PUBLISHED OPINION
Case No.: 95-3259
†Petition for
review filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
SCOTT A. HEIMERMANN,
Defendant-Appellant.†
Submitted on Briefs: August 12, 1996
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: October 2, 1996
Opinion Filed: October 2, 1996
Source of APPEAL Appeal
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Calumet
(If "Special", JUDGE: Hugh F. Nelson
so indicate)
JUDGES: Anderson,
P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the defendant-appellant, the cause was submitted on the brief of Scott
A. Heimermann, pro se.
Respondent
ATTORNEYSOn
behalf of the plaintiff-respondent, the cause was submitted on the brief of James
E. Doyle, attorney general, and Michael R. Klos, assistant attorney
general.
COURT OF APPEALS DECISION DATED AND RELEASED October 2, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3259
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
SCOTT A. HEIMERMANN,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Calumet County:
HUGH F. NELSON, Reserve Judge. Affirmed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
BROWN, J. This case involves the
writ of error coram nobis, which is a tool that enables a trial court to
remove erroneous facts from the record and correct its judgment. Below we detail exactly how and when this
writ may be used.
The context of our
discussion is Scott A. Heimermann's claim that the trial court erred when it
declined to issue this writ. Although
Heimermann was discharged from probation in 1987, eight years later he filed a
petition for a writ of coram nobis[1]
asking the court to generally reconsider whether his trial attorney was
ineffective and to specifically ascertain if his attorney had diligently
pursued a possible defense. The trial
court denied the petition reasoning that under State v. Escalona-Naranjo,
185 Wis.2d 168, 517 N.W.2d 157 (1994), Heimermann had already exhausted his
right to pursue posttrial remedies. In
this appeal, Heimermann contends that the court made a legal error when it
relied on Escalona-Naranjo to dismiss his petition and asks that
we direct the trial court to address the merits of his claim.
We ultimately conclude
that the trial court correctly declined to consider Heimermann's petition. We agree, however, with Heimermann's
argument that the court made a legal error in its analysis of Escalona-Naranjo.
Because Heimermann was not in
custody (on this charge) when he filed his petition, the § 974.06, Stats., remedies were not available to
him. Accordingly, the related waiver
rules discussed in Escalona-Naranjo do not apply to him either.
After reviewing the
factual allegations of Heimermann's petition, however, we conclude that the
trial court nevertheless reached the correct result when it refused to issue
the writ. We see nothing in
Heimermann's petition that justifies reopening the record regarding his trial
attorney's performance. We affirm the
order rejecting Heimermann's petition for a writ of coram nobis.
Background
In January 1986, the
trial court accepted Heimermann's guilty plea to one count of theft by
fraud. Heimermann admitted to
falsifying loan applications that he made with a credit union in the city of
New Castle. The court subsequently
sentenced Heimermann to five years of probation.[2]
Heimermann later filed
motions to withdraw this plea. He argued
that his trial counsel was ineffective and poorly prepared. As a result, Heimermann claimed that he was
pressured into pleading guilty.
Heimermann specifically alleged that his trial counsel had failed to
thoroughly investigate if credit union officers had independent knowledge that
the information in his loan applications was false, and hence, the credit union
could not have been actually defrauded.
The trial court, however, denied these motions and this court affirmed
his conviction. See State
v. Heimermann, No. 86-1954-CR, unpublished slip op. (Wis. Ct. App. June
24, 1987).
In July 1995, Heimermann filed a petition
with the trial court for a writ of coram nobis. Although the Division of Corrections
discharged his sentence on this theft by fraud charge in April 1987, Heimermann
was incarcerated on other charges when he filed this petition.
Heimermann's petition
asserts that he has an impartial witness who can corroborate his continuing
theory that credit union personnel knew the information in his application was
false. He also argues, as he did
previously, that his trial attorney knew this to be a viable defense, but
failed to develop the necessary facts.
Heimermann thus claims that he has identified a “reasonable basis in the
record for disturbing the findings [of] the Trial Court ....”
The trial court,
however, dismissed the petition. It
found that Heimermann had previously litigated the alleged ineffectiveness of
his trial counsel. Accordingly, the
court reasoned that the supreme court's holding in Escalona-Naranjo
demanded that it dismiss Heimermann's request for this alternative chance at
postconviction relief.
The Writ of Coram Nobis
We start with some
background information about the writ.
The writ of coram nobis is a common law remedy which empowers the
trial court to correct its own record. Jessen
v. State, 95 Wis.2d 207, 212, 213-14, 290 N.W.2d 685, 687, 688
(1980). Before states began to develop
statutory postconviction remedies in the late 1940s, this common law remedy was
a very important means of correcting errors in trial proceedings. See generally Jeffrey T. Renz, Post-Conviction
Relief in Montana, 55 Mont. L. Rev.
331, 332-34 (1994). Indeed, since this
writ was the main avenue to secure posttrial relief, some cases from other
jurisdictions involve alleged errors which we would now see litigated in
another manner, such as an allegation of race-based jury exclusion. See id. at 333 (citing Fondren
v. State, 199 So. 3d 625 (Miss. 1967)).
In Wisconsin, the scope
of this writ has decreased significantly from its common law origins. Our supreme court has held that “[w]here
there is a remedy afforded by a writ of error or by appeal the writ of coram
nobis will not lie.” Houston
v. State, 7 Wis.2d 348, 350, 96 N.W.2d 343, 344 (1959). The legislative comments accompanying Laws
of 1969, ch. 255, which implemented § 974.06, Stats., are a further sign of the procedural limitations
against the use of this writ. These
legislative comments explain how these newer statutory remedies are designed to
“supplant” other special writs. See
§ 974.06, Wis. Stats. Ann.
