|
COURT OF
APPEALS DECISION DATED AND
RELEASED January
10, 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(1), Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-1040-CR-NM
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
DAVID
A. SELL,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Manitowoc County: FRED H. HAZLEWOOD, Judge. Affirmed.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
PER
CURIAM. David A.
Sell appeals from a judgment of conviction for delivery of cocaine as a repeat
offender. Sell's appellate counsel has
filed a no merit report pursuant to Rule
809.32, Stats., and Anders
v. California, 386 U.S. 738 (1967).
Sell received a copy of the report and has filed a lengthy
response. Upon consideration of the
report, a complete reading of Sell's various submissions, and an independent
review of the record, we conclude that there is no arguable merit to any issue
that could be raised on appeal.
Sell
was charged with possession of marijuana and drug paraphernalia as a result of
a search of his residence on January 27, 1994, and with the delivery of cocaine
and the knowing use of a child for the delivery of a controlled substance as a
result of a transaction with a police facilitator, Frankie Chiszar, on March
15, 1994. On December 2, 1994, Sell
entered a no contest plea to the delivery charge. The marijuana possession and use of a child in delivery charges
were dismissed and read in at sentencing.[1] As part of the plea agreement, charges of
conspiracy to deliver cocaine and heroin in a subsequently filed complaint were
also dismissed and read in at sentencing.
Sell was sentenced to nine years in prison consecutive to the sentence
he was then serving.
The
first issue discussed in the no merit report is whether the plea
was properly, voluntarily and intelligently made. The Constitution requires that a no contest
plea be affirmatively shown to be knowing, voluntary and intelligent. State v. Bangert, 131 Wis.2d
246, 260, 389 N.W.2d 12, 20 (1986).
Section 971.08(1)(a), Stats., mandates
that when accepting a plea, a trial court must address the defendant personally
to determine that the plea is made voluntarily with an understanding of the
nature of the charge and the potential punishment if convicted. We have independently reviewed the record to
determine whether the colloquy between Sell and the trial court met the
requirements of § 971.08 and Bangert. We conclude that it did.
Sell
specifically argues that he was threatened to enter the plea. He asserts that the prosecutor informed his
trial counsel that if Sell required the charges to go to trial, the prosecutor
would make sure Sell received sixty-six years and would file additional charges
on other matters. A letter from Sell to
the trial court dated July 27, 1994, tends to substantiate Sell's contention as
a contemporaneous record of what his trial counsel told him.[2] If the prosecutor commented that a greater
sentence might result if the matter was taken to trial, it was a fair
representation because Sell's exposure was greater on the three charges
than on the one to which the plea was entered.
Moreover, Sell was specifically asked at the plea hearing whether any
threats had been made which caused him to enter into the plea agreement. Sell replied, "No." Sell entered his plea despite what he
characterizes as a threat. Nothing
suggests that the plea was entered involuntarily.
A
guilty or no contest plea, voluntarily and understandingly made, constitutes a
waiver of nonjurisdictional defects and defenses, including claims of
violations of constitutional rights prior to the entry of the plea. Mack v. State, 93 Wis.2d 287,
293, 286 N.W.2d 563, 566 (1980). Sell
has waived any claim regarding the prosecutor's alleged threat.
Having
determined that there is no arguable merit to a claim that Sell's plea was
invalid,[3]
we turn to a number of Sell's contentions which lack merit because waived by
the entry of the no contest plea. Sell
claims that he was a victim of entrapment or illegal inducement. That was a defense known to Sell at the time
he entered his plea. He waived it.
Sell
argues that statements were illegally obtained by the police because he was
under the influence of drugs and alcohol when questioned by the police, his
request for an attorney during questioning was not honored, and he was forced
to sign the statements and was put under duress. Sell also contends that he was illegally taken from his car
without the reading of Miranda rights, that there was twice an
illegal search of the little girl who accompanied Sell, and that there was
illegal entry into the home of Sell's brother where the little girl was
delivered after Sell's arrest.
An
exception to the rule that a no contest plea constitutes a waiver of
nonjurisdictional defects and defenses permits review of trial court orders
denying motions to suppress evidence or determining that statements of the
defendant are admissible into evidence.
See § 971.31(10), Stats. Sell filed pro se motions to suppress
evidence. These motions were
voluntarily withdrawn by Sell at a hearing at which he was represented by
counsel.[4] The trial court was never asked to rule on
the suppression of evidence. Therefore,
the alleged illegal seizure of evidence and illegality of Sell's statements
were waived by the entry of Sell's plea.
Further,
there is no merit to a claim that Sell's plea was unknowingly entered because
it was entered before a ruling on motions to suppress evidence. At the plea hearing, Sell was advised by the
trial court that his statements were potentially subject to being excluded from
evidence. Sell was asked whether he
understood that by entry of his plea he was giving up the right to have the
trial court determine the prosecution's ability to use statements against him. Sell replied that he understood.
