District I
May 20, 2015
To:
Hon. David L. Borowski
Circuit Court Judge
Milwaukee County Courthouse
901 N. 9th St.
Milwaukee, WI 53233
John Barrett
Clerk of Circuit Court
Room 114
821 W. State Street
Milwaukee, WI 53233
Paul G. Bonneson
Law Offices of Paul G. Bonneson
631 N. Mayfair Rd.
Wauwatosa, WI 53226
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
Carlos D. Lindsey 524927
Wisconsin Secure Program Facility
P.O. Box 9900
Boscobel, WI 53805-9900
Andrea Taylor Cornwall
First Asst. State Public Defender
735 N. Water St., #912
Milwaukee, WI 53203
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Carlos D. Lindsey (L.C. #2010CF4876) |
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Before Curley,
P.J., Kessler and
Brennan, JJ.
A jury found Carlos D. Lindsey guilty of five counts
of first-degree sexual assault of a child.
The circuit court imposed an aggregate twenty-four year term of
imprisonment bifurcated as sixteen years of initial confinement and eight years
of extended supervision. The circuit
court also ordered Lindsey to pay a DNA surcharge. Lindsey appeals.
Lindsey’s appointed postconviction and appellate counsel,
Attorney Paul G. Bonneson, filed a no-merit report on Lindsey’s behalf in
August 2013. See Wis. Stat. Rule 809.32
(2013-14).[1] In the report, Attorney Bonneson discussed
the sufficiency of the evidence, the circuit court’s exercise of sentencing
discretion, Lindsey’s pro se motion
to vacate the DNA surcharge, and Lindsey’s belief that the jury selection
process was constitutionally flawed.
Thereafter, we granted a series of extensions to permit Lindsey time to
prepare a response to the no-merit report.
Just before the last deadline expired, Lindsey filed a document in the
supreme court that it construed as a petition for review. That petition was denied as premature, and
the matter was submitted to this court for resolution in June 2014 without a
response from Lindsey.
Following a preliminary review of the record and the
no-merit report, we asked Attorney Bonneson to file a supplemental no-merit
report to address jury selection.
Specifically, we noted his advisement in the no-merit report that Lindsey
believed the prosecutor had used peremptory strikes to remove jurors based on
their race in violation of Batson v. Kentucky, 476 U.S. 79
(1986). We further noted that, although Attorney
Bonneson described the record as lacking anything to support Lindsey’s concern,
Attorney Bonneson did not indicate he took any steps beyond record review to
explore Lindsey’s contention. We asked Attorney
Bonneson to tell us whether anything
outside the record supported Lindsey’s claim that trial counsel should have
objected to the jury selection process. After
receiving a number of extensions from this court, Attorney Bonneson filed a
supplemental report in late December 2014, stating that Lindsey had not
responded to requests for information and thus had provided no basis for further
pursuit of the Batson issue.
On January 2, 2015, Lindsey submitted a document
titled “statement of merits.” In the
document, Lindsey raised several allegations of trial counsel’s ineffectiveness
and alleged a jury instruction error, but he did not complain about jury
selection or suggest any defect in that process. We accepted Lindsey’s January 2, 2015
submission as a response to the supplemental no-merit report, and we provided a
copy to appellate counsel. Counsel
elected not to respond.
We view this matter as ready for disposition. We have independently considered the record,
counsel’s no-merit reports, and Lindsey’s objections to the reports.[2] We conclude that no arguably meritorious
issues exist for an appeal. We summarily
affirm. See Wis. Stat. Rule 809.21.
