Kessler, Brennan and Brash, JJ.
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). 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.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
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.
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.
trial court conducted a plea colloquy with Jones, accepted
Jones's guilty plea, and found him guilty. A presentence
investigation (PSI) report was generated, but per the trial
court's instruction, it did not contain a specific
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.
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. In addition, trial counsel discussed the
fact that Jones had been in a relationship with the victim
and had provided financial support for her.
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.
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.
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 report at sentencing.
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.
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
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
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 ...