CA Blank Order

Hon. Anthony G. Milisauskas

Circuit Court Judge

Kenosha County Courthouse

912 56th Street

Kenosha, WI 53140

Rebecca Matoska-Mentink

Clerk of Circuit Court

Kenosha County Courthouse

912 56th Street

Kenosha, WI 53140

Colleen Marion

Asst. State Public Defender

735 N. Water Street, #912

Milwaukee, WI 53203

Gregory M. Weber

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857

Robert D. Zapf

District Attorney

Molinaro Bldg.

912 56th Street

Kenosha, WI 53140-3747

James C. Banks

2811 63rd Street

Kenosha, WI 53143-4339

You are hereby notified that the Court has entered the following opinion and order:



	2014AP402-CRNM	State of Wisconsin v. James C. Banks (L.C. # 2013CM818)

Before Neubauer, P.J.[1]

James Banks appeals from a judgment convicting him of disorderly conduct contrary to Wis. Stat. § 947.01(1) (2011-12) as a repeat offender. Banks’ appellate counsel filed a no-merit report pursuant to Wis. Stat. Rule 809.32 and Anders v. California, 386 U.S. 738 (1967). Banks received a copy of the report and was advised of his right to file a response. He has not done so. Upon consideration of the report and an independent review of the record as mandated by Anders and Rule 809.32, we summarily affirm the judgment because there are no issues that would have arguable merit for appeal. Wis. Stat. Rule 809.21.

The no-merit report addresses the following possible appellate issues: (1) whether Banks’ guilty plea was knowingly, voluntarily, and intelligently entered and had a factual basis and (2) whether the circuit court misused its sentencing discretion. We agree with appellate counsel that these issues do not have arguable merit for appeal.

With regard to the entry of his guilty plea, Banks answered questions about the plea and his understanding of his constitutional rights during a colloquy with the circuit court that complied with State v. Hoppe, 2009 WI 41, ¶18, 317 Wis. 2d 161, 765 N.W.2d 794. The record discloses that Banks’ guilty plea was knowingly, voluntarily, and intelligently entered, State v. Bangert, 131 Wis. 2d 246, 260, 389 N.W.2d 12 (1986), and that it had a factual basis, State v. Harrington, 181 Wis. 2d 985, 989, 512 N.W.2d 261 (Ct. App. 1994). Additionally, the plea questionnaire and waiver of rights form Banks signed is competent evidence of knowing and voluntary pleas. State v. Moederndorfer, 141 Wis. 2d 823, 827-29, 416 N.W.2d 627 (Ct. App. 1987). Although a plea questionnaire and waiver of rights form may not be relied upon as a substitute for a substantive in-court personal colloquy, it may be referred to and used at the plea hearing to ascertain the defendant’s understanding and knowledge at the time a plea is taken. Hoppe, 317 Wis. 2d 161, ¶¶30-32. The record reveals that Banks admitted his prior conviction for purposes of his status as a repeat offender. Wis. Stat. § 973.12(1). We agree with appellate counsel that there would be no arguable merit to a challenge to the entry of Banks’ guilty plea.

With regard to the sentence, the record reveals that the sentencing court’s discretionary decision had a “rational and explainable basis.” State v. Gallion, 2004 WI 42, ¶76, 270 Wis. 2d 535, 678 N.W.2d 197 (citation omitted). The court adequately discussed the facts and factors relevant to sentencing Banks to a $100 fine plus court costs. In fashioning the sentence, the court considered the seriousness of the offense and Banks’ current status on extended supervision. State v. Ziegler, 2006 WI App 49, ¶23, 289 Wis. 2d 594, 712 N.W.2d 76. We agree with appellate counsel that there would be no arguable merit to a challenge to the sentence.

In addition to the issues discussed above, we have independently reviewed the record. Our independent review of the record did not disclose any potentially meritorious issue for appeal. Because we conclude that there would be no arguable merit to any issue that could be raised on appeal, we accept the no-merit report, affirm the judgment of conviction, and relieve Attorney Colleen Marion of further representation of Banks in this matter.

Upon the foregoing reasons,

IT IS ORDERED that the judgment of the circuit court is summarily affirmed pursuant to Wis. Stat. Rule 809.21.

IT IS FURTHER ORDERED that Attorney Colleen Marion is relieved of further representation of James Banks in this matter.

[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2). All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.