In a criminal complaint filed in September 2010, the
State alleged that Lindsey sexually assaulted three boys, namely, JDM, born
March 9, 2001, CDM, born April 30, 2002, and SEJ, born September 25, 2001. The State indicated each victim was a
grandson of Cheryl M. and that she was romantically involved with Lindsey at
the time of the assaults. Subsequently
the State filed an information charging:
(1) two counts of sexually assaulting JDM between the dates of June 1,
2010, and September 19, 2010; (2) one count of sexually assaulting JDM between
the dates of August 1, 2010, and September 19, 2010; (3) two counts of sexually
assaulting CDM between the dates of December 1, 2009, and September 19, 2010;
and (4) one count of sexually assaulting SEJ between the dates of December 1,
2009, and September 19, 2010, all in violation of Wis. Stat. § 948.02(1)(e) (2009-10). Lindsey pled not guilty to the charges. On August 8, 2011, the matter proceeded to a
jury trial on six counts of first-degree sexual assault of a child who had not
reached the age of thirteen years.
While the trial was under way, the State moved to
dismiss one of the two charges involving CDM.
The State also moved to file an amended information alleging that
Lindsey committed each of the remaining five sexual assaults on or after
December 24, 2009. Lindsey did not
oppose the State’s motions, and the State filed an amended information alleging
five counts of first-degree sexual assault of a child under thirteen years of
age during the period from December 24, 2009, until September 19, 2010. The jury returned five guilty verdicts.
We first consider whether sufficient evidence supports
the jury’s verdicts. Before the jury
could find Lindsey guilty of any of the five charges, the State needed to prove
beyond a reasonable doubt that: (1) Lindsey
had sexual contact with the victim; and (2) the victim was under the age of
thirteen years at the time of the sexual contact. See
Wis JI—Criminal 2102E; Wis. Stat. § 948.02(1)(e) (2009-10).
The State presented to the jury audiovisual recordings
of the forensic interviews police conducted with JDM, CDM, and SEJ. See Wis. Stat. § 908.08(3). Each child testified in person immediately
after presentation of his recorded interview.
See § 908.08(5)(a).
JDM told the jury that he was ten years old. He said that his grandmother, Cheryl M., had
a former boyfriend named Carlos Lindsey, and JDM identified Lindsey in the
courtroom. JDM then described three
separate incidents in which Lindsey had sexual contact with JDM while Lindsey
was living with Cheryl M. On one occasion,
towards the end of the previous school year, Lindsey rubbed his penis against
JDM while he was lying face down in the back room of his grandmother’s
house. On a second occasion, when JDM
and Lindsey were in a garage, Lindsey rubbed his penis against JDM’s buttocks,
which JDM called his “booty.” On a third
occasion, when JDM was watching TV in his grandmother’s bedroom, Lindsey put
his penis into JDM’s “booty.” JDM said
each of the three incidents occurred after his ninth birthday in March.
During cross-examination, JDM said he had seen Cheryl
M. arguing with Lindsey. JDM admitted
that he did not like Lindsey when he argued with Cheryl M.
CDM said he was eight years old. He said his grandmother Cheryl had a friend
named Carlos, and CDM identified Lindsey as that friend. CDM used a doll to show the jury a man’s
“private part.” He went on to testify
that, on an occasion when he was at his grandmother’s house and the weather was
warm, Lindsey put his bare private part into CDM’s “butt.” During
direct testimony, CDM denied saying some of the things he is heard to
say during the forensic interview. On
cross-examination, he acknowledged that he was angry with Lindsey because he
threw keys at CDM and argued with CDM’s grandmother.
SEJ testified that he was nine years old. He said his grandmother, Cheryl M., had a
friend named Carlos Lindsey, and SEJ identified Lindsey in the courtroom. SEJ described an incident when Lindsey took
SEJ into a bedroom in his grandmother’s house.
There, Lindsey rubbed his penis, which SEJ called a “peanut,” against
the rear of SEJ. On cross-examination,
SEJ said he had seen Lindsey hit Cheryl M., and SEJ said he “didn’t like that.”
Kejuana J., JDM’s mother, described how JDM’s
accusations against Lindsey came to light.
