District IV
June 13, 2013
To:
Hon. Nicholas McNamara
Circuit Court Judge, Br. 5
Dane County Courthouse
215 South Hamilton
Madison, WI 53703
Carlo Esqueda
Clerk of Circuit Court
Room 1000
215 South Hamilton
Madison, WI 53703
Shelley Fite
Assistant State Public Defender
P.O. Box 7862
Madison, WI 53707
Michelle L. Viste
Asst. District Attorney
Rm. 3000
215 South Hamilton
Madison, WI 53703
Gregory M. Weber
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Donte D. Beasley Sr. 568468
Waupun Corr. Inst.
P.O. Box 351
Waupun, WI 53963-0351
You are hereby
notified that the Court has entered the following opinion and order:
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State of
Wisconsin v. Donte D. Beasley, Sr. (L.C. # 2009CF1936) |
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Before Higginbotham, Sherman
and Kloppenburg, JJ.
Donte Beasley appeals a judgment convicting him of one
count of attempted first-degree intentional homicide and two counts of
first-degree reckless injury, contrary to Wis.
Stat. §§ 939.32, 940.01(1)(a), and 940.23(1)(a) (2011-12).[1] Attorney Shelley Fite has filed a no-merit
report seeking to withdraw as appellate counsel. See Anders v. California, 386 U.S. 738,
744 (1967); Wis. Stat. Rule 809.32;
see also State ex rel. McCoy v. Wisconsin
Court of Appeals, 137 Wis. 2d 90, 403 N.W.2d 449 (1987), aff'd, 486 U.S. 429 (1988). Beasley was sent a copy of the report and has
filed a response and a supplemental response.
Upon reviewing the entire record, as well as counsel’s no-merit report
and Beasley’s responses, we conclude that there are no arguably meritorious
appellate issues.
Beasley’s convictions were based upon the entry of no-contest
pleas, and we see no arguable basis for plea withdrawal. In order to withdraw a plea after sentencing,
a defendant must either show that the plea colloquy was defective, or demonstrate
some other manifest injustice such as coercion, the lack of a factual basis to
support the charge, ineffective assistance of counsel, or failure by the
prosecutor to fulfill the plea agreement.
State v. Bangert, 131 Wis. 2d 246, 261-62, 271-72,
283, 289, 389 N.W.2d 12 (1986); State v. Krieger, 163 Wis. 2d 241,
249-51 and n.6, 471 N.W.2d 599 (Ct. App. 1991).
There is no indication of any such defect here.
In exchange for Beasley’s no-contest pleas, the State agreed
to dismiss and read in additional charges and to cap its sentencing recommendation
at twenty-five years of initial confinement time. The State followed through on that agreement.
The court conducted a plea colloquy
exploring Beasley’s understanding of the nature of the charges, the penalty
ranges and other direct consequences of the pleas, and the constitutional
rights being waived. See Wis.
Stat. § 971.08; Bangert, 131 Wis. 2d at 266-72; State
v. Hoppe, 2009 WI 41, ¶18, 317 Wis. 2d 161, 765 N.W.2d 794. The court made sure Beasley understood that the
court would not be bound by the terms of the plea agreement. The court also inquired into Beasley’s
ability to understand the proceedings and the voluntariness of the plea
decision. In addition, the record
includes a signed plea questionnaire. Beasley
indicated to the court 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).
Beasley now asserts that no factual basis exists for
his no contest plea because he was too intoxicated at the time of the incident
to form the requisite intent under Wis.
Stat. § 940.01(1)(a). He
asserts that his trial counsel failed to inform him of the potential
intoxication defense under Wis. Stat. § 939.42
and failed to inform the court that Beasley was diagnosed with bipolar disorder
two months prior to the incident giving rise to the charges in this case. He also argues that the court should have
read him the jury instructions for the intoxication defense. These arguments are without merit.
First,
there is no requirement that a jury instruction be read during a plea
colloquy. Our supreme court stated in
Bangert, 131 Wis. 2d at 268, that the reading of jury instructions is
one of several ways that a circuit court may determine a defendant’s
understanding of the nature of the charges against him. As previously discussed, we are satisfied that
the court adequately explored during the plea colloquy Beasley’s understanding
of the changes against him and the rights he was waiving, including the right
to present defenses.
