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COURT OF APPEALS DECISION DATED AND RELEASED |
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June 26, 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. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS DISTRICT IV |
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State
of Wisconsin,
Plaintiff-Respondent, v. David
L. Viney,
Defendant-Appellant. |
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APPEAL from a judgment of the circuit court for Rock County: RICHARD T. WERNER, Judge. Affirmed.
EICH,
C.J.[1] David L. Viney appeals from a judgment of
conviction resulting from no contest pleas to operating a motor vehicle while
intoxicated (OWI) (sixth offense) and with a prohibited blood-alcohol content
and operating after revocation (OAR) (fourth offense), contrary to
§§ 346.63(1)(b), 346.63(1)(a), and 343.44(1), Stats. Other charges
were dismissed pursuant to a plea agreement.
Glenn L. Cushing, assistant state public defender, was appointed to
represent Viney on appeal. Attorney
Cushing has filed a no merit report with this court, pursuant to Anders
v. California, 386 U.S. 738 (1967), and Rule 809.32, Stats., and reports that a copy has
been sent to Viney. In compliance with Anders,
both Attorney Cushing and this court informed Viney that he could respond to
the report, and he has done so. After
an independent review of the record as mandated by Anders, we
conclude that any further proceedings in this matter would be wholly frivolous
and without arguable merit.
Viney pled no contest
after his driving record and blood-alcohol test results were entered into the
record. The trial court sentenced him
to a one-year jail term for the OWI conviction and ninety days concurrent for
the OAR conviction. The court
specifically rejected Huber privileges, finding that Viney had a history of
missing court appearances. The factors the court considered in determining the
sentencing period included Viney’s long history of driving offenses, as well as
lengthy history of other crimes.
The no merit report
addresses whether Viney made the plea knowingly, intelligently and voluntarily,
and whether the trial court erroneously exercised its discretion in
sentencing. We agree with counsel that
there is no merit to any argument based on these issues. Our independent review of the record reveals
that it contains sufficient evidence to support the conviction, and that there
are no other potential issues for appeal.
We specifically reject
Viney’s argument that the court abused its discretion in denying him Huber
privileges. Viney argues that the
record does not support the court’s finding that he was not a good risk to
appear in jail after daily releases because he had demonstrated a failure to
appear for court appearances. Although
Viney contends that his various failures to appear in court result from
miscommunication with trial counsel, our independent review of the record
reveals that on at least one occasion, Viney appeared in open court, was personally
told on the record that the case was continued for 1:30 p.m. that afternoon,
yet Viney failed to reappear. On the
record the next day, Viney confessed that he knowingly missed the continuance
time and expected to be picked up on the warrant he knew would issue. We therefore reject Viney’s argument that
the circuit court misstated the record concerning Viney’s failure to honor
court appearance dates.
We conclude that any
further appellate proceedings would be wholly frivolous and without arguable
merit, within the meaning of Anders, as well as Rule 809.32, Stats. Accordingly,
Viney’s conviction is affirmed, and we grant Attorney Cushing’s motion to
withdraw from further representation before this court.
By the Court.—Judgment affirmed.