She said that, on September 19, 2010, she was walking with JDM when he
confided that Lindsey “was doing nasty stuff ... humping on me.” Kejuana J. said she immediately told Sheena
M., the mother of CDM and SEJ, about the things JDM had said. Kejuana J. then took JDM to the hospital,
where she also spoke to police. On cross
examination, Kejuana J. admitted that JDM did not complain about Lindsey at any
time before September 19, 2010, even though Lindsey was present on several
occasions earlier in 2010 when JDM visited his grandmother at her home and when
he attended the daycare center she operated.
Amanda Didier testified as an expert witness for the
State regarding the dynamics of child sexual abuse and its disclosure. She said she had a master’s degree in
counselling and is a board-certified counsellor with an area of specialization
in child abuse matters. After describing
her education and experience, she explained to the jury that children
frequently cannot provide an exact date or time for their experiences. She also explained that children often do not
relate events in chronological order and tend to disclose what is important to
the child making the disclosure. On
cross examination, she acknowledged that a child may be unable to provide exact
details and may modify the story he or she tells because the child is being
dishonest.
Lindsey testified on his own behalf. He told the jury that he was nineteen years
old and that he did not “mess with kids.
[He was] a kid [him]self.” He
said he had a romantic relationship with Cheryl M. and moved in with her soon
after they met on Christmas Eve 2009.
Lindsey admitted that on occasion he was physically aggressive with
Cheryl M. and that her grandchildren saw some of this aggression. He suggested that the children’s observations
led to false accusations against him.
Lindsey maintained that he never spent time alone with the children
because Cheryl M. had warned him that her family was “dirty.” Additionally, the parties stipulated that
Lindsey was in custody on an unrelated matter during certain specified periods
during the spring and summer of 2010.
When considering a challenge to the sufficiency of the
evidence, we apply a highly deferential standard. We may not substitute our judgment for that
of the jury unless the evidence, viewed most favorably to the State and the
convictions, is so lacking in probative value and force that no reasonable jury
could have found guilt beyond a reasonable doubt. See State
v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990). This court will uphold the verdicts if any
possibility exists that the jury could have drawn the inference of guilt from
the evidence. Id. When the record
contains facts that support more than one inference, this court must accept the
inference drawn by the jury unless the evidence on which that inference is
based is incredible as a matter of law. Id.
at 506-07.
The State presented ample evidence to support the
allegations of sexual assault. A claim
that the evidence was insufficient would be frivolous within the meaning of Anders.
We next consider whether the record shows that Lindsey
knowingly and voluntarily waived his right to remain silent. Appellate counsel did not discuss this issue.
The right not to testify is
fundamental. State v. Denson, 2011 WI
70, ¶55, 335 Wis. 2d 681, 799 N.W.2d 851.
Our supreme court recommends, but does not require, a colloquy on the
record to ensure that a defendant who elects to testify has knowingly and
voluntarily waived the right not to testify.
See id., ¶¶66-67. In this case, the circuit court conducted a
colloquy with Lindsey and established that he wanted to testify, understood his
right not to testify, had discussed the matter with his counsel, and that no
one threatened him or promised him anything to induce him to testify. The colloquy fully complies with the supreme
court’s recommendations and demonstrates Lindsey’s knowing, intelligent and
voluntary decision to waive his right to remain silent and to testify on his
own behalf. See id., ¶¶60-61, 67.
Further pursuit of this issue would lack arguable merit.
We next
consider whether Lindsey could pursue an arguably meritorious claim that the
circuit court erred when it overruled his objection to admitting as evidence
the forensic interview with JDM.
Appellate counsel did not discuss this issue. We independently conclude that no basis
exists for an appellate challenge to admitting any of the forensic interviews
with the three children. Each child
testified at trial, and each child was younger than twelve years old when he
testified. Under these circumstances,
the circuit court is required to admit the recorded interviews. See
Wis. Stat. § 908.08(1) & (3)(a)1.;
see also State v. James, 2005 WI App 188, ¶¶9-12, 20-25, 285 Wis. 2d
783, 703 N.W.2d 727 (circuit court must admit videotaped statement that
satisfies § 908.08(3)).
