District II
July 22, 2015
To:
Hon. James L. Carlson
Circuit Court Judge
Walworth County Courthouse
P.O. Box 1001
Elkhorn, WI 53121-1001
Sheila Reiff
Clerk of Circuit Court
Walworth County Courthouse
P.O. Box 1001
Elkhorn, WI 53121-1001
Andrew Hinkel
Assistant State Public Defender
P.O. Box 7862
Madison, WI 53707-7862
Daniel A. Necci
District Attorney
P.O. Box 1001
Elkhorn, WI 53121-1001
Gregory M. Weber
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Allan W. Biesterveld, #462853
Redgranite Corr. Inst.
P.O. Box 925
Redgranite, WI 54970-0925
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Allan W. Biesterveld (L.C. #2003CF481) |
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Before Neubauer, P.J., Reilly, and Gundrum, JJ.
Allan W. Biesterveld appeals
from a 2008 judgment resentencing him on his conviction for repeated sexual
assault of the same child. His
appellate counsel has filed a no-merit report pursuant to Wis. Stat.
Rule 809.32 (2013-14),[1]
and Anders
v.
Biesterveld entered a guilty plea to repeated sexual assault of the same child and was sentenced to thirty years’ imprisonment. On appeal the case was remanded for resentencing before a different judge. State v. Biesterveld, No. 2005AP2138-CR, unpublished slip op. at ¶¶1, 19 (WI App Oct. 3, 2007). Biesterveld was resentenced to ten years’ initial confinement and five years’ extended supervision.[2] The sentence was ordered to be served consecutive to a sentence Biesterveld was serving on a Waukesha County conviction. Biesterveld was given credit for 1,364 days.
The no-merit report addresses whether there is any arguably meritorious claim for challenging the sentence. Specifically it considers whether the sentence was the result of an erroneous exercise of discretion, can be considered excessive, or was based on inaccurate information. The report also indicates that there is no suggestion of a new factor that could serve as grounds for seeking sentence modification. This court is satisfied that the no-merit report properly analyzes any challenge as without merit, and this court will not discuss the sentence further.
Biesterveld’s response focuses
on his discontent that under Wis. Stat. § 302.113(4),[3]
he must serve all the confinement time for the consecutive sentences and then
serve all the extended supervision time.
He asserts that he has a meritorious argument that § 302.113(4) is
unconstitutional and violates due process by extending a person’s sentence
beyond that imposed by the court, creating two distinct sentences by delaying
implementation of the extended supervision portion of a sentence, and usurping
the sentencing court’s discretion.[4] He cites the common-law rule repeated in Dunne
v. Keohane, 14 F.3d 335, 336 (7th Cir. 1994), that “unless interrupted by fault
of the prisoner (an escape, for example) a prison sentence runs continuously
from the date on which the defendant surrenders to begin serving it.” However, Dunne recognizes that the stated
rule is not a constitutional command. Id.
at 337. Dunne offers no support
for Biesterveld’s view that § 302.113(4) is unconstitutional.[5] Likewise, the discussion of the delayed
implementation of a jail sentence in People v. Levandoski, 603 N.W.2d
831, 835-37 (Mich. Ct. App. 1999), a case cited by Biesterveld, has no
application and offers no support for a meritorious claim. Moreover, § 302.113(4) has been
considered or applied in State ex rel. Thomas v. Schwarz,
2007 WI 57, ¶47, 300 Wis. 2d 381, 732 N.W.2d 1, State v. Polar, 2014 WI
App 15, ¶13, 352 Wis. 2d 452, 842 N.W.2d 531, State v. Harris, 2011 WI
App 130, ¶9, 337 Wis. 2d 222, 805 N.W.2d 386, and State
v. Collins, 2008 WI App 163, ¶13, 314 Wis. 2d 653, 760
N.W.2d 438,
without any concern about its constitutionality. Biesterveld’s claim that the provision is
unconstitutional lacks merit.
Our review of the record discloses no other potential issues for appeal. Accordingly, this court accepts the no-merit report, affirms the resentencing judgment and discharges appellate counsel of the obligation to represent Biesterveld further in this appeal.
Upon the foregoing reasons,
IT IS ORDERED that the judgment of conviction is summarily affirmed. See Wis. Stat. Rule 809.21.
IT IS FURTHER ORDERED that Attorney Andrew R. Hinkel is relieved from further representing Allan W. Biesterveld in this appeal. See Wis. Stat. Rule 809.32(3).
Diane M. Fremgen
Clerk of Court of Appeals
[1] All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise noted.
[2] Resentencing occurred February 20, 2008. Biesterveld filed a timely notice of intent to pursue postconviction relief requesting the appointment of a state public defender under Wis. Stat. Rule 809.30 but by clerical oversight no information was sent to the public defender’s office. On September 6, 2013, this court extended the time for Biesterveld to pursue Rule 809.30 postconviction relief.
[3] Wisconsin Stat. § 302.113(4) provides, “All consecutive sentences imposed for crimes committed on or after December 31, 1999, shall be computed as one continuous sentence. The person shall serve any term of extended supervision after serving all terms of confinement in prison.”
[4] Biesterveld also suggests that Wis. Stat. § 302.113(4) disparately treats similarly situated persons—that is a person serving a single bifurcated sentence and a person serving consecutive bifurcated sentences. Those persons are not similarly situated and Biesterveld’s claim lacks merit.
[5] Dunne v. Keohane, 14 F.3d 335, 337 (7th Cir. 1994), recognizes that a challenge to the manner in which a sentence is implemented is not a challenge to the judgment of conviction. Even if Dunne had some application, we would question whether Biesterveld’s constitutional challenge is properly made in this appeal from the judgment of conviction.