Sell
makes numerous claims about potential error at his preliminary hearing. As the no merit correctly points out, Sell's
plea waived potential errors and after conviction there is no remedy for errors
at a preliminary hearing. See State
v. Webb, 160 Wis.2d 622, 628, 467 N.W.2d 108, 110, cert. denied,
502 U.S. 889 (1991) (holding that if alleged errors at a preliminary hearing
were not pursued in an interlocutory appeal, there would be a waiver of the
right to obtain postconviction relief for the alleged error). However, because Sell suggests that trial
counsel was ineffective for failing to seek review of the potential errors or
for failing to advise Sell of the necessity of doing so, we will address his
contentions.
The
first is that trial counsel was ineffective at the preliminary hearing for
proceeding with a conflict of interest and for not calling witnesses on Sell's
behalf. At the beginning of the
preliminary hearing, Sell's retained attorney was advised by the prosecutor
that another attorney in his firm had been appointed to represent Chiszar, the
prosecution's key witness, in unrelated proceedings. The record is clear that up to that point Sell's attorney had no
knowledge of the firm's representation of Chiszar and that the attorney had
never had any contact with Chiszar.
To
demonstrate the denial of the right to counsel because of a conflict of
interest due to counsel's representation of multiple defendants, a defendant
must show that counsel actively represented conflicting interests. State v. Kaye, 106 Wis.2d 1,
9, 315 N.W.2d 337, 340 (1982). The
trial court found that Sell's attorney did not possess any information from
either Sell or Chiszar that was imparted only by virtue of the attorney-client
relationship or from which an advantage could be gained for one at the expense
of another. It determined that the
preliminary hearing could go forward with Sell being represented by the
attorney of his choosing and that the conflict could be resolved later. Sell's attorney conducted proper cross-examination
of Chiszar at the hearing. There is no
arguable merit to a claim that Sell was prejudiced, and thereby denied the
effective assistance of counsel at the preliminary hearing by the
representation by counsel who had a potential conflict of interest.[5]
Sell's
contention that counsel performed deficiently at the preliminary hearing by not
calling witnesses or impeaching Chiszar by prior convictions is also without
merit. Credibility is not an issue at a
preliminary hearing. State v.
Dunn, 121 Wis.2d 389, 397, 359 N.W.2d 151, 154 (1984). At a preliminary hearing the court is to
ascertain the plausibility of a witness's story and whether, if believed, it
supports a bindover. Id.
Chiszar's
credibility was not at issue at the preliminary hearing. Sell's repeated assertions that Chiszar lied
at various points in his testimony, that he had prior convictions, and that he
had arrest warrants outstanding which provided a motive to fabricate and assist
the police are without consequence. The
same is true of Sell's contention that he had "a few good witnesses that
really could of helped" him.
Whether those witnesses would have provided an explanation for Sell's involvement
in the transaction with Chiszar does not matter. Chiszar's and the police officers' testimony and the reasonable
inferences drawn therefrom support the conclusion that Sell probably committed
a felony. Even if counsel had presented
Sell's witnesses and the accounts of Sell's assistance to police officers,
which Sell characterizes as exculpatory evidence, the result at the preliminary
hearing would not have been different.
Sell
argues that the trial court improperly refused to admit a letter from Chiszar
which explained that Sell had been set up and that the drugs Sell delivered
were really Chiszar's and the payment was for another debt. Sell attaches a copy of the letter to
several components of his response to the no merit report. The letter appears of dubious origin. It is undated, typed and does not even
contain the handwritten signature of Chiszar.
It is addressed to "To Whom It May Concern" and has the
notation across the top, "Would you please give this to Dave Sell socila
[sic] worker." It appears that the
letter was transmitted by facsimile to the Green Bay Correctional Institution
on July 21, 1994.
It
is not clear in the record that the letter was ever offered to the trial court
for admission and that the trial court refused to admit it. In the event the letter was available before
the preliminary hearing, it only went to Chiszar's credibility—a matter not an
issue at the preliminary hearing. If
Sell was aware of the letter prior to the entry of his plea, he chose to enter
the plea despite the potentially impeaching evidence and a waiver has occurred.[6] Finally, if the letter did not surface until
after Sell's conviction, it does not constitute newly discovered evidence
entitling Sell to withdraw his plea.
The explanation in the letter is consistent with Sell's version of the
transaction—a version Sell chose to abandon by entry of his plea. Further, newly discovered evidence is
relevant only whether there has actually been a trial. Even if applicable to a decision to enter a
no contest plea, discovery of new evidence which merely impeaches the
credibility of a witness is not a basis for relief on that ground alone. See Simos v. State, 53
Wis.2d 493, 499, 192 N.W.2d 877, 880 (1972).
There is no arguable merit to any potential claim related to Chiszar's
letter.
Before
addressing the final issue discussed by the no merit report, we briefly touch
upon contentions Sell makes in passing.
Sell claims that his right to a speedy trial was violated. The record does not demonstrate that a
demand for a speedy trial was made.