We have also considered whether the record reveals
errors that trial counsel did not preserve.
We must consider any such potential postconviction challenge in an
ineffective-assistance-of-counsel context. See State
v. Carprue, 2004 WI 111, ¶47, 274 Wis. 2d 656, 683 N.W.2d 31 (in
the absence of an objection at trial, we address issues under the
ineffective-assistance-of-counsel rubric). Appellate counsel did not consider any such
potential claims, but doing so is appropriate.
See State ex rel. Panama v. Hepp,
2008 WI App 146, ¶27, 314 Wis. 2d 112, 758 N.W.2d 806 (no-merit proceeding
permits examination of whether waived issue may support a claim of ineffective assistance
of trial counsel).
We assess claims of ineffective assistance of counsel
under the two-prong test described in Strickland v. Washington, 466 U.S.
668, 687 (1984). To prevail, the
defendant must show that his or her attorney’s performance was deficient and
that the deficiency prejudiced the defense.
Id. Whether the lawyer’s
performance was deficient and whether the deficiency was prejudicial are
questions of law that we review de novo. State v. Johnson, 153 Wis. 2d 121,
128, 449 N.W.2d 845 (1990). If a
defendant fails to satisfy one component of the analysis, a reviewing court
need not address the other. Strickland,
466 U.S. at 697.
Lindsey could not pursue an arguably meritorious claim
that trial counsel should have objected on hearsay grounds to Kejuana J.’s
testimony describing JDM’s disclosure of sexual abuse. Hearsay is an out-of-court statement offered
to prove the truth of the matter asserted.
See Wis. Stat. § 908.01(3).
In this case, however, the State offered Kejuana J.’s testimony about
JDM’s disclosures not to prove their truth but to show how JDM’s accusations
against Lindsey came to light and to show the steps Kejuana J. took in response.[3] “‘The hearsay rule does not prevent a witness
from testifying as to what he heard; it is rather a restriction on the proof of
fact through extrajudicial statements.’” State v. Curbello–Rodriguez, 119 Wis. 2d
414, 427, 351 N.W.2d 758 (Ct. App. 1984) (citation omitted).
For similar reasons, we conclude that the State did
not offer hearsay testimony from Sheena M., when she described CDM’s and SEJ’s
initial allegations that Lindsey abused them.
Sheena M.’s testimony describing her sons’ disclosures was limited. She told the jury that she questioned her
sons after speaking to Kejuana J. In
response, CDM and SEJ initially denied that Lindsey “did anything,” but, when
pressed, CDM said Lindsey “humped” CDM, and SEJ said Lindsey also “d[id]
something” to SEJ. These limited
statements offered no more testimony than was necessary for the jury to
understand why Sheena M. thought something might have
happened to her sons and
took them to the hospital for an examination in September 2010. Accordingly, the testimony was not
hearsay. See Wis. Stat. § 908.01(3).
Because neither Kejuana J. nor Sheena M. offered
hearsay testimony, trial counsel had no obligation to raise a hearsay
objection. An attorney has no obligation
to take meritless action. See State v. Toliver, 187 Wis. 2d
346, 360, 523 N.W.2d 113 (Ct. App. 1994).
We next consider whether Lindsey could pursue an
arguably meritorious claim that his trial counsel should have objected to the
amended information filed during the trial.
The amended information modified the timeframe in which the sexual
assaults allegedly occurred. The court
may allow an amendment of the information at trial to conform to the evidence
if the amendment is not prejudicial to the defendant. See Wis. Stat. § 971.29(2). The decision to allow an amendment rests in
the circuit court’s discretion. See State v. Malcom, 2001 WI App 291,
¶23, 249 Wis. 2d 403, 638 N.W.2d 918.
