State v. Wanta
| Decision Date | 04 February 1999 |
| Docket Number | No. 98-0318-CR,98-0318-CR |
| Citation | 224 Wis.2d 679,592 N.W.2d 645 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Leo E. WANTA, Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of James M. Shellow and Craig W. Albee of Shellow, Shellow & Glynn, S.C. of Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, William C. Wolford, assistant attorney general, and Sally L. Wellman, assistant attorney general.
Before VERGERONT, ROGGENSACK and DEININGER, JJ.
Leo Wanta appeals from his conviction of two counts of intentionally filing false and fraudulent Wisconsin individual income tax returns with intent to evade the income tax due in violation of § 71.83(2)(b)1., STATS., and
four counts of intentionally concealing property upon which levy was authorized with the intent to evade the collection of taxes in violation of § 71.83(2)(b)3. Wanta claims that his conviction should be overturned for the following reasons: (1) Section 971.14(4)(b), STATS., unconstitutionally requires proof of incompetence by clear and convincing evidence when an accused claims he is competent; (2) the evidence does not support his convictions; (3) venue was improperly maintained in Dane County; (4) the circuit court failed to give the jury sufficient instructions to afford him a fair trial; (5) he was denied the effective assistance of counsel; (6) he was denied counsel of his choice; and (7) he has paid the amount owed. We conclude that no appealable error was committed and therefore, we affirm.
In 1988, Wanta allegedly kept money he received in the name of a corporation he controlled, New Republic/USA Financial Group, Ltd. (New Republic), and made payments from the corporate accounts for his own benefit. The Department of Revenue (DOR) suspected that Wanta used the New Republic name to avoid collection of outstanding tax warrants against him for the back taxes of Falls Vending Company, a company with which Wanta had been associated in the early 1980's.
DOR received Wanta's 1988 and 1989 state tax returns in June 1991. The 1988 return contained no entry for federal adjusted gross income. Wanta attached federal form 4868 to his state return. On line one of form 4868, Wanta entered a "0" to indicate his federal tax liability for 1988. Wanta's 1989 state tax return contained a dash on the line designated as federal adjusted gross income. Wanta and his wife signed all of the returns, indicating that the information was "true, correct and complete."
On May 8, 1992, the State charged Wanta with two counts of filing false tax returns to evade 1988 and 1989 taxes and with four counts of concealing property upon which levy was authorized. Prior to the preliminary hearing, because the issue of Wanta's competency had been raised, the court ordered a competency evaluation which was completed by Dr. Parikh. At the first competency hearing held on March 10, 1994, Wanta asserted that he was competent. Dr. Parikh's report, which concluded that Wanta was competent, was presented, and both Wanta's attorney and the State waived the presentation of additional evidence regarding competency. The circuit court found Wanta competent to stand trial.
On June 22, 1994, two weeks prior to the then scheduled trial date, Wanta's second attorney, John Chavez, filed a motion to withdraw as counsel. The court denied the motion, reasoning that it would not release Chavez until the court was certain that successor counsel had been secured.
On June 24, 1994, the court ordered a second competency evaluation, after Chavez filed a motion asserting that Wanta was unable to assist in his own defense. At the second competency hearing on July 13, 1994, Dr. David Mays concluded that Wanta was incompetent. Dr. Mays noted Wanta's grandiose and unbelievable claims and doubted whether Wanta could "transcend his delusional disorder to the extent that he is able to work with his attorney to provide a plausible defense to present in court." Because Wanta again asserted that he was competent, the court noted that the State bore the burden of proving his incompetence by clear and convincing evidence. The next day the court found Wanta incompetent and ordered him committed to the Wisconsin Department of Health and Social Services (DHSS) 1, pursuant to § 971.14(5), STATS.
On November 4, 1994, the court held a third hearing on competency, at which Wanta again claimed he was competent; Dr. Mays again testified that in his opinion Wanta was not competent. The court again found Wanta incompetent and continued his commitment. On February 3, 1995, the court held a fourth competency hearing.
Prior to the hearing, the court, counsel for the State and counsel for Wanta all had received a report from Dr. Lee, who had recently examined Wanta. Both the State and Wanta's attorney waived the opportunity to present additional evidence. Wanta continued to maintain he was competent. Relying on an evaluation letter from Dr. Lee, who was of the opinion that Wanta could appreciate the charges against him, assist in his own defense, and if found guilty, understand the consequences, the court found Wanta competent to proceed to trial, thereby releasing him from commitment to DHSS.
On May 2, 1995, the court heard another motion to withdraw filed by Chavez and a motion from Attorney Steven Epstein conditionally requesting to be substituted as Wanta's counsel, if the court would reschedule the trial date to give Epstein time to prepare. The court denied both motions.
On May 8, 1995, Wanta's four-day trial commenced. DOR agent Dennis Ullman testified for the State. Using a simple method of showing actual payments to or on behalf of Wanta from a New Republic bank account, Ullman demonstrated that Wanta had taxable income in 1988 and 1989. Wanta was the only defense witness. He testified that he never intentionally filed fraudulent tax returns; that he had no income between 1986 and 1989, but survived by borrowing and selling personal property; that money received and vehicles purchased were for his business; that he was not a resident of Wisconsin in 1989; and that he was not liable for the Falls Vending taxes because he was not the owner of the company. Wanta's testimony also included grandiose and unbelievable claims.