Although Sell contends that one of his early trial attorneys was
ineffective for failing to file a motion for a speedy trial,[7]
Sell waived his speedy trial right by entry of his plea. Sell also remarks that trial counsel was
ineffective for failing to file motions for discovery and to test the legality
of the complaint. Discovery motions
were filed and discovery was had. Sell
filed motions challenging the complaint which were withdrawn on the advice of
counsel that they lacked merit. There
is no arguable merit to a claim that trial counsel failed to file appropriate
pretrial motions.
Sell
asserts that "states are bound to schedule controlled substances in the
same manner as the substances are scheduled by the federal government unless
the states give notice of objection to the federal scheduling of a given
substance." He suggests that
jurisdiction was lacking because the trial court did not give notice of
objection. There is no merit to this
claim as a jurisdictional impediment.
Sell
also argues that the subsequently filed conspiracy complaint was made up and
that hearsay was the only evidence at the preliminary hearing on the charges in
that complaint. Those charges were
dismissed and are not before this court.
Sell's complaint that the trial court would not let him file a civil
complaint against the police is also not properly raised in this appeal from
his criminal conviction.
The
final question is whether there would be arguable merit to a challenge to the
sentence. Appellate counsel concludes,
and we agree, that the trial court properly exercised its sentencing
discretion. The trial court relied on
the basic factors it should consider in imposing a sentence: the gravity of the
offense, the character of the offender and the need for protection of the
public. State v. Stuhr,
92 Wis.2d 46, 49, 284 N.W.2d 459, 460 (Ct. App. 1979). Further, the trial court gave due
consideration to the points Sell argues mitigate against the stiff sentence he
received—the fact that he was set up to participate in the transaction and that
the child was not really used in the deal.
The trial court explained, however, that Sell was ultimately responsible
for his participation in the transaction.
Given Sell's lengthy criminal record and prior failed attempts at
rehabilitation, the trial court concluded that a long sentence was justified.
Sell
argues that the trial court did not sentence in accordance with the sentencing
guidelines. There is no right to appeal
on the ground that the sentence imposed does not fall within the sentencing
guidelines. See State v. Elam,
195 Wis.2d 683, 685, 538 N.W.2d 249, 250 (1995). The sentence imposed here was at the upper range of that
recommended by the sentencing guidelines.
Sell
contends that the sentence was unduly harsh given that he was set up. We have already noted that the trial court
considered the circumstances of the crime.
Further, Sell could have received a sentence of up to twenty years
because of his habitual criminality. We
cannot conclude that the nine-year sentence is unduly harsh or excessive. Sell's contention is nothing more than
unhappiness with the sentence. One
cannot test the court's sentence and then seek to retreat from it when unhappy
with the result. See Farrar
v. State, 52 Wis.2d 651, 661-62, 191 N.W.2d 214, 219-20 (1971).
The
no merit report addresses Sell's contention that he was not given sentence
credit for the year he sat in jail awaiting trial. Sell was imprisoned following the revocation of parole on earlier
offenses. He was not entitled to
sentence credit.
Finally,
Sell contends that he is entitled to a sentence reduction because of his
subsequent aid to authorities by testifying as a prosecution witness at a
preliminary hearing concerning an alleged sexual assault in Clark County. As the no merit report discusses, a new
factor justifying sentence modification must be an event or development that
frustrates the purpose of the original sentence. State v. Johnson, 158 Wis.2d 458, 466, 463 N.W.2d
352, 356 (Ct. App. 1990). Sell's
subsequent cooperation with prosecuting authorities is not related to the
principle factors the trial court relied on in imposing the lengthy
sentence. We agree with appellate
counsel's assessment that there is no arguable merit to a motion for sentence
modification based on Sell's testimony in the Clark County case.
Based
on an independent review of the record, we find no basis for reversing the
judgment of conviction. Any further
appellate proceedings would be without arguable merit within the meaning of Anders
and Rule 809.32, Stats.
Accordingly, the judgment of conviction is affirmed, and Attorney Robert
T. Ruth is relieved of any further representation of Sell in this appeal.
By
the Court.—Judgment affirmed.
[3] Sell makes a
one-sentence reference to the potential claim that there was an inadequate
factual basis for the charge of using a child in the delivery of a controlled
substance. The complaint alleged that
Sell gave the buy money to the child with the intent of having her deliver it
as payment to his drug source. The
charge was dismissed and we need not consider whether the complaint provided an
adequate factual basis.
[4] We concur with
trial counsel's assessment that Sell's motions to suppress lacked merit and
that Sell did not have standing to raise some of his challenges.
[5] To prevail on a
claim of ineffective assistance of counsel, a defendant must prove: (1) that his or her counsel's action
constituted deficient performance, and (2) that the deficiency prejudiced his
or her defense. State v. Hubanks,
173 Wis.2d 1, 24-25, 496 N.W.2d 96, 104 (Ct. App. 1992), cert. denied,
114 S. Ct. 99 (1993).