State v. Garry Kendall Lyga

OFFICE OF THE CLERK
WISCONSIN COURT OF APPEALS
110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WISCONSIN 53701-1688
Telephone (608) 266-1880
TTY: (800) 947-3529
Facsimile (608) 267-0640
Web Site: www.wicourts.gov
DISTRICT III
November 16, 2021
To:
Hon. Steven P. Anderson
Circuit Court Judge
Electronic Notice
Shannon Anderson
Clerk of Circuit Court
Washburn County Courthouse
Electronic Notice
Winn S. Collins
Electronic Notice
Leonard D. Kachinsky
Electronic Notice
Aaron Bruce Marcoux
Electronic Notice
Garry Kendall Lyga 669694
Oshkosh Correctional Inst.
P.O. Box 3310
Oshkosh, WI 54903-3310
You are hereby notified that the Court has entered the following opinion and order:
2019AP1396-CRNM State of Wisconsin v. Garry Kendall Lyga (L. C. No. 2017CF33)
Before Stark, P.J., Hruz and Gill, JJ.
Summary disposition orders may not be cited in any court of this state as precedent or
authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
Counsel for Garry Lyga has filed a no-merit report concluding no grounds exist to
challenge Lyga’s convictions for four counts of possessing child pornography, contrary to WIS.
STAT. § 948.12(1m) (2019-20).1 Lyga was informed of his right to file a response to the no-merit
report, and he has not responded. Upon our independent review of the record as mandated by
Anders v. California, 386 U.S. 738 (1967), we conclude there is no arguable merit to any issue
1 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

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that could be raised on appeal. Therefore, we summarily affirm the judgment of conviction. See
WIS. STAT. RULE 809.21.
The State charged Lyga with ten counts of possessing child pornography. According to
the complaint, the Wisconsin Division of Criminal Investigation was informed that Google had
identified an account with “four files of interest” linked to username “Garry” along with primary
and secondary email addresses. An additional nine images of what Google believed to be
“children engaged in sexually explicit conduct” were linked to the same name and email
addresses, and an IP address registered to a home in Spooner, Wisconsin. Law enforcement
subsequently executed a search warrant at the home where Lyga lived with roommates. Officers
found a hard drive containing approximately sixty-five files of what law enforcement described
as “children engaged in sexually explicit conduct or nude infant females with their vaginas
exposed.” Lyga was ultimately arrested after a non-custodial interview in which Lyga made
several inculpatory statements in an effort to “get this off his chest.”
At the outset of the criminal proceedings, the circuit court granted defense counsel’s
request for a competency examination. An examining psychologist submitted a report opining
that Lyga was competent to stand trial and, after a hearing, the court found Lyga competent to
proceed.
In exchange for his guilty pleas to four of the charged offenses—each of which carried a
mandatory minimum term of three years’ initial confinement under WIS. STAT. § 939.617(1)—
the State agreed to recommend that the circuit court dismiss and read in the remaining charges,
and also read in any uncharged images and videos for sentencing purposes. The State also
agreed to recommend concurrent sentences for the first three counts, though it remained free to

No. 2019AP1396-CRNM
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recommend a consecutive sentence for the fourth count. The defense was free to argue for all
concurrent sentences. Out of a maximum possible 100-year sentence, the court imposed
concurrent eighteen-year sentences, consisting of eight years’ initial confinement and ten years’
extended supervision.
Although the no-merit report does not address the possibility of a pretrial suppression
motion or the circuit court’s competency determination, nothing in the record supports a
nonfrivolous claim that Lyga’s trial counsel was ineffective by failing to pursue a pretrial motion
to suppress evidence discovered during execution of the search warrant. We likewise conclude
there is no arguable merit to challenge the circuit court’s competency determination. “No person
who lacks substantial mental capacity to understand the proceedings or assist in his or her
defense may be tried, convicted, or sentenced for the commission of an offense so long as the
incapacity endures.” State v. Byrge, 2000 WI 101, ¶28, 237 Wis. 2d 197, 614 N.W.2d 477. To
determine legal competency, the circuit court considers a defendant’s present mental capacity to
understand and assist at the time of the proceedings. Id., ¶¶30-31. A circuit court’s competency
determination should be reversed only when clearly erroneous. Id., ¶46.
An examining psychologist submitted a report opining to a reasonable degree of
professional certainty that Lyga did not lack the “substantial capacity to understand his charges
or to assist an attorney in his defense,” outlining her clinical findings and the reasoning behind
her opinion. At the competency hearing, the parties stipulated to the examiner’s findings, and
Lyga agreed he was competent to proceed. Based on the psychologist’s report, the parties’
stipulation, and Lyga’s agreement with the report, the circuit court found Lyga competent to
proceed. The record supports the court’s determination.

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The no-merit report addresses whether Lyga knowingly, intelligently and voluntarily
entered his guilty pleas and whether the circuit court properly exercised its sentencing discretion.
Upon reviewing the record, we agree with counsel’s description, analysis, and conclusion that
any challenge to Lyga’s pleas or sentences would lack arguable merit. The no-merit report sets
forth an adequate discussion of these potential issues to support the no-merit conclusion, and we
need not address them further. Our independent review of the record discloses no other potential
issue for appeal.
Therefore,
IT IS ORDERED that the judgment is summarily affirmed. WIS. STAT. RULE 809.21.
IT IS FURTHER ORDERED that Attorney Leonard D. Kachinsky is relieved of his
obligation to further represent Garry Kendall Lyga in this matter. See WIS. STAT. RULE
809.32(3).
IT IS FURTHER ORDERED that this summary disposition order will not be published.
Sheila T. Reiff
Clerk of Court of Appeals