Here, the amendment requested by the State conformed
to the evidence establishing the period in which Lindsey interacted with Cheryl
M. and her family. Further, the record
reveals no prejudice to Lindsey. Lindsey’s
defense was built around his contentions that he was never alone with the
children and that they were angry with him for reasons having nothing to do
with sexual assault. Moreover, “[t]ime
is not of the essence in sexual assault cases.” State
v. Fawcett, 145 Wis. 2d
244, 250, 426 N.W.2d 91 (Ct. App. 1988).
Accordingly, we conclude that Lindsey could not pursue a meritorious
claim that his trial counsel was ineffective for foregoing an objection to the
amended information. See State
v. Ziebart, 2003 WI App 258, ¶14, 268 Wis. 2d 468, 673 N.W.2d 369
(attorney is not ineffective for failing to challenge a correct ruling).
Next, we consider appellate counsel’s assertion that
the record does not support a Batson claim. We agree with appellate counsel’s assessment
of the record. Further, despite the
opportunity to do so, Lindsey has not offered anything to suggest that events
outside the record would support a Batson claim. Accordingly, we conclude that no grounds exist
for arguably meritorious appellate proceedings challenging jury selection.[4]
We turn next to the issues that Lindsey raised in his
response to the supplemental no-merit report.
Appellate counsel elected not to reply to these contentions.
Lindsey complains that trial counsel erred by
conducting cross examinations that “merely bolstered witnesses
credibility.” Our examination of the
cross examinations satisfies us that trial counsel took reasonable steps to
reveal flaws in the State’s case.
Although the State contended during closing argument that
inconsistencies in a child’s narrative “make it more credible,” ultimately the
jurors—not the lawyers and not this court— assess the effect of cross
examination
on witness credibility. See
Kohlhoff
v. State, 85 Wis. 2d 148, 154, 270 N.W.2d 63 (1978). Moreover, cross examination is a matter of
trial strategy. See State v. Hereford,
224 Wis. 2d 605, 614-15, 592 N.W.2d 247 (Ct. App. 1999). “Matters of reasonably sound strategy,
without the benefit of hindsight, are ‘virtually unchallengeable.’” State v. Banks, 2010 WI App 107,
¶40, 328 Wis. 2d 766, 790 N.W.2d 526 (citation omitted).
Lindsey also complains that his trial counsel was
ineffective for failing to investigate whether to call witnesses. In fact, trial counsel presented the
testimony of Robbin Powell, who testified that she lived in Cheryl M.’s home
from June through August 2010 and did not see Lindsey engage in any
inappropriate behavior with children. Lindsey
himself also testified. His complaint that
trial counsel did not investigate whether to call witnesses thus has no arguable
merit.
Lindsey next complains that trial counsel “failed to investigate the strength of witnesses,” and he indicates that trial counsel presented “weaker witnesses” instead of those with “powerful support for the defense.” Relatedly, Lindsey asserts that trial counsel failed to “call important fact witnesses” and “fail[ed] to discover and present mitigating evidence.” Lindsey has had ample opportunity to identify for this court any witnesses that he believes his trial counsel should have presented. He did not do so. His vague contentions offer no basis to conclude that trial counsel made mistakes that resulted in a loss of available and meaningful defense evidence. Cf. State v. Leighton, 2000 WI App 156, ¶38, 237 Wis. 2d 709, 616 N.W.2d 126 (defendant who alleges failure to investigate on the part of counsel must specifically allege what the investigation would have revealed and how it would have altered the outcome of the trial).
