CA Blank Order

Hon. Kathryn W. Foster

Circuit Court Judge

Waukesha County Courthouse

515 W. Moreland Blvd.

Waukesha, WI 53188

Kathleen A. Madden

Clerk of Circuit Court

Waukesha County Courthouse

515 W. Moreland Blvd.

Waukesha, WI 53188

Russell D. Bohach

P.O. Box 485

Butler, WI 53007

Susan Lee Opper

Assistant District Attorney

515 W. Moreland Blvd., Rm. G-72

Waukesha, WI 53188-2486

Gregory M. Weber

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857

Dale E. Voss, #158087

Oshkosh Corr. Inst.

P.O. Box 3310

Oshkosh, WI 54903-3310

Before Neubauer, P.J., Reilly and Gundrum, JJ.

Russell D. Bohach, counsel for Dale E. Voss, has filed a no-merit report pursuant to Wis. Stat. Rule 809.32 (2013-14)[1] and Anders v. California, 386 U.S. 738 (1967), concluding that no grounds exist to challenge Voss’s convictions for two counts of first-degree sexual assault of a child/sexual contact with a person under thirteen. Voss was advised of his right to file a response but, despite being granted an extension of time, he has not done so. Upon consideration of the no-merit report and an independent review of the record as mandated by Anders and Rule 809.32, we conclude that there is no arguable merit to any issue that could be raised on appeal. The judgment is summarily affirmed. See Wis. Stat. Rule 809.21.

A registered sex offender since 1991 for a similar conviction, Voss was charged with seven counts of first-degree sexual assault of a child/sexual contact with a person under thirteen. The assaults, which occurred over a five-year period, involved his daughter, stepdaughter, and two of their friends. Voss entered a no-contest plea to Count 1, involving one of the friends, and a guilty plea to Count 2, involving his stepdaughter. The other five counts were dismissed and read in for sentencing. The circuit court imposed a global sentence of twenty years’ confinement followed by ten years’ extended supervision. This no-merit appeal followed.

The no-merit report considers whether there is arguable merit to a challenge to Voss’s no-contest and guilty pleas. We agree with appellate counsel that there is not.

The circuit court substantially followed Wis. Stat. § 971.08 to ensure that Voss’s pleas were knowingly, voluntarily, and intelligently entered.[2] The court ascertained that he understood the elements of the charges to which he was pleading, the potential punishments he faced, the constitutional rights he was giving up, and that it was not bound by sentencing recommendations. See § 971.08(1); State v. Bangert, 131 Wis. 2d 246, 260-62, 389 N.W.2d 12 (1986); State v. Hampton, 2004 WI 107, ¶¶24, 33, 38, 274 Wis. 2d 379, 683 N.W.2d 14.

Besides the substantive colloquy, the court looked to the plea questionnaire/waiver of rights form Voss signed and verified his understanding. See State v. Hoppe, 2009 WI 41, ¶¶30-32, 317 Wis. 2d 161, 765 N.W.2d 794. When Voss stated that he was not getting pain medication while in jail, the court queried him further about his level of pain. Voss assured the court that he was certain he wanted to continue with the hearing. The court observed that he appeared in no obvious physical distress and had been “completely responsive” throughout the colloquy. A review of the record discloses nothing that qualifies as the “manifest injustice” a defendant must establish to withdraw a plea after sentencing. See State v. Cain, 2012 WI 68, ¶26, 342 Wis. 2d 1, 816 N.W.2d 177. A challenge to the pleas would be meritless.

The report also examines whether a nonfrivolous issue exists with regard to the circuit court’s exercise of its sentencing discretion. There would be no arguable basis to claim an erroneous exercise of discretion, see State v. Gallion, 2004 WI 42, ¶¶41-43 & n.11, 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).

Sentencing is left to the discretion of the circuit court, and appellate review is limited to determining whether that discretion was erroneously exercised. Gallion, 270 Wis. 2d 535, ¶17. The court here fully addressed the primary sentencing factors, State v. Spears, 227 Wis. 2d 495, 507, 596 N.W.2d 375 (1999), and the relevant sentencing objectives, Gallion, 270 Wis. 2d 535, ¶¶40-41. The weight to be given them is a determination particularly within the court’s discretion. Ocanas, 70 Wis. 2d at 185.

The court set forth a “rational and explainable basis” for its decision. See Gallion, 270 Wis. 2d 535, ¶76 (citation omitted). It discussed at length the seriousness of Voss’s offenses, expressed dismay that his original sex-offender treatment proved insufficient, and emphasized the need for a sentence that would protect the public and punish him. It noted that twenty years’ confinement should accomplish protection, punishment, and needed sex-offender treatment.

After agreeing to plead to two of seven counts, Voss shaved his exposure from 420 to 120 years. With the court’s thorough explanation in mind, we cannot say that the thirty-year sentence imposed “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.” Ocanas, 70 Wis. 2d at 185. Our independent review of the record reveals no other nonfrivolous issues. Therefore,

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 Russell D. Bohach is relieved of further representing Dale E. Voss in this matter.

[1] All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise noted.

[2] The circuit court failed to include the mandatory advisory regarding potential citizenship consequences. See Wis. Stat. § 971.08(1)(c); see also State v. Douangmala, 2002 WI 62, ¶31, 253
Wis. 2d 173, 646 N.W.2d 1. The plea questionnaire/waiver of rights form contains the deportation advisory. Voss told the court he reviewed the form with his counsel and understood everything on it. Also, the presentence investigation report indicates that Voss was born in Minnesota and has always lived in the United States. No arguable issue could be raised that his pleas are likely to result in deportation. See § 971.08(2); see also Douangmala, 253 Wis. 2d 173, ¶¶25, 31.



	2014AP2589-CRNM	State of Wisconsin v. Dale E. Voss (L.C. #2012CF923)