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COURT OF
APPEALS DECISION DATED AND
RELEASED March
13, 1997 |
NOTICE |
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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.
96-3498-CR-NM
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
OBEA HAYES,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Rock County: J. R. LONG, Judge. Affirmed.
ROGGENSACK,
J.[1] Obea
Hayes appeals from a judgment convicting him of one count of disorderly conduct
with a dangerous weapon, as a repeater, contrary to §§ 947.01,
939.62(1)(a) and 939.63(1)(a)1., Stats. Counsel for Hayes has filed a no merit
report under Rule 809.32, Stats., and Anders v. California,
386 U.S. 738 (1967). Hayes received a
copy of the report and responded to it.
Upon consideration of the report, the response, and an independent
review of the record, as mandated by Anders, this court concludes
there is no arguable merit to any issue that could be raised on appeal. The judgment of conviction is affirmed.
The
charge arose from an incident in which Hayes was alleged to have been playing
cards with several others while intoxicated.
He became angry and indicated a desire to fight with another, and took
two punches at him, but missed. Hayes
then shoved the man, went into a nearby kitchen, emerged with a butcher knife
and said, "I'll cut you."
Hayes put the knife down, but again pushed the man. Hayes pleaded no contest. The court sentenced him to three years in
prison, consecutive to any other sentence.
When
appointed counsel submits a no merit report, this court examines the report and
any response from the defendant 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.
The
report first addresses whether Hayes' plea was knowingly, voluntarily and
intelligently entered. Before a no
contest plea 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 promises or threats were made to the accused
to obtain his plea; and (5) whether a factual basis existed to support
conviction of the crime charged. State
v. Bangert, 131 Wis.2d 246, 266-72, 389 N.W.2d 12, 22-25 (1986). A proper inquiry by the trial court ensures
that defendants enter their pleas knowingly, voluntarily and
intelligently. Id. This court reviews the record de novo
to determine whether the procedure used by the trial court in accepting the
plea was sufficient. Id.
at 286, 389 N.W.2d at 31.
During
its plea colloquy with Hayes, the trial court reviewed the nature of the
charge, the plea questionnaire, Hayes' education, and the constitutional rights
he was waiving. The court obtained Hayes'
admission that he was convicted of the felony upon which the allegation of
habitual criminality was based. The
court ascertained that no promises or threats were made. The court determined that the complaint
supplied a sufficient factual basis for the conviction. The colloquy satisfied the Bangert
requirements.
In
his response, Hayes argues that his plea was involuntary because he only
accepted his attorney's advice to plead because he was depressed; he did not
know what "no contest" meant; and he thought there was a plea
agreement, although he does not say what he believed the terms of the agreement
were. A defendant who wishes to
withdraw a plea is not entitled to an evidentiary hearing if he or she does not
allege sufficient facts to raise a question of fact, or if he or she presents
only conclusionary allegations. State
v. Bentley, 201 Wis.2d 303, 309-311, 548 N.W.2d 50, 54-55 (1996). The facts alleged should allow a reviewing
court to "meaningfully assess" the claim. Id. at 314, 548 N.W.2d at 55.
The
transcript of the plea hearing provides no support for any of Hayes'
allegations. Hayes was asked if he
believed he was suffering from any mental illness of any kind, and he said he
was not. The court asked Hayes whether
he was entering the plea "entirely of your own free will," and Hayes
replied that he was. The court told
Hayes to let it know if anything was said or done during the hearing that he
did not understand. Hayes said he
would. Although the term "no
contest" was used several times, Hayes never asked about it. The plea hearing transcript contains no
reference to a plea agreement. Under
these circumstances, we conclude that Hayes' response does not provide
sufficient facts to obtain an evidentiary hearing, and therefore there would be
no arguable merit to raising these issues.
The
no merit report also addresses whether the trial court erroneously exercised
its discretion in sentencing Hayes. The
court sentenced him to the maximum available sentence, three years in prison.
We
will not disturb a sentence imposed by the trial court unless the court
erroneously exercised its discretion. State
v. Thompson, 172 Wis.2d 257, 263, 493 N.W.2d 729, 732 (Ct. App.
1992). When imposing sentence, a trial
court must consider the gravity of the offense, the offender's character, and
the public's need for protection. Id.
at 264-65, 493 N.W.2d at 732. A trial
court erroneously exercises its discretion when it fails to state the relevant
and material factors that influenced its decision, relies on immaterial
factors, or gives too much weight to one sentencing factor in the face of other
contravening considerations. Id.
at 264, 493 N.W.2d at 732. The weight
given to each sentencing factor, however, is left to the trial court's broad
discretion. Id. A trial court exceeds its discretion as to
the length of the sentence imposed "only where the sentence is so
excessive and unusual and so disproportionate to the offense committed as to
shock public sentiment and violate the judgment of reasonable people concerning
what is right and proper under the circumstances." Id.
Here,
the trial court considered the fact that this crime was committed twelve days
after Hayes was placed on probation for another offense, his lengthy criminal
record, his education and employment history, the dangerousness of the offense
and the need to protect the community.
The sentence is not excessively long.
There is no arguable merit to challenging the sentence on appeal.
Hayes'
response also argues that the victim and witness allegations are
"incredible" and that his actions were not disorderly conduct. However, these arguments go to the
sufficiency of the evidence, which is an issue Hayes waived with his plea. See Mack v. State, 93
Wis.2d 287, 293, 286 N.W.2d 563, 566 (1980) (guilty plea waives
non-jurisdictional defects and defenses).
Therefore, there is no arguable merit.
Counsel is relieved of further representing Hayes in this matter.
By
the Court.—Judgment affirmed.