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COURT OF APPEALS DECISION DATED AND RELEASED June 26, 1996 |
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. 95-0795-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DEAN J. KENTOPP,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Winnebago County:
WILLIAM E. CRANE, Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER CURIAM. Dean
J. Kentopp appeals from a judgment convicting him of arson. The state public defender appointed Attorney
Gregory A. Petit as Kentopp's appellate counsel. Petit served and filed a no merit report pursuant to Anders
v. California, 386 U.S. 738 (1967), and Rule 809.32(1), Stats. Kentopp filed a response. After an independent review of the record as
mandated by Anders, we conclude that any further appellate
proceedings would lack arguable merit.
Kentopp pled no contest
to arson, contrary to § 943.02(1)(a), Stats.[1] The trial court imposed a twenty-year
sentence, to run consecutively to a sentence Kentopp was serving.
The no merit report
addresses whether: (1) there were any nonjurisdictional defects in the
judgment; (2) Kentopp's plea was entered knowingly, intelligently and
voluntarily; (3) the presentence investigation report (PSI) was properly
prepared; (4) the trial court erroneously exercised its sentencing
discretion; and (5) Kentopp received ineffective assistance of trial
counsel. Kentopp raises the sentencing
issues in his response. Although we
agree with appellate counsel's conclusion on each of these issues, we explain
our conclusions on the issues raised by Kentopp.
The prosecutor agreed to recommend a twenty-year
sentence concurrent to that Kentopp was serving because he had cooperated with
the authorities. However, the PSI
recommendation was for a twenty-year consecutive sentence. Kentopp's principal complaint is that the
trial court imposed a consecutive, rather than a concurrent, sentence. However, at the plea and sentencing
hearings, Kentopp expressly admitted to the trial court that he understood that
it was not obliged to follow the prosecutor's sentencing recommendation.
Appellate
counsel advises us that Kentopp objects to the PSI because it is unfair for the
presentence investigator to contact the victim without contacting Kentopp
before making a sentencing recommendation.[2] However, this contention is misleading
because the PSI was merely updated from the previous year when Kentopp was
sentenced for another crime. Because
Kentopp does not assert any factual inaccuracies in the PSI, it would lack
arguable merit to pursue this challenge.
Our review of the
sentence is limited to whether the sentencing court erroneously exercised its
discretion. State v. Larsen,
141 Wis.2d 412, 426, 415 N.W.2d 535, 541 (Ct. App. 1987). The primary factors are the gravity of the
offense, the character of the offender and the need for public protection. Id. at 427, 415 N.W.2d at
541. The weight given to each factor is
within the sentencing court's discretion.
Cunningham v. State, 76 Wis.2d 277, 282, 251 N.W.2d 65,
67-68 (1977). Likewise, it is
discretionary whether to impose consecutive or concurrent sentences for
multiple convictions. See id.
at 284-85, 251 N.W.2d at 69.
The trial court
considered the primary sentencing factors.
In considering the gravity of the offense, the trial court stated that
arson "is probably about as serious as an offense as there can
be." The trial court considered
the character of the offender, his psychological problems and his lengthy
criminal history, including the ten offenses which were read in for sentencing
purposes. The sentencing court also
noted that prior rehabilitation attempts were unsuccessful. The trial court emphasized the need for
public protection because the offense was "extremely serious, life
threatening."
The
trial court applied the appropriate sentencing factors and explained the
aggravating circumstances which support the twenty-year maximum sentence. It noted that it was not bound by sentencing
recommendations and explained that it disagreed with the recommendations to
impose a concurrent sentence because that would result in essentially
"nothing [having] been done."
We agree with counsel's description, conclusion and analysis that
pursuing any appellate issues would lack arguable merit.
We have addressed the
issues Kentopp has raised. Upon our
independent review of the record as mandated by Anders and Rule 809.32(3), Stats., we conclude that there are no other meritorious
issues and that any further appellate proceedings would lack arguable merit. Accordingly, we affirm the judgment of
conviction and relieve Attorney Gregory A. Petit of any further appellate
representation of Kentopp in this appeal.
By the Court.—Judgment
affirmed.