Next, Lindsey complains that trial counsel failed to
investigate the “lack of physical evidence to support sexual abuse
allegations.” Nothing available to this
court suggests an unplumbed source for investigation in this regard. The State acknowledged it had no physical
evidence to support the charges against Lindsey. A nurse, Judy Walczak, testified that all
three children had physical examinations at Children’s Hospital shortly after
disclosing sexual abuse, and Walczak told the jury that the exams were normal
and revealed no physical evidence of sexual assault. Walczak also explained, however, that the lack
of physical evidence is common when medical examinations follow sexual assault
allegations. Cf. State v. Marinez, 2011 WI 12, ¶28, 331 Wis. 2d 568, 797
N.W.2d 399 (explaining that absence of physical evidence is a common feature of
child sexual assault trials and is a function of the nature of the crime). We are unable to conclude that a potentially
meritorious basis exists for challenging trial counsel’s effectiveness in
regard to the lack of physical evidence.
Next, we consider Lindsey’s contention that the
circuit court erroneously instructed the jury that the State had the burden of
proof. The instruction was correct. Assigning the State the burden of proof is
one of the key protections afforded to defendants in our legal system. See
Holland
v. State, 91 Wis. 2d 134, 138, 280 N.W.2d 288 (1979). Further pursuit of this claim would lack
arguable merit. See Ziebart, 268 Wis. 2d 468, ¶14.
We turn to whether Lindsey could pursue an arguably
meritorious challenge to his sentences.
Sentencing lies within the circuit court’s discretion, and our review is
limited to determining if the circuit 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 [circuit]
court in passing sentence.” State
v. Stenzel, 2004 WI App 181, ¶7, 276 Wis. 2d 224, 688 N.W.2d 20.
The circuit 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 circuit court may also consider a wide
range of other factors concerning the defendant, the offense, and the
community. See id. The circuit 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 circuit 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 circuit court
identified protection of the public as the primary sentencing goal and
discussed the factors the circuit court
deemed relevant to that objective. The
circuit court described the offense as serious, although less aggravated than
some, and the circuit court stated categorically that “the community needs to
be protected.” The circuit court then
turned to consideration of Lindsey’s character and to a variety of other
factors that the court viewed as largely mitigating. Acknowledging information in the presentence
investigation report (PSI) that Lindsey is the product of an incestuous
relationship and spent a substantial portion of his youth in juvenile detention
facilities, the circuit court observed:
I can’t imagine how anyone in Mr. Lindsey’s ...
situation would have anything other than conflicted feelings other than
anger. His father was in prison. His father assaulted and/or raped his
mother. He barely knew his
mother.... He had an awful, terrible,
horrible upbringing, and [in] reality there was no upbringing.... It’s in my view a mitigating factor. He was not raised. He was not brought up.
The circuit court went on to
note that Lindsey “doesn’t have anyone here [in court] with him today, which is
awful. It’s terrible.”
The circuit court took into account the indications in
the PSI that Lindsey had had significant problems academically.[5] At the same time, however, the circuit court
praised Lindsey for making “a very articulate, well-spoken statement” and
pointed out that Lindsey “was reading most of it.”
The circuit court also found that Cheryl M.
contributed substantially to the circumstances that permitted the criminal
behavior in this case. The circuit court
explained that it did not blame Cheryl M. for Lindsey’s crimes, but it noted
she was a woman in her forties when she began having sex with Lindsey, “an
eighteen-year old who she barely knew.”
The circuit court emphasized that her lack of judgment “is part of the
problem here.”
Ultimately, the circuit court found that Lindsey “was dealt a very very poor hand” but determined that he had to address substantial correctional needs for treatment, counselling, and education to overcome his circumstances. Therefore, although the circuit court rejected as too severe the State’s recommendation for a global disposition of thirty-to-thirty-four years of imprisonment, the circuit court imposed five consecutive sentences totaling sixteen years of initial confinement and eight years of extended supervision.[6]
The circuit court explained the factors that it
considered when imposing sentence. The
factors were proper and relevant.
Moreover, the penalty imposed was not unduly harsh. 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). Upon conviction
in this case, Lindsey faced the possibility of five consecutive sixty-year
sentences. See Wis. Stat.
