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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
September 26, 1996
A party may file with the Supreme Court                                              This opinion is subject to further editing.
a petition to review an adverse decision                                             If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                           appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                                  Official Reports.
No.   96-0971-CR-NM
STATE OF WISCONSIN                                                                   IN COURT OF APPEALS
                                                                                     DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CURTIS DORTCH, JR.,
Defendant-Appellant.
APPEAL from a judgment of the circuit court for Rock County:
J. RICHARD LONG, Judge.  Affirmed.
ROGGENSACK,  J.    Curtis  Dortch  appeals  from  a  judgment
convicting him of three misdemeanors.   Counsel for Dortch has filed a no merit
report pursuant to § 809.32, STATS.   Dortch received a copy of the report, but he
has not responded.    Upon consideration of the report and an independent
review of the record, as mandated by Anders v. California, 386 U.S. 738 (1967),




No.                                                                                    96-0971-CR-NM
this court concludes there is no arguable merit to any issue that could be raised
on appeal.  The judgment of conviction is affirmed.1
BACKGROUND
The State charged Dortch with three misdemeanors:   intentionally
pointing a firearm at another, obstructing an officer and disorderly conduct.
Dortch pled no contest to all three counts.   In exchange for his plea, the State
agreed to recommend that he be sentenced to time served.   However, the trial
court withheld sentence and placed Dortch on probation for three years.   As a
condition of probation, it required Dortch to serve nine months in jail.   The trial
court provided that Dortch could be released early from his jail term, if he
completed the Rock County Education and Criminal Addictions Program.
DISCUSSION
Scope of Review.
When an appeal has been filed and a no merit report submitted by
defendant's  counsel,  this  court  examines  the  report  and  conducts  an
independent review of the record to determine whether there are any issues
which have arguable merit.  Anders, 386 U.S. at 744.
Dortch's  counsel  has  addressed  whether  Dortch's  plea  was
knowingly, voluntarily and intelligently given and whether Dortch's sentence
was too severe for the crimes charged.   This court reviews the record de novo to
determine whether the procedure used by the trial court in accepting the plea
was sufficient.   State v. Bangert, 131 Wis.2d 246, 286, 389 N.W.2d 12, 31 (1986).
However, sentencing is within the sound discretion of the trial court and will
not be overturned on appeal absent an abuse of discretion.   State v. Kennedy,
190 Wis.2d 252, 257, 528 N.W.2d 9, 11 (Ct. App. 1994).
1  This appeal is decided by one judge pursuant to § 752.31(2)(f), STATS.
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No.                                                                                     96-0971-CR-NM
Dortch's Plea.
In a case such as this, before a plea of no contest can be accepted,
the trial court must determine:                                                         (1) the extent of the accused's education and
general ability to comprehend; (2) the accused's understanding of the nature of
the crimes charged and the potential punishments the court could impose; (3)
the  accused's  understanding  of  the  constitutional  rights  he  is  waiving;  (4)
whether either promises or threats were made to the accused to obtain his plea;
and  (5) whether a factual basis existed to support convictions of the crimes
charged.   State v. Bangert, 131 Wis.2d at 266-72, 389 N.W.2d at 22-25 (1986).   A
proper inquiry by the trial court ensures that defendants enter their pleas
knowingly, intelligently and voluntarily.  Id.
Dortch cannot successfully withdraw his plea because the trial
court's inquiries established he knowingly, intelligently and voluntarily pled no
contest.   Before accepting the plea, the trial court established that Dortch had
sufficient  intelligence  and  education  to  understand  the  proceedings.    And,
although it did not detail each constitutional guaranty, it did engage in a
sufficient colloquy with Dortch to establish that by signing the waiver form, he
knew he was waiving his constitutional rights.   The trial court also established
that the plea had been agreed to without a threat made or a promise given, and
that  Dortch  understood  the  nature  of  the  crimes  charged,  including  the
potential  punishments  the  trial  court  could  impose.    The  trial  court  also
established that there was an independent factual basis to support Dortch's
convictions of the crimes charged.   The trial court followed Bangert's mandate.
Dortch's pleas were properly accepted.
Dortch's Sentence.
Sentencing  is  a  discretionary  determination  by  the  trial  court.
McCleary v. State, 49 Wis.2d 263, 278, 182 N.W.2d 512, 520 (1971).  A trial court
properly exercises its sentencing discretion if the sentence is not excessive; it
relies on the proper factors; and the correct legal standards are applied.  State v.
Krueger, 119 Wis.2d 327, 336-37, 351 N.W.2d 738, 743 (Ct. App. 1984).  This court
presumes the trial court acted properly in sentencing Dortch, and the burden is
on Dortch to prove otherwise.  Id.
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No.                                                                                    96-0971-CR-NM
In sentencing Dortch, the trial court commented on the seriousness
of  pointing  a  loaded  gun  at  another person,  and  it  took  note  of  Dortch's
previous misdemeanor conviction and his juvenile record.   The trial court also
considered Dortch's level of education and lack of work history.   Thereafter, it
concluded that sentencing Dortch to time served would not sufficiently deter
him from future criminal activity.   These are proper factors for the court to
consider.
Additionally, the sentence falls within the statutory limits.    A
defendant convicted of three misdemeanors may be placed on three years
probation.   Section 973.09(2)(a)2, STATS.   The court may impose reasonable and
appropriate conditions of probation, §   973.09(1), STATS., including a jail term of
up to one year.   Section 973.09(4), STATS.   The trial court properly exercised its
discretion.  See Kennedy, 190 Wis.2d at 257, 528 N.W.2d at 11.
Appellate  counsel's  review  of  the  record  disclosed  no  other
potentially meritorious issues.  This court's independent review of the record, as
mandated by Anders, demonstrates there are no issues arguable on their merits,
and any further proceedings would be frivolous.   Accordingly, the judgment of
conviction  is  affirmed  and  Dortch's  counsel  is  relieved  of  any  further
representation of Dortch.
By the Court.—Judgment affirmed.
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