The jury convicted Wanta on all six counts. On September 20, 1995, Wanta's new attorney, Epstein, again expressed concern about Wanta's competency, even though Wanta still asserted that he was competent. The court ordered a fifth competency evaluation. On October 27, 1995, a competency hearing was held and the court admitted the reports of Doctors Van Rybroek, Friedman and Treffert. No other evidence was presented. On October 30, 1995, the court issued an opinion concluding that Wanta was competent.
On November 20, 1995, the court sentenced Wanta to two years in prison on Counts 3 through 6, to run consecutively, for a total of eight years and imposed a six-year consecutive probation sentence on Counts 1 and 2. On June 3, 1996, the court ordered Wanta to reimburse the State Public Defender $4,167.64 for the cost of legal representation. The court also ordered Wanta to pay restitution of $24,900.91, which did not include Wanta's payment of $14,129 applied to a civil fraud penalty. On January 23, 1998, the court reduced the total restitution to $14,128.10 because the original amount erroneously included interest. The court denied Wanta's postconviction motions, and this appeal followed.
Standard of Review.
This case presents several questions reviewed under various standards. We review challenges to the sufficiency of the evidence necessary to support a verdict de novo, applying the same standards as the circuit court. In re Paternity of Lily R.A.P., 210 Wis.2d 132, 140, 565 N.W.2d 179, 183 (Ct.App.1997). We will not reverse a verdict unless, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the State, there is no credible evidence to sustain a finding of guilt beyond a reasonable doubt. See § 805.14(1), STATS.
In contrast, we review challenges to the constitutionality of a statute without deference to the decision of the circuit court. State v. Smith, 215 Wis.2d 84, 90, 572 N.W.2d 496, 497 (Ct.App.1997).
Whether counsel's actions constitute ineffective assistance is a mixed question of law and fact. State ex rel. Flores v. State, 183 Wis.2d 587, 609, 516 N.W.2d 362, 368-69 (1994) (citing Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The circuit court's findings of fact will not be reversed, unless they are clearly erroneous. State v. Pitsch, 124 Wis.2d 628, 634, 369 N.W.2d 711, 714-15 (1985); § 805.17(2), STATS. However, ultimately Whether a factual basis exists for appointing new counsel is within the discretion of the circuit court. State v. Kazee, 146 Wis.2d 366, 371, 432 N.W.2d 93, 96 (1988). It is also within the circuit court's discretion to order restitution. State v. Monosso, 103 Wis.2d 368, 378, 308 N.W.2d 891, 896 (Ct.App.1981). When we review a discretionary decision, we examine the record to determine if the circuit court logically interpreted the facts, applied the proper legal standard, and used a demonstrated rational process to reach a conclusion that a reasonable judge could reach. State v. Keith, 216 Wis.2d 61, 69, 573 N.W.2d 888, 892-93 (Ct.App.1997).
whether counsel's conduct violated Wanta's right to effective assistance of counsel is a legal determination, which this court decides without deference to the circuit court. State v. (Oliver) Johnson, 133 Wis.2d 207, 216, 395 N.W.2d 176, 181 (1986).
Competency.
Wanta contends that when a defendant claims to be competent at the start of an evidentiary hearing...
To continue reading
Request your trial
-
State v. Hager (In re Commitment of Hager)
...which would be constitutional." State v. Cole, 2003 WI 112, ¶ 30, 264 Wis. 2d 520, 665 N.W.2d 328 (quoting State v. Wanta, 224 Wis. 2d 679, 690, 592 N.W.2d 645 (Ct. App. 1999) ).16 ¶ 21 Carter alleges that his counsel was ineffective for failing to contest the application of Act 84 to his d......
-
State v. Cole
...that there are no possible applications or interpretations of the statute which would be constitutional." State v. Wanta, 224 Wis. 2d 679, 690, 592 N.W.2d 645 (Ct. App. 1999). Cole asserts that the CCW statute is facially unconstitutional for two reasons: 1) because the amendment and the st......
-
Carlson v. Jess
...whether the request implicates the right to choice of counsel). 6. The court may have been attempting to follow State v. Wanta, 224 Wis.2d 679, 703, 592 N.W.2d 645 (Ct.App.1999) in which the Wisconsin Court of Appeals found that "[m]ere disagreement over trial strategy does not constitute g......
-
Mayo v. Wis. Injured Patients & Families Comp. Fund
...in ordinary civil cases. See Kruse v. Horlamus Indus., Inc., 130 Wis. 2d 357, 362–63, 387 N.W.2d 64 (1986) ; State v. Wanta, 224 Wis. 2d 679, 693, 592 N.W.2d 645 (Ct. App. 1999). It requires the trier of fact to determine the existence of a fact "to a reasonable certainty by the greater wei......