District I
February 19, 2013
To:
Hon. Jeffrey A. Conen
Circuit Court Judge
Safety Building
821 W. State St.
Milwaukee, WI 53233
John Barrett
Clerk of Circuit Court
Room 114
821 W. State Street
Milwaukee, WI 53233
Michael J. Backes
Law Offices of Michael J. Backes
P.O. Box 11048
Shorewood, WI 53211
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
Anthony Edward Barnes, Jr. 473067
Green Bay Corr. Inst.
P.O. Box 19033
Green Bay, WI 54307-9033
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Anthony Edward Barnes, Jr. (L.C. #2010CF1003) |
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Before Curley, P.J., Fine and Brennan, JJ.
Anthony Edwards Barnes, Jr.,
appeals a judgment convicting him of three counts of felony murder, with armed
robbery as the underlying felony, and one count of first-degree reckless
homicide. Appellate counsel, Michael J.
Backes, filed a no-merit report seeking to withdraw as appellate counsel. See
Wis. Stat. Rule 809.32 (2011-12),[1]
and Anders
v. California, 386 U.S. 738, 744 (1967). Barnes has filed a response. After considering the no-merit report and the
response, and after conducting an independent review of the record, we agree
with counsel’s assessment that there are no arguably meritorious appellate
issues. Therefore, we summarily affirm
the judgment of conviction. See Wis.
Stat. Rule 809.21.
The no-merit report first addresses whether there would be arguable merit to an appellate challenge to Barnes’s guilty plea. The plea colloquy complied in all respects with the requirements of Wis. Stat. § 971.08 and State v. Bangert, 131 Wis. 2d 246, 266-72, 389 N.W.2d 12 (1986). The circuit court addressed whether Barnes understood the charges against him, the maximum penalties he faced, and the constitutional rights he would be waiving by entering a plea. The plea agreement was stated on the record, and Barnes acknowledged that he understood it. The circuit court ascertained that Barnes had reviewed a plea questionnaire and waiver-of-rights form with his attorney and that he understood the information explained on that form. See State v. Moederndorfer, 141 Wis. 2d 823, 827-28, 416 N.W.2d 627 (Ct. App. 1987). Barnes stipulated that the complaint and his testimony in the case of a co-defendant provided a factual basis for the charges. We therefore conclude that there would be no arguable merit to an appellate challenge involving the plea.
The no-merit report next addresses whether there would be arguable merit to a claim that the sentence imposed on Barnes was unduly harsh or excessive. The circuit court sentenced Barnes to an aggregate term of fifty years of imprisonment, with forty years of initial confinement and ten years of extended supervision. In framing its sentence, the circuit court stated this was one of the most horrific cases it had ever seen, if not the most horrific case, in fifteen years on the bench. Barnes participated in the brutal murder of a woman and her two small children, and then murdered a co-defendant. The circuit court considered a host of factors pertinent to the sentencing decision, giving credit to Barnes for his assistance in helping to convict a co-defendant, but held him accountable for his heinous actions. The circuit court explained its application of the various sentencing considerations in accordance with the framework set forth in State v. Gallion, 2004 WI 42, ¶¶39-46, 270 Wis. 2d 535, 678 N.W.2d 197. Therefore, we conclude that there would be no arguable merit to a challenge to the sentence on appeal.
The no-merit report next addresses whether there would be any basis to seek sentence modification. Barnes’s attorney states that he asked Barnes for information that might support a motion for sentence modification, but that Barnes was unable to provide him with any such information. Our independent review of the record does not show any basis for a sentence modification motion. Therefore, we conclude that there would be no arguable merit to a claim that Barnes is entitled to sentence modification.
In his response, Barnes argues
that he was denied the effective assistance of counsel because his attorney did
not seek to suppress his inculpatory statement.
Barnes’s attorney moved to suppress his statement to police, but Barnes
decided to plead guilty, availing himself of a generous plea bargain. When he entered the plea, Barnes waived his
right to have the circuit court decide his motion to suppress.
Barnes also argues in his response that he should be allowed to withdraw his plea because the circuit court failed to determine that he understood the elements of first-degree reckless homicide. This claim is belied by the record. The elements of first-degree reckless homicide were attached to the plea questionnaire and waiver-of-rights form. As indicated above, the circuit court ascertained that Barnes had reviewed the form with his attorney and understood it. Moreover, the circuit court asked Barnes directly whether he understood that he was charged with first-degree reckless homicide, explaining the elements of the crime, and asked whether he had any questions. There would be no arguable merit to a claim that Barnes should be allowed to withdraw his plea because the circuit court failed to determine that he understood the elements of first-degree reckless homicide.
IT IS ORDERED that the judgment of conviction is summarily affirmed. See Wis. Stat. Rule 809.21.
IT IS FURTHER ORDERED that Attorney Michael J. Backes is relieved of any further representation of Barnes in this matter. See Wis. Stat. Rule 809.32(3).
Diane M. Fremgen
Clerk of Court of Appeals