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Complaint – Sufficiency; Standard of Review – Transcripts not in Record

State v. Michael L. Gengler, 2010AP1999, District 2, 4/6/11

court of appeals (1-judge, not for publication); pro se; case activity

¶6        The trial court determined that the complaint and the amended complaint were proper, stating,

The complaint was duly sworn on oath.  The complaint was signed and filed by an assistant district attorney as prescribed by WIS. STAT. § 968.02(1).  The complaint alleges multiple violations of WIS. STAT. § 71.83(2)(a)1. and alleges facts to support probable cause of the charges.

After independently reviewing the complaint, we agree with the trial court.  The defendant was named, the crime and punishments were defined and facts constituting the offense charged were presented.  See WIS. STAT. § 968.01.  Further, the DOR agent provided the affidavit which was the basis for the complaint.  On the strength of this affidavit, made under oath, the assistant district attorney signed and filed it.  The complaint is proper.

¶7        Before we discuss the remaining issues, we are compelled to briefly address the state of the appellate record.  As we noted above, Gengler has not provided us with any transcripts.  Our supreme court, in Austin v. Ford Motor Co., 86 Wis. 2d 628, 641, 273 N.W.2d 233 (1979), addressed the proper appellate standard of review in cases where the appellant has provided no transcripts in the record. The Austin court stated that “[b]ecause neither party has furnished a transcript, we are obliged to accept the trial court’s statement of facts as a verity.” Id. at 634.  “While the court can consider errors of law revealed in a trial court memorandum, the court will assume, in the absence of a transcript, that every fact essential to sustain the trial judge’s exercise of discretion is supported by the record.”  Id. at 641.  Austin guides our analysis of remaining issues in this appeal unless otherwise noted.

¶9        …  We cannot accept his factual claims in a vacuum.  There must be evidence of coercion for us to review.  We have nothing to review.  Therefore, we assume that the trial court’s findings were supported by the missing transcripts.  An appellate court will not overturn a trial court’s findings of fact unless those findings are clearly erroneous. State v. Kennedy, 2008 WI App 186, ¶11, 315 Wis. 2d 507, 517, 762 N.W.2d 412.  No showing has been made of how the trial court’s findings are clearly erroneous.  We affirm the trial court’s ruling.

Et cetera.

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