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State v. Jones

Court of Appeals of Wisconsin, District I

November 29, 2016

State of Wisconsin
Brandon A. Jones

          Before Kessler, Brennan and Brash, JJ.

         Brandon A. Jones appeals from an amended judgment of conviction for one count of second-degree sexual assault of a child, contrary to Wis.Stat. § 948.02(2) (2013-14).[1] Jones's postconviction/appellate counsel, Daniel P. Murray, has filed a no-merit report pursuant to Wis.Stat. Rule 809.32 and Anders v. California, 386 U.S. 738 (1967). Jones has filed a response.[2]We have independently reviewed the record, the no-merit report, and the response, as mandated by Anders, and we conclude that there is no issue of arguable merit that could be pursued on appeal. We therefore summarily affirm.

         The complaint alleged that twenty-six-year-old Jones had sexual intercourse with a fifteen-year-old girl on three occasions between July 1, 2013, and January 30, 2014. The complaint further stated that Jones had the victim's name tattooed on his chest and had taken the victim to some prenatal doctor's appointments. Jones was charged with one count of second-degree sexual assault of a child.

         Jones entered a plea agreement with the State pursuant to which he pled guilty as charged and the State agreed to recommend an imposed and stayed sentence of five years of initial confinement and five years of extended supervision, with Jones being placed on probation for five years.

         The trial court conducted a plea colloquy with Jones, accepted Jones's guilty plea, and found him guilty.[3] A presentence investigation (PSI) report was generated, but per the trial court's instruction, it did not contain a specific sentencing recommendation.

         At sentencing, the State urged the trial court to follow its sentencing recommendation, noting that the recommendation was designed to be "in part treatment and in part punishment." The State acknowledged that this was Jones's first criminal conviction but also noted that Jones had previously been charged with domestic-violence-related crimes that were dismissed. In addition, the State discussed a recording of a telephone conversation Jones had with his sister when Jones was in jail. In that call, Jones encouraged his sister to talk the victim into having an abortion and said, "[I]f she ain't pregnant, I'm good." When Jones's sister said an abortion could be dangerous and painful because the victim was five months pregnant, Jones asked whether the sister would call the victim and "get her not to come to court." Jones and his sister then had a three-way telephone call with the victim, during which Jones told the victim he was facing fifty years of imprisonment if the baby was his.

         Trial counsel urged the trial court to follow the State's recommendation, except he suggested that the imposed and stayed sentence consist of three years of initial confinement and three years of extended supervision. Trial counsel noted that this sentence would allow Jones to be a contributing father to the victim's child and also to his two other children.[4] In addition, trial counsel discussed the fact that Jones had been in a relationship with the victim and had provided financial support for her.

         The trial court rejected the probation recommendation, stating that Jones "is a predator" and "too much of a danger to the public." It imposed a sentence of five years of initial confinement and five years of extended supervision. It also ordered Jones, a first-time felon, to provide a DNA sample and pay the $250 DNA surcharge.

         At a subsequent restitution hearing, Jones stipulated to pay restitution of $5, 721.70, which included birth costs and financial support for the newborn child. At that hearing, trial counsel told the trial court that DNA testing of the newborn child had confirmed that Jones is the father.

         The no-merit report analyzes two issues: (1) whether Jones's plea was knowingly, intelligently, and voluntarily entered; and (2) whether the trial court imposed an illegal sentence or erroneously exercised its sentencing discretion. This court agrees with postconviction/appellate counsel's description and analysis of the potential issues identified in the no-merit report, and we independently conclude that pursuing those issues would lack arguable merit. We will briefly discuss those issues. We will also address the issues Jones raised in his response, as well as issues related to the DNA surcharge and the trial court's reference to a COMPAS[5] report at sentencing.

         We begin with Jones's plea. There is no arguable basis to allege that Jones's guilty plea was not knowingly, intelligently, and voluntarily entered. See Wis. STAT. §971.08; State v. Bangert, 131 Wis.2d 246, 260, 389 N.W.2d 12 (1986). He completed a plea questionnaire and waiver of rights form, which the trial court referenced during the plea hearing. See State v. Moederndorfer, 141 Wis.2d 823, 827-28, 416 N.W.2d 627 (Ct. App. 1987). Attached to those documents were the applicable jury instructions and an addendum signed by Jones and his attorney that outlined additional understandings, such as the fact that Jones was giving up certain defenses. The trial court conducted a thorough plea colloquy that addressed Jones's understanding of the plea agreement and the charge to which he was pleading guilty, the penalties he faced, and the constitutional rights he was waiving by entering his plea. See § 971.08; State v. Hampton, 2004 WI 107, ¶38, 274 Wis.2d 379, 683 N.W.2d 14; Bangert, 131 Wis.2d at 266-72.

         The trial court referenced the guilty plea questionnaire and the jury instructions, and it also talked about the two elements of the crime. The trial court confirmed with Jones that he knew that although the trial court would listen to the parties' recommendations, there was no "guarantee[d]" sentence, and the trial court would decide what the appropriate sentence was. The trial court stated the maximum sentence that could be imposed, which was up to forty years of imprisonment and a $100, 000 fine. The trial court also discussed with Jones the constitutional rights Jones was waiving, such as his right to a jury trial and his right to testify in his own defense. In addition, the trial court discussed with Jones the fact that he would have to register as a sex offender and could be subject to a Wis.Stat. ch. 980 commitment. Finally, the trial court told Jones the consequences of being a felon, including that he would "have to give a DNA sample and pay a surcharge for that."

         Based on our review of the record, we conclude that the plea questionnaire, waiver of rights form, Jones's conversations with his trial counsel, and the trial court's colloquy appropriately advised Jones of the elements of the crime and the potential penalties he faced, and otherwise complied with the requirements of Bangert and Hampton for ensuring that the plea was knowing, intelligent, and voluntary. The record does not suggest there would be an arguable basis to challenge Jones's plea.

         Next, we turn to the sentencing. We conclude that there would be no arguable basis to assert that the trial court erroneously exercised its sentencing discretion, see State v. Gallion,2004 WI 42, ¶17, 270 Wis.2d 535, 678 N.W.2d 197, or that the sentence was ...

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