|
COURT OF APPEALS DECISION DATED AND RELEASED September 26, 1996 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0971-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CURTIS DORTCH, JR.,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Rock County: J. RICHARD LONG, Judge. Affirmed.
ROGGENSACK,
J. Curtis Dortch appeals from a judgment convicting him of
three misdemeanors. Counsel for Dortch
has filed a no merit report pursuant to § 809.32, Stats. Dortch
received a copy of the report, but he has not responded. Upon consideration of the report and an
independent review of the record, as mandated by Anders v. California,
386 U.S. 738 (1967), this court concludes there is no arguable merit to any
issue that could be raised on appeal.
The judgment of conviction is affirmed.[1]
BACKGROUND
The State charged Dortch
with three misdemeanors: intentionally
pointing a firearm at another, obstructing an officer and disorderly
conduct. Dortch pled no contest to all
three counts. In exchange for his plea,
the State agreed to recommend that he be sentenced to time served. However, the trial court withheld sentence
and placed Dortch on probation for three years. As a condition of probation, it required Dortch to serve nine
months in jail. The trial court
provided that Dortch could be released early from his jail term, if he
completed the Rock County Education and Criminal Addictions Program.
DISCUSSION
Scope
of Review.
When an appeal has been
filed and a no merit report submitted by defendant's counsel, this court
examines the report and conducts an independent review of the record to
determine whether there are any issues which have arguable merit. Anders, 386 U.S. at 744.
Dortch's counsel has
addressed whether Dortch's plea was knowingly, voluntarily and intelligently
given and whether Dortch's sentence was too severe for the crimes charged. This court reviews the record de novo
to determine whether the procedure used by the trial court in accepting the
plea was sufficient. State v.
Bangert, 131 Wis.2d 246, 286, 389 N.W.2d 12, 31 (1986). However, sentencing is within the sound
discretion of the trial court and will not be overturned on appeal absent an
abuse of discretion. State v.
Kennedy, 190 Wis.2d 252, 257, 528 N.W.2d 9, 11 (Ct. App. 1994).
Dortch's
Plea.
In a case such as this,
before a plea of no contest can be accepted, the trial court must
determine: (1) the extent of the
accused's education and general ability to comprehend; (2) the accused's
understanding of the nature of the crimes charged and the potential punishments
the court could impose; (3) the accused's understanding of the constitutional
rights he is waiving; (4) whether either promises or threats were made to the
accused to obtain his plea; and (5) whether a factual basis existed to support
convictions of the crimes charged. State
v. Bangert, 131 Wis.2d at 266-72, 389 N.W.2d at 22-25 (1986). A proper inquiry by the trial court ensures
that defendants enter their pleas knowingly, intelligently and
voluntarily. Id.
Dortch cannot
successfully withdraw his plea because the trial court's inquiries established
he knowingly, intelligently and voluntarily pled no contest. Before accepting the plea, the trial court
established that Dortch had sufficient intelligence and education to understand
the proceedings. And, although it did
not detail each constitutional guaranty, it did engage in a sufficient colloquy
with Dortch to establish that by signing the waiver form, he knew he was
waiving his constitutional rights. The
trial court also established that the plea had been agreed to without a threat
made or a promise given, and that Dortch understood the nature of the crimes
charged, including the potential punishments the trial court could impose. The trial court also established that there
was an independent factual basis to support Dortch's convictions of the crimes
charged. The trial court followed Bangert's
mandate. Dortch's pleas were properly
accepted.
Dortch's
Sentence.
Sentencing is a
discretionary determination by the trial court. McCleary v. State, 49 Wis.2d 263, 278, 182 N.W.2d
512, 520 (1971). A trial court properly
exercises its sentencing discretion if the sentence is not excessive; it relies
on the proper factors; and the correct legal standards are applied. State v. Krueger, 119 Wis.2d
327, 336-37, 351 N.W.2d 738, 743 (Ct. App. 1984). This court presumes the trial court acted properly in sentencing
Dortch, and the burden is on Dortch to prove otherwise. Id.
In sentencing Dortch,
the trial court commented on the seriousness of pointing a loaded gun at
another person, and it took note of Dortch's previous misdemeanor conviction
and his juvenile record. The trial
court also considered Dortch's level of education and lack of work
history. Thereafter, it concluded that sentencing
Dortch to time served would not sufficiently deter him from future criminal
activity. These are proper factors for
the court to consider.
Additionally, the
sentence falls within the statutory limits.
A defendant convicted of three misdemeanors may be placed on three years
probation. Section 973.09(2)(a)2, Stats.
The court may impose reasonable and appropriate conditions of probation,
§ 973.09(1), Stats.,
including a jail term of up to one year.
Section 973.09(4), Stats. The trial court properly exercised its
discretion. See Kennedy,
190 Wis.2d at 257, 528 N.W.2d at 11.
Appellate counsel's
review of the record disclosed no other potentially meritorious issues. This court's independent review of the
record, as mandated by Anders, demonstrates there are no issues
arguable on their merits, and any further proceedings would be frivolous. Accordingly, the judgment of conviction is
affirmed and Dortch's counsel is relieved of any further representation of
Dortch.
By the Court.—Judgment
affirmed.