State v. Schewe, 96-3270-CR-NM
| Decision Date | 15 December 1998 |
| Docket Number | No. 96-3270-CR-NM,96-3270-CR-NM |
| Citation | 223 Wis.2d 798,589 N.W.2d 454 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Kenneth R. SCHEWE, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from an amended judgment and an order of the circuit court for Eau Claire County: ERIC J. WAHL, Judge. Affirmed.
Before Cane, C.J., Myse, P.J. and Hoover, J.
Kenneth R. Schewe appeals from an amended judgment of conviction for first-degree intentional homicide and from those parts of a postconviction order denying his reconsideration motion for suppression and plea withdrawal. The state public defender appointed Attorney Michael P. Wagner as Schewe's appellate counsel. Attorney Wagner filed and served a no merit report pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and RULE 809.32(1), STATS., to which Schewe responded. After an independent review of the record as mandated by Anders, we conclude that further proceedings would lack arguable merit.
Schewe pleaded guilty to first-degree intentional homicide while armed with a dangerous weapon, as a habitual criminal, contrary to §§ 940.01(1), 939.63 and 939.62, STATS. Initially, the circuit court imposed a life sentence without parole eligibility, mistakenly pursuant to § 939.62(2m), STATS. 1 Schewe returned for resentencing, which resulted in parole eligibility in fifty years, pursuant to § 973.014(2), STATS. Schewe sought postconviction relief for: (1) reconsideration of the circuit court's denial of his suppression motion; (2) plea withdrawal for the claimed ineffective assistance of trial counsel; and (3) resentencing. The circuit court held an evidentiary hearing and amended the sentences to run concurrent, but denied the motion in all other respects. 2
In the no merit report, counsel explains why it would lack arguable merit to challenge the circuit court's order denying Schewe's motions for suppression, plea withdrawal and resentencing. Schewe raises these same issues and the ineffective assistance of appellate counsel. Although we independently conclude that all of these issues lack arguable merit, we address them to respond to Schewe's filed response.
Preliminarily, a valid guilty plea waives all nonjurisdictional defects and defenses, including claimed violations of his constitutional rights. 3 See State v. Riekkoff, 112 Wis.2d 119, 122-23, 332 N.W.2d 744, 746-47 (1983). Although we address the substance of these issues incident to our independent Anders review, they also lack arguable merit because Schewe waived them when he pleaded guilty. See Riekkoff, 112 Wis.2d at 122-23, 332 N.W.2d at 746-47.
As a suspect in the murder investigation, Schewe was the target of an investigatory stop. See § 968.24, STATS.; State v. Guzy, 139 Wis.2d 663, 679, 407 N.W.2d 548, 555 (1987). He had threatened to kill the victim several days before the murder, and thereafter, never inquired about the victim, despite their previous close friendship. Considering these circumstances, we independently conclude that it would lack arguable merit to challenge the investigatory stop.
Schewe challenges the seizure of the murder weapon, a shotgun, from the hatchback of his fiancee's car. At the time of the search, Schewe was a passenger in his fiancee's car. Both Schewe and his fiancee objected to the search. During the investigatory stop, Schewe's probation agent advised police to take Schewe into custody on a probation hold. Because custody pursuant to a probation hold is treated as a valid arrest, we independently conclude that it would lack arguable merit to challenge the warrantless search incident to a lawful arrest. See State v. Betterley, 191 Wis.2d 406, 422-23, 529 N.W.2d 216, 222 (1995).
Schewe also contends that he had a reasonable expectation of privacy in his fiancee's car. The circuit court rejected that contention twice. Although the contention is inconsequential because the search was valid incident to Schewe's custody on a probation hold, Schewe's raising it prompts us to address it.
There are several factors which are relevant in determining whether an accused has an expectation of privacy that society is willing to recognize as reasonable. These include whether one has a property interest in the premises, whether one was legitimately on the premises, whether one has complete dominion and control and the right to exclude others, whether one took precautions those seeking privacy take, whether one put the property to some private use, and whether the privacy claim is consistent with historical notions of privacy.
State v. West, 185 Wis.2d 68, 90, 517 N.W.2d 482, 490 (1994) (citations omitted). The circuit court considered the couple's living arrangements, their pooling of income, their joint acquisition of property, and their plans to marry. Both testified that they considered that car, and another, to be "both ours." However, it also considered that the car was titled only to the fiancee, and that she told police that only she drove that car. The circuit court was further dissuaded from Schewe's position because at the time of the investigatory stop he did not have a valid driver's license and when he drove, albeit illegally, his fiancee condoned his use of the other car, not the one which was the subject of this search. It also noted that Schewe did not have complete dominion or control over the car. To challenge the circuit court's ultimate conclusion, that Schewe lacked a reasonable expectation of privacy in the car searched, in light of the circuit court's findings would lack arguable merit.
Schewe also contends that the scope of the search was impermissibly broad because the shotgun was seized from the hatchback, rather than from the passenger part of the car. Before the circuit court, Schewe analogized the hatchback with a locked trunk. However, the circuit court distinguished the car's hatchback from a trunk because it was accessible to the passenger from inside the car. In its decision denying suppression, the circuit court analogized this hatchback to an
old-fashioned station wagon in that the cargo area of the car can be reached either from the passenger seats or through a separate door in the rear of the car. The search of this cargo area would be more akin to a search of the locked glove compartment in Fry, than a separate, locked trunk area of a sedan.
See State v. Fry, 131 Wis.2d 153, 174-80, 388 N.W.2d 565, 574-77 (1986). We independently conclude that a challenge to the scope of the search and seizure of the shotgun from the hatchback of the car owned by Schewe's fiancee, on this record, would lack arguable merit.
Schewe also moved to withdraw his guilty plea for the claimed ineffective assistance of trial counsel. At the Machner hearing, Schewe testified that his trial counsel failed to explain virtually anything to him, specifically the applicability of any lesser included offenses. See State v. Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905, 908 (Ct.App.1979). Schewe's counsel contradicted Schewe. Counsel testified about his experience in criminal cases and the substance of his discussions with Schewe. Contrary to Schewe's testimony, his counsel recalled their discussions on how to approach Schewe's defense, and how Schewe's testimony about contemplating suicide in the murder victim's presence, may have vitiated the element of premeditation. 4 Much of Schewe's testimony was contradicted by the record and on cross-examination. Schewe admitted that had the circuit court imposed the jointly recommended lesser term of parole eligibility, he would not have claimed ineffective assistance. The circuit court also noted Schewe's experience with the court system and his familiarity with plea agreements. The circuit court was presented with two irreconcilable versions of counsel's representation of Schewe. The circuit court found counsel's version credible. The assessment of weight and credibility is uniquely a trial court function, not an appellate function. See In re Estate of Dejmal, 95 Wis.2d 141, 151-52, 289 N.W.2d 813, 818 (1980). We independently conclude that it would lack arguable merit to...
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