to suppress statements he
made to police. He argued that the
custodial statements he gave were involuntary because they were the result of
improper police tactics, including deception and false promises. The circuit court denied the motion, and Lovejoy
entered a guilty plea.
The circuit court accepted Lovejoy’s plea and found
him guilty. The case proceeded to
sentencing, and the circuit court sentenced Lovejoy to three years of initial
confinement and two years of extended supervision. The circuit court waived the DNA surcharge.
The no-merit report concludes there would be no
arguable merit to assert that: (1) the circuit court erred when
it denied Lovejoy’s motion to suppress; (2) the plea was not knowingly,
voluntarily, and intelligently entered; or (3) the circuit court erroneously
exercised its sentencing discretion.[2] This court agrees with
postconviction/appellate counsel’s thorough description and analysis of the
potential issues identified in the no-merit report and independently concludes
that pursuing them would lack arguable merit.
In addition to agreeing with postconviction/appellate counsel’s
description and analysis, we will briefly discuss the identified issues.
We begin with the suppression motion. Lovejoy argued that statements he made while
in custody were the result of improper police tactics and, as such, they were
made involuntarily. The essence of his
argument was that he made his statement after being deceived into believing that
his fingerprints would be found on the gun and after being threatened that police
would implicate him if they investigated the gun and found that it was linked
to any homicides. He also claimed that
the police made a deal with him in that they allowed him to make a phone call
if he agreed to give them a timeline on the gun.
When the prosecution wants to use a custodial statement of the defendant, it has the burden of proving, by a preponderance of the evidence, the sufficiency of the Miranda warnings and the knowing and intelligent waiver of Miranda rights.[3] See State v. Agnello, 2004 WI App 2, ¶8, 269 Wis. 2d 260, 674 N.W.2d 594; State v. Santiago, 206 Wis. 2d 3, 12, 556 N.W.2d 687 (1996). The State also has the burden of proving by a preponderance of the evidence that the defendant’s statement was voluntary. See State v. Jiles, 2003 WI 66, ¶26, 262 Wis. 2d 457, 663 N.W.2d 798. We review both determinations de novo because questions of law are presented by the application of the constitutional standards to the historical facts. See State v. Turner, 136 Wis. 2d 333, 344, 401 N.W.2d 827 (1987); Agnello, 269 Wis. 2d 260, ¶8; Santiago, 206 Wis. 2d at 18. We will uphold the circuit court’s findings of historical or evidentiary facts unless they are clearly erroneous. See State v. Henderson, 2001 WI 97, ¶16, 245 Wis. 2d 345, 629 N.W.2d 613.
Here, the circuit court began by clarifying with counsel that Lovejoy’s motion related not to a Miranda violation, but rather went to the voluntariness of Lovejoy’s statements. Then the court discussed its findings based on the testimony presented at the hearing and the transcript of the statements and the audio files.
The court found that the interviewing officer’s testimony was credible and that there were no violations of Lovejoy’s rights in terms of the location, length, and manner of the interview. The court found that no threats or promises were made to Lovejoy and that the officers’ demeanor throughout the interview “was [that of] casual conversation.” The court found that it was not improper police conduct for the officers to confront Lovejoy when they felt he was giving inconsistent statements or not telling the truth. As to comments that it would be bad for Lovejoy if the gun was linked to a homicide, the court found that the gun was stolen in 2008 and that the officers who interviewed Lovejoy were trying to establish a timeframe to determine whether it was connected to other crimes. The court concluded that this line of questioning did not amount to improper police tactics. In making its findings, the court complimented Lovejoy for his educational attainment, which included completion of high school and enrollment in college, and noted Lovejoy’s familiarity with the justice system, police, and the interrogation process.
The circuit court’s findings of fact are not clearly erroneous. When we consider the totality of the circumstances surrounding it, Lovejoy’s statement was voluntary. See State v. Clappes, 136 Wis. 2d 222, 236, 401 N.W.2d 759 (1987) (the voluntariness of a statement is determined by the “totality of the circumstances” test which requires the court to balance the personal characteristics of the defendant against any police pressure). We conclude there is no arguable merit to a claim that the statement should have been suppressed.