§§ 948.02(1)(e) (2009-10), 939.50(3)(b) (2009-10), 973.15(2)(a)
(2009-10). The sentences imposed here were
well within the statutory maximums allowed by law. Such sentences are presumptively not unduly
harsh. See Grindemann, 255 Wis. 2d 632, ¶32. Given the nature of Lindsey’s crimes, we
cannot say that the circuit court’s sentencing decision shocks the public
sentiment or violates the judgment of reasonable people concerning what is
right and proper.
Finally, we have considered whether Lindsey could
pursue an arguably meritorious challenge to the order denying his pro se postconviction motion for relief
from the DNA
surcharge imposed at
sentencing. The circuit court sentenced
Lindsey in October 2011. Pursuant to Wis. Stat. § 973.046(1r) (2011-12),
the surcharge was mandatory for the offense in this case.[7] See State
v. Cherry, 2008 WI App 80, ¶5, 312 Wis. 2d 203, 752 N.W.2d
393. Further proceedings to address this
issue would lack arguable merit.
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 Paul G. Bonneson is relieved of any further representation of Carlos D. Lindsey 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 2013-14 version unless otherwise noted.
[2] In 2012, Lindsey submitted documents to this court objecting to the no-merit report more than ten months before Attorney Bonneson filed it. In the submission, Lindsey claimed he did not have a chance to confront his accusers, asserted he has received various mental health diagnoses, and complained about the conclusions of “consultant Lehmann PhD” who, Lindsey implied, conducted a psychological evaluation of him at his counsel’s request. We assure Lindsey that we have considered his 2012 submission in assessing whether this case presents any arguably meritorious issues for appeal.
[3] The State prefaced the questions by explaining: “I’m going to ask you a few questions about the circumstances of [JDM]’s disclosure and what you did in response.”
[4] Although we agree with Attorney Bonneson that nothing in the record reveals a constitutional defect in the jury selection process, we are surprised that he initially dismissed Lindsey’s concerns in this regard based solely on the content of the record. This court is bound by the record, see State v. Migliorino, 170 Wis. 2d 576, 596 n.11, 489 N.W.2d 678 (Ct. App. 1992), but a convicted person’s lawyer has a broad mandate to look for information that may afford the person relief. We are also surprised that, when asked for a supplemental report about the issue, Attorney Bonneson responded: “I have concluded that I will ask Lindsey to explain to me what specific facts he believes show that a juror or jurors were struck by the State because of their status as African American persons.” We anticipate that appellate counsel will make inquiries about the appellant’s concerns before filing a no-merit report.
Finally, we note our expectation that appellate counsel conducting an appeal pursuant to Wis. Stat. Rule 809.32 will discuss more of the ruling and decisions involved in a multi-day jury trial than counsel examined in the no-merit report filed here. The discussion requirement imposed by Rule 809.32 aids the court and, in fulfilling the discussion obligation, “counsel may discover previously unrecognized aspects of the law in the process of preparing a written explanation for his or her conclusions.” See McCoy v. Court of Appeals, 486 U.S. 429, 442 (1988).
[5] The PSI documents that Lindsey “was identified as mildly mentally retarded” in 2008 while at Ethan Allen School – Juvenile Corrections, but further documents that the diagnoses reflected in his most recent psychiatric notes from 2011 are “mood disorder, not otherwise specified, conduct disorder, [and] developmental delay, not otherwise specified.”
[6] For the offenses against JDM, the circuit court imposed, as to one count, four years of initial confinement and two years of extended supervision for one count, and, for the other two counts, two identical sentences of three years of initial confinement and one year of extended supervision. For the offenses against CDM and SEJ, the circuit court imposed two identical sentences of three years of initial confinement and two years of extended supervision.
[7] Effective January 1, 2014, the legislature amended Wis. Stat. § 973.046(1r). See 2013 Wis. Act 20, §§ 2354-55, 9426. The amendment first applies to sentences imposed on the effective date. See id., § 9326(1)(g). The amendment is thus not relevant to Lindsey.