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COURT OF APPEALS
DECISION
NOTICE
DATED AND FILED
This opinion is subject to further editing. If
published, the official version will appear in the
bound volume of the Official Reports.
April 9, 1998
A party may file with the Supreme Court a
                                                                                    Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                                    Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                    of Wisconsin              STATS.
No.                                                                                 97-3104-CRNM
STATE OF WISCONSIN                                                                  IN COURT OF APPEALS
                                                                                    DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
NATHANIEL HARRIS,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Dane County:
STUART A. SCHWARTZ, Judge.  Affirmed.
Before Eich, C.J., Dykman, P.J., and Roggensack, J.
PER   CURIAM.    Nathaniel   Harris   appeals   from   a   judgment
convicting him of possession of tetrahydrocannabinols (marijuana) with intent to
deliver, contrary to § 961.41(1m)(h), STATS.   After Harris pleaded no contest to
the charge, the trial court withheld sentence and gave him a three-year term of
probation.




No. 97-3104-CRNM
Harris’s appellate counsel filed a no merit report pursuant to RULE
809.32, STATS., and Anders v. California, 386 U.S. 738 (1967).   The no merit
report addresses whether Harris knowingly, voluntarily and intelligently pleaded
no contest and whether the trial court misused its sentencing discretion.   Harris
received a copy of the report and has filed a response.   Upon consideration of the
report  and  an  independent  review  of  the  record  as  mandated  by  Anders,  we
conclude that there is no arguable merit to any issue that could be raised on appeal.
Therefore, we affirm the judgment of conviction.
Our review of the record discloses that Harris’s no contest plea was
knowingly, voluntarily and intelligently entered.   See State v. Bangert, 131 Wis.2d
246, 260, 389 N.W.2d 12, 20 (1986).   The court confirmed that Harris desired to
plead no contest and that he understood the plea agreement and proposed sentence of
probation.  The  court  confirmed  that  Harris  had  reviewed  and  executed  a  Plea
Questionnaire and Waiver of Rights form and that Harris had adequate time to
consult  with  counsel.     The  court  advised  Harris  of  the  maximum  possible
punishment for this crime, the constitutional rights waived by the no contest plea, the
elements of the crime and that the criminal complaint would form the factual basis
for the plea.   The court clarified “intent to deliver” at Harris’s request, and Harris
confirmed that he desired to plead no contest. The court then accepted Harris’s plea
as having been knowingly, voluntarily and intelligently entered.
Based on the plea colloquy, we conclude that a challenge to Harris’s
no  contest  plea  as  unknowing  or  involuntary  would  lack  arguable  merit.
Furthermore, the plea waived any nonjurisdictional defects and defenses, including
claimed violations of constitutional rights.   See County of Racine v. Smith,  122
Wis.2d 431, 434, 362 N.W.2d 439, 441 (Ct. App. 1984).
2




No. 97-3104-CRNM
We have also independently reviewed the sentence.   Sentencing lies
within the sound discretion of the trial court, and a strong policy exists against
appellate interference with that discretion.   See State v. Haskins, 139 Wis.2d 257,
268, 407 N.W.2d 309, 314 (Ct. App. 1987).  The primary factors to be considered by
the trial court in sentencing are the gravity of the offense, the character of the
offender and the need for protection of the public.   See State v. Harris, 119 Wis.2d
612,  623,  350  N.W.2d  633,  639  (1984).    The court accepted the parties’ joint
recommendation of probation.   During the plea and sentencing hearing, the State
advised the court that it was not seeking jail time because Harris’s health condition
would be burdensome upon the jail to manage.   Although the court did not explicitly
consider  the  sentencing  factors,  the  record  of  the  plea  and  sentencing  hearing
supports the trial court’s exercise of sentencing discretion.
In his response to the no merit report, Harris criticizes counsel for
concluding that an appeal would not have merit.   He argues that the filing of the no
merit report violates his Sixth and Fourteenth Amendment rights.   We disagree.   A
no merit report is a constitutional means of discharging the duty of representation.
See State ex rel. Flores v. State, 183 Wis.2d 587, 605-06, 516 N.W.2d 362, 367
(1994), and the cases cited therein.
Harris’s response largely focuses on what he contends was an illegal
arrest.   The record reflects that trial counsel filed a motion to suppress evidence
arising from the arrest.   However, it appears that the motion was abandoned in favor
of a plea agreement.   See State v. Wilkens, 159 Wis.2d. 618, 624, 465 N.W.2d 206,
3




No. 97-3104-CRNM
209 (Ct. App. 1990).   Because Harris did not litigate his motion to suppress, the
issues raised therein are waived for appeal.1
We  affirm  the  judgment  of  conviction  and  relieve  Attorney
William E. Schmaal of further representation of Nathaniel Harris in this matter.
By the Court.—Judgment affirmed.
1  Had Harris litigated his motion to suppress and lost, he would have preserved the
suppression issue for appeal notwithstanding his no contest plea.  See § 971.31(10), STATS.
4

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