We next turn to the guilty plea. There is no arguable basis to allege that Lovejoy’s
guilty plea was not knowingly, intelligently, and voluntarily entered. See
State
v. Bangert, 131 Wis. 2d 246, 260, 389 N.W.2d 12 (1986); Wis. Stat. § 971.08. He completed a plea questionnaire and waiver
of rights form and addendum, which the circuit court referenced during the plea
hearing. See State v. Moederndorfer, 141 Wis. 2d 823, 827-28, 416
N.W.2d 627 (Ct. App. 1987). The circuit
court conducted a plea colloquy addressing Lovejoy’s understanding of the plea
agreement and the charge to which he was pleading guilty, the penalties he
faced, the fact that he could be sentenced up to the maximum, and the
constitutional rights he was waiving by entering his plea. See
§ 971.08; State v. Hampton, 2004 WI 107, ¶38, 274 Wis. 2d 379,
683 N.W.2d 14; Bangert, 131 Wis. 2d at 266-72.
An argument could be made that the circuit court failed to comply with the procedural mandate of Wis. Stat. § 971.08(1)(c), which requires the court, before accepting a guilty plea, to:
Address the defendant personally and advise the
defendant as follows: “If you are not a
citizen of the United States of America, you are advised that a plea of guilty
or no contest for the offense with which you are charged may result in
deportation, the exclusion from admission to this country or the denial of
naturalization, under federal law.”
See State v. Douangmala, 2002 WI 62, ¶21, 253 Wis. 2d 173, 646 N.W.2d 1 (explaining that § 971.08(1)(c) “‘not only commands what the court must personally say to the defendant, but the language is bracketed by quotation marks, an unusual and significant legislative signal that the statute should be followed to the letter’”) (citation omitted). However, to be entitled to plea withdrawal on this basis, Lovejoy would have to show “that the plea is likely to result in [his] deportation, exclusion from admission to this country or denial of naturalization.” See § 971.08(2). There is no indication in the record that Lovejoy can make such a showing.
Beyond the defective deportation warning, the circuit court’s colloquy in conjunction with the plea questionnaire and waiver of rights form and addendum otherwise complied with the requirements of Bangert and Hampton for ensuring that a plea is knowing, intelligent, and voluntary. There would be no arguable merit to a challenge to the plea’s validity and the record discloses no other basis to seek plea withdrawal.
Lastly, we turn to the sentencing. We conclude that there would be no arguable
basis to assert that the circuit court erroneously exercised its sentencing
discretion, see State v. Gallion, 2004 WI
42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197, or that the sentence was
excessive, see Ocanas v. State, 70
Wis. 2d 179, 185, 233 N.W.2d 457 (1975).
At sentencing, the circuit court must consider the
principal objectives of sentencing, including the protection of the community,
the punishment and rehabilitation of the defendant, and deterrence to others, State
v. Ziegler, 2006 WI App 49, ¶23, 289 Wis. 2d 594, 712 N.W.2d 76,
and it must determine which objective or objectives are of greatest importance,
Gallion,
270 Wis. 2d 535, ¶41. In seeking to
fulfill the sentencing objectives, the circuit court should consider a variety of
factors, including the gravity of the offense, the character of the offender,
and the protection of the public, and it may consider several subfactors. State v. Odom, 2006 WI App 145,
¶7, 294 Wis. 2d 844, 720 N.W.2d 695.
The weight to be given to each factor is committed to the circuit court’s
discretion. See Gallion, 270 Wis. 2d 535, ¶41.
In this case, the circuit court applied the standard
sentencing factors and explained their application in accordance with the
framework set forth in Gallion and its progeny. The circuit court found that this was an
aggravated situation given that Lovejoy was on supervision for a prior
conviction of felon in possession of a firearm when he committed the underlying
crime in this case. The circuit court
noted that Lovejoy’s excuse for having the gun was that “it’s a ‘Cowboy’ State”
but concluded “[i]t’s a ‘Cowboy’ State because there[ are] too many people
running around with firearms that have felony convictions on their records,
kind of like you.” The circuit court
reflected on Lovejoy’s expressed goal of opening an animal shelter, but
nevertheless found that he made a serious mistake and that consequences were
required. The circuit court found that
ordering Lovejoy to serve a concurrent sentence to the revocation sentence he
was serving at the time would unduly depreciate the repetitive nature of the
offense. Consequently, the circuit court
ordered a consecutive sentence of three years of initial confinement and two
years of extended supervision.
Our review of the sentencing transcript leads us to
conclude that there would be no merit to challenge the circuit court’s
compliance with Gallion. Further, there
would be no merit to assert that the sentence was excessive. See
Ocanas, 70
Wis. 2d at 185.
Our independent review of the record reveals no other
potential issues of arguable merit.
Upon the foregoing, therefore,
IT IS ORDERED that the judgment is summarily affirmed. See
Wis. Stat. Rule 809.21.
IT IS FURTHER ORDERED that Assistant State Public Defender Kaitlin A. Lamb is relieved of further representation of Lovejoy in this matter. See Wis. Stat. Rule 809.32(3).
Diane M. Fremgen
Clerk of Court of Appeals