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COURT OF
APPEALS DECISION DATED AND
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12, 1997 |
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This opinion is subject to further editing. If published, the official version will appear in the bound
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Nos. 96-2433-CR-NM
96-2434-CR-NM
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff‑Respondent,
v.
ROBERT
T. LANGSTON,
Defendant‑Appellant.
APPEAL
from judgments of the circuit court for Kenosha County: BARBARA A. KLUKA,
Judge. Affirmed.
Before
Snyder, P.J., Nettesheim and Anderson, JJ.
PER
CURIAM. Counsel for Robert T.
Langston has filed a no merit report and a supplemental report in reply to
Langston’s response.[1] Upon our independent review of the record as
mandated by Anders v. California, 386 U.S. 738 (1967), we
conclude that there is no arguable merit to any issue that could be raised on
appeal.
Langston
was initially charged with two counts of sexual assault of a child, S.T., his
girlfriend’s daughter. The complaint
alleged that Langston sexually assaulted the child several times each week from
just after her ninth birthday until she turned twelve. Langston entered into an agreement with the
State in which he waived his right to a preliminary hearing in return for the
State’s promise to charge no more than six counts of first-degree sexual
assault in the information. The State
then filed an information charging six counts of first-degree sexual assault
and Langston was released on bail with the conditions that he have no contact
with S.T. or her brother, not reside at their residence and not reside with any
minor females. Langston violated the
conditions of his release by residing with S.T. and another minor female, failing
to provide the court with a notice of his change of address, and by committing
battery to another person. He was
charged with four counts of bail jumping.
Pursuant
to a plea agreement, Langston agreed to enter no contest pleas to three counts
of sexual assault and two counts of bail jumping. The remaining counts were dismissed and read in. The State agreed to make no specific
recommendation at sentencing. The court
accepted Langston’s no contest pleas and sentenced him to consecutive terms
totaling fifty-five years in prison to be followed by ten years probation.
The
initial no merit report addresses the validity of the no contest pleas and the
length of the sentence. We agree with
counsel’s analysis that the trial court followed all of the requirements for
accepting a no contest plea set out in State v. Bangert, 131
Wis.2d 246, 259-62, 389 N.W.2d 12, 20-21 (1986). There is also no basis for challenging the exercise of the trial
court’s sentencing discretion in light of the gravity of the offenses,
Langston’s character, and the need to protect the public. See State v. Glotz, 122 Wis.2d
519, 524, 362 N.W.2d 179, 181 (Ct. App. 1984).
In
his response to the no merit report, Langston alleges that he was in jail at
the time some of the crimes were committed.
As his counsel notes in the supplemental no merit report, Langston’s
alibis do not exclude his participation in the crimes to which he pled. The offenses were alleged to have occurred
on or about July or September of each year between 1989 and 1991. Because time is not an element in a sexual
assault case, the State would not have been required to prove the precise date
of the sexual assaults charged. See
State v. Fawcett, 145 Wis.2d 244, 250, 426 N.W.2d 91, 94 (Ct.
App. 1988). In addition, Langston was
allowed Huber law privileges for child care purposes in 1989. An alibi for some of the offenses or
evidence that casts doubt on the date of some of the offenses would not have
provided a substantial defense. In
light of the accusation in the criminal complaint that Langston sexually
assaulted the child several times per week for several years, his trial counsel
was not arguably ineffective for securing a plea agreement despite confusion
over the precise dates of the offenses charged.
Langston
also alleges that his stepson lied when he stated that he saw a sexual assault
through a keyhole because there are no keyholes in the house of the type which
a person could see through. Before
accepting his pleas, the trial court reminded Langston of the rights he would
waive by entering no contest pleas, including the rights to cross-examine
witnesses and present a defense.
Langston knew the type of keyholes in the house at the time he entered
his pleas. The fact that he may have
been able to impeach a corroborating witness to some of the sexual assaults
does not constitute newly-discovered evidence or a manifest injustice
sufficient to allow withdrawal of the no contest pleas. See State v. Krieger, 163
Wis.2d 241, 255, 471 N.W.2d 599, 604 (Ct. App. 1991).
Langston
also alleges that he had just gotten out of the hospital “for thoughts of
suicide and drugs and depression” at the time he entered the pleas. The trial court specifically questioned
Langston about his mental state at the time the pleas were accepted and the
record provides no basis for challenging the pleas at this time.
Our
independent review of the record discloses no other potential issues for
review. Therefore, we relieve Attorney
John Lubarsky of further representing Langston in these matters and affirm the
judgments of conviction.
By
the Court.—Judgments affirmed.