CA Blank Order

Hon. Lindsey Canonie Grady

Circuit Court Judge

Courthouse, Branch 23

901 N 9th Street

Milwaukee, WI 53233

Hon. Mary E. Triggiano

Circuit Court Judge

Children’s Court Center

10201 Watertown Plank Road

Wauwatosa, WI 53226-1425

John Barrett

Clerk of Circuit Court

Room 114

821 W. State Street

Milwaukee, WI 53233

Kaitlin A. Lamb

Assistant State Public Defender

735 N. Water St., Ste. 912

Milwaukee, WI 53202

Karen A. Loebel

Asst. District Attorney

821 W. State St.

Milwaukee, WI 53233

Gregory M. Weber

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857

Francisco Luis 00600987

Stanley Corr. Inst.

100 Corrections Drive

Stanley, WI 54768

Before Hoover, P.J., Mangerson and Stark, JJ.

Counsel for Francisco Luis filed a no-merit report concluding there is no arguable basis for Luis to withdraw his guilty plea or challenge the sentence imposed for second-degree reckless injury, domestic abuse. Luis was advised of his right to respond to the report and has not responded. Upon our independent review of the record as mandated by Anders v. California, 386 U.S. 738 (1967), we conclude there is no arguable basis for appeal.

The complaint charged Luis with aggravated battery-domestic abuse, alleging that he hit Mary R. from behind with a wooden object and kicked her as she laid on the floor, causing her to suffer a fractured foot, lacerations to her ear that required eight stitches and swelling of her brain. The amended information added one count of second-degree reckless injury-domestic abuse. Pursuant to a plea agreement, Luis pled guilty to count two, and count one was dismissed and read in for sentencing purposes. In return for Luis’s plea, the State agreed to recommend a prison term without a specific recommendation as to the length of initial confinement and extended supervision. The court sentenced Luis to three years’ initial confinement and four years’ extended supervision.[1]

The record discloses no arguable manifest injustice upon which Luis could withdraw his guilty plea. See State v. Duychak, 133 Wis. 2d 307, 312, 395 N.W.2d 795 (Ct. App. 1986). The court’s colloquy, supplemented by a plea questionnaire and waiver of rights form, informed Luis of the elements of the offense, the potential penalties and the constitutional rights he waived by pleading guilty. The jury instructions for the offense were attached to the plea questionnaire. Through an interpreter, Luis assured the court that the plea did not result from threats or promises and that he understood that he could be deported as a result of this conviction. As required by State v. Hampton, 2004 WI 117, ¶20, 274 Wis. 2d 379, 683 N.W.2d 14, the court reminded Luis that it was not bound by the parties’ sentence recommendations and could impose the maximum sentence of seven and one-half years’ initial confinement and five years’ extended supervision. The record shows the plea was knowingly, voluntarily and intelligently entered. See State v. Bangert, 131 Wis. 2d 246, 257, 389 N.W.2d 12 (1986).

Although not addressed in the no-merit report, we have also considered whether the plea deal was illusory because a defendant cannot be convicted of both aggravated battery and second-degree reckless injury for a single act. See Wis. Stat. § 939.66(3). Because Luis performed separate acts that inflicted separate and distinct injuries and dangers to the victim, he committed separate volitional acts and was properly charged with two offenses. State v. Eisch, 96 Wis. 2d 25, 39, 291 N.W.2d 800 (1990). The State’s agreement to make no specific sentence recommendation also gave Luis a benefit that renders the plea deal non-illusory.

Our review of the record also discloses no arguable basis for challenging the sentence. The court appropriately considered the seriousness of the offense, Luis’s character, including a prior domestic battery, and the need to protect the public. See State v. Harris, 119 Wis. 2d 612, 623, 350 N.W.2d 633 (1984). The court considered no improper factors and the seven-year sentence is well below the maximum sentence of twelve and one-half years and is not arguably so excessive as to shock public sentiment. See Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975).

Our independent review of the record discloses no other potential issue for appeal. Therefore,

IT IS ORDERED that the judgment is summarily affirmed. Wis. Stat. Rule 809.21 (2011-12).

IT IS FURTHER ORDERED that attorney Kaitlin Lamb is relieved of her obligation to further represent Luis in this matter. Wis. Stat. Rule 809.32(3) (2011-12).

[1] The initial judgment also required Luis to pay a $250 DNA surcharge. The circuit court subsequently vacated that portion of the judgment.



	2013AP2713-CRNM	State of Wisconsin v. Francisco Luis (L. C. #2012CF2885)