CA Blank Order

Hon. Nancy J. Krueger

Circuit Court Judge

320 S Walnut St

Appleton, WI 54911

Lonnie Wolf

Clerk of Circuit Court

Outagamie County Courthouse

320 S. Walnut Street

Appleton, WI 54911

Leonard D. Kachinsky

Sisson & Kachinsky Law Offices

103 W. College Ave. #1010

Appleton, WI 54911-5782

Carrie A. Schneider

District Attorney

320 S. Walnut St.

Appleton, WI 54911

Gregory M. Weber

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857

Phillip E. Burton Jr. 536450

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:



	2012AP2505-CRNM	State of Wisconsin v. Phillip E. Burton, Jr. (L. C. #2011CF543)

Before Hoover, P.J., Mangerson, J., and Thomas Cane, Reserve Judge.

Counsel for Phillip Burton, Jr., has filed a no-merit report concluding no grounds exist to challenge Burton’s conviction for robbery with threat of force and theft from person. Burton was advised of his right to respond and has not responded. Upon our independent review of the record as mandated by Anders v. California, 386 U.S. 738 (1967), we conclude there is no merit to any issue that could be raised and summarily affirm.

Burton was charged with armed robbery after allegedly entering a Walgreens store in Appleton and robbing the pharmacy of bottles of Oxycontin, after displaying a note threatening to shoot the pharmacist and other employees if not given the pills. Burton entered no contest pleas to an amended Information charging robbery with threat of force and theft from person. The circuit court imposed a sentence of five years’ initial incarceration and three years’ extended supervision on the robbery offense, and one year initial incarceration and three months’ extended supervision on the theft charge, consecutive to each other and concurrent to an existing sentence.

There is no arguable basis upon which Burton could withdraw his pleas. See State v. Duychak, 133 Wis. 2d 307, 312, 395 N.W.2d 795 (Ct. App. 1986). The court’s colloquy, buttressed by the plea questionnaire and waiver of rights form, informed Burton of the constitutional rights he waived by pleading no contest, the elements of the offenses and the potential penalties. Burton was advised the court could impose the maximum penalties and was not bound by the parties’ agreement. See State v. Hampton, 2004 WI 107, ¶2, 274 Wis. 2d 379, 683 N.W.2d 14. A proper factual basis supported the conviction. Burton’s pleas were freely, voluntarily and intelligently entered. See State v. Bangert, 131 Wis. 2d 246, 260, 389 N.W.2d 12 (1986). Entry of a valid no contest plea constitutes a waiver of nonjurisdictional defects and defenses.[1] Id. at 265‑66.

The record also discloses no basis for challenging the court’s sentencing discretion. The court considered the proper factors, including Burton’s character, the seriousness of the offenses and the need to protect the public. See Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975). The sentence imposed was far less than allowable by law and therefore presumptively neither harsh nor excessive. See State v. Grindemann, 2002 WI App 106, ¶32, 255 Wis. 2d 632, 648 N.W.2d 507.

Our independent review of the record discloses no other issues of arguable merit. Therefore,

IT IS ORDERED that the judgment is summarily affirmed. See Wis. Stat. Rule 809.21 (2011-12).

IT IS FURTHER ORDERED that attorney Leonard Kachinsky is relieved of further representing Burton in this matter.

[1] The no-merit report indicates Burton claimed in a phone conversation with appellate counsel that trial counsel “promised that he would only get five years IC.” Any such claim is belied by the plea questionnaire and Burton’s statements on the record during two plea proceedings four days apart.