Next,
any claim of ineffective assistance of counsel would be without merit because Beasley
cannot demonstrate that he was prejudiced by his counsel’s alleged deficiencies. See
State v. Swinson, 2003 WI App 45, ¶58, 261 Wis. 2d 633,
660 N.W.2d 12. The record
contains evidence of Beasley’s intoxication at the time of the incident and of
his mental health issues. The State nonetheless
charged Beasley with attempted intentional homicide, and during the plea
colloquy, the court asked Beasley if he agreed that the State would be able to
prove at trial the facts that were alleged in the complaint. Beasley responded, “Yes.” Beasley’s counsel told the court that the
complaint could be used to find a factual basis for the pleas. Beasley stated at the plea hearing that he was
satisfied with his attorney, and we have found nothing in the record to suggest
that counsel’s performance was in any way deficient. Beasley has not alleged any other facts that
would give rise to a manifest injustice.
Therefore, his pleas are valid and operated to waive all
nonjurisdictional defects and defenses. State
v. Kelty, 2006 WI 101, ¶18, 294 Wis. 2d 62, 716 N.W.2d 886; Wis. Stat. § 971.31(10).
A challenge to Beasley’s sentences would also lack
arguable merit. Our review of a sentence
determination begins with a “presumption that the [circuit] court acted
reasonably” and it is the defendant’s burden to show “some unreasonable or
unjustifiable basis in the record” in order to overturn it. State v. Krueger, 119 Wis. 2d 327,
336, 351 N.W.2d 738 (Ct. App. 1984).
Here, the record shows that Beasley was afforded an opportunity to
comment on the presentence investigation report and address the court. The court proceeded to consider the standard
sentencing factors and explained their application to this case. See State
v. Gallion, 2004 WI 42, ¶¶39-46, 270 Wis. 2d 535, 678 N.W.2d 197. Regarding the severity of the offenses, the
court stated that the crime had been tragic and that, although Beasley was not
necessarily a bad person, the gravity of the offenses was the overwhelming
factor. With respect to Beasley’s character,
the court referenced Beasley’s relatively minor past criminal history, as well
as ongoing substance abuse. The court
concluded that a prison term was necessary to protect the public.
The court then sentenced Beasley to fifteen years of
initial confinement and ten years of extended supervision on the homicide count
and five years of initial confinement and 5 years of extended supervision on
each of the reckless injury charges, all consecutive. The court also awarded 425 days of sentence
credit and determined that the defendant was eligible for a risk reduction
sentence.
The sentences imposed are within the applicable
penalty ranges. See Wis. Stat.
§§ 940.01(1)(a), 939.32(1)(a) (attempted first-degree intentional homicide
is a Class B felony); 939.50(3)(b) (providing maximum imprisonment term of sixty
years for Class B felonies); 940.23(1)(a) (classifying first-degree reckless
injury as a Class D felony); 939.50(3)(d) (providing maximum imprisonment term
of twenty-five years for Class D felonies); and 973.01 (explaining bifurcated
sentence structure). The sentences were
not “so excessive and unusual and so disproportionate to the offense committed”
as to be unduly harsh—particularly given that they were well within the limits
of the maximum sentences. State
v. Grindemann, 2002 WI App 106, ¶¶31-32, 255 Wis. 2d 632, 648 N.W.2d 507
(quoting another source).
Upon our independent review of the record, we have
found no other arguable basis for reversing the judgment of conviction. See State v. Allen, 2010 WI 89,
¶¶81-82, 328 Wis. 2d 1, 786 N.W.2d 124.
We conclude that any further appellate proceedings would be wholly
frivolous within the meaning of Anders and Wis. Stat. Rule 809.32.
Accordingly,
IT IS ORDERED that the judgment of conviction is
summarily affirmed pursuant to Wis. Stat.
Rule 809.21.
IT IS FURTHER ORDERED that Shelley Fite is relieved of
any further representation of the defendant in this matter pursuant to Wis. Stat. Rule 809.32(3).
Diane
M. Fremgen
Clerk
of Court of Appeals