(West 1985); see also Wisconsin
Annotations, § 974.06 (5th ed. 1970) (Editor's Note) (describing
how these statutory remedies superseded an earlier statute that gave statutory
recognition to the writ of coram nobis).
The judicial and
legislative development of other posttrial procedures seems to have equally
impacted the possible substantive uses of this writ. The supreme court's most recent discussion states that a person
seeking this writ must meet the two-part requirement of showing:
the existence of an error of fact which
was unknown at the time of trial and which is of such a nature that knowledge
of its existence at the time of trial would have prevented the entry of
judgment.
Jessen, 95
Wis.2d at 214, 290 N.W.2d at 688. To
better illustrate the “nature” of facts subject to review under a writ of coram
nobis, we will review some of the cases that the Jessen court
relied on.
We start with In
re Ernst, 179 Wis. 646, 649, 192 N.W. 65, 66 (1923), which set out
examples of when a writ could be used.
There, the court explained that a trial court could possibly use the
writ to correct its mistaken belief about the age of a minor child or to
clarify how its discovery that a party had died affected its earlier
judgment. Based on these two examples,
we gather that the petitioner must not only identify a mistake in the record,
but this part of the record must have also been crucial to the court's ultimate
findings.
In addition, we find
significance in the supreme court's statement in Houston that this writ cannot be used as a means to
remove perjured testimony from the record.
The Houston court explained that a writ of coram nobis
could not be used to correct parts of the record substantiated by perjured
testimony because the factfinder's judgment would be construed as a statement
that the perjured testimony was indeed true. See Houston, 7 Wis.2d at 352, 96 N.W.2d at 345.
We read Houston
to establish the following limitation.
If the factfinder has already been directed to an issue and has passed
judgment on this issue, then a writ of coram nobis may not be used to
simply revisit this issue. As one
commentator looking at the Wisconsin cases persuasively described, the writ
“will not lie for after-discovered evidence which aims at correcting an error
of fact directly passed on.” See
Albert F. Neumann, Comment, Criminal Law—Writ of Error Coram Nobis, 11 Wis. L. Rev. 248, 253 (1936).
The common law history
and relevant case law may be distilled to provide the following standards. A person seeking a writ of coram nobis must
pass over two hurdles. First, he or she
must establish that no other remedy is available. What this means for criminal defendants is that they must not be
in custody because if they are, § 974.06, Stats., as an example, provides them a remedy. Second, the factual error that the
petitioner wishes to correct must be crucial to the ultimate judgment and
the factual finding to which the alleged factual error is directed must not
have been previously visited or “passed on” by the trial court. With these principles in hand, we now turn
to the trial court's treatment of Heimermann's petition.
Escalona-Naranjo and the Writ of Coram Nobis
We begin with
Heimermann's claim that the trial court improperly ruled that Escalona-Naranjo
legally barred it from considering his petition. This issue is a question of law and we therefore owe no deference
to the trial court's conclusions. See
First Nat'l Leasing Corp. v. City of Madison, 81 Wis.2d 205, 208,
260 N.W.2d 251, 253 (1977).
The supreme court's
decision in Escalona-Naranjo addressed the specific question of
whether a criminal defendant “is prohibited from raising his [or her] claim of
ineffective assistance of trial counsel in a postconviction motion under
sec. 974.06, Stats., if such a claim could have been raised in a
previously filed sec. 974.02 motion and/or on direct appeal.” Escalona-Naranjo, 185 Wis.2d at 173, 517
N.W.2d at 158-59. The supreme court
answered “yes” and held that the second postconviction claim would be
barred. See id. at 173,
517 N.W.2d at 159.
Heimermann's petition
for a writ of coram nobis thus presents a similar scenario to the one
that the supreme court faced in Escalona-Naranjo. After the trial court accepted Heimermann's
plea in 1986 and entered judgment, Heimermann unsuccessfully pursued several
posttrial motions and an appeal to this court.
Now in this case,
several years later, Heimermann again asked the trial court to address this
question, although this second time he did so via a petition for a writ of coram
nobis. We thus see the logic in the
trial court's decision to apply the rule set out in Escalona-Naranjo
that defendants may not relitigate previously raised posttrial issues.
However, there is one
important fact which distinguishes this scenario from the one faced by the
court in Escalona-Naranjo. Unlike
that defendant, Heimermann is no longer in custody on the charges. And because Heimermann is not in custody, he
cannot make use of the remedies set out in § 974.06, Stats. As the supreme court forcefully explained in Jessen,
“the remedy provided in sec. 974.06 is available solely to those persons in
custody under sentence of a court.” See
Jessen, 95 Wis.2d at 211, 290 N.W.2d at 687.
Therefore, we hold that
the trial court erred when it ruled that Escalona-Naranjo served
to bar Heimermann from seeking a writ of coram nobis. Since the § 974.06, Stats., remedies are not available to
Heimermann, he has no other means by which to pursue his challenge and has
accordingly met the first hurdle to this writ.
The Legal Sufficiency of Heimermann's Petition
Having concluded that the
trial court erred in its analysis of Escalona-Naranjo and that
Heimermann has met the first hurdle, we will proceed to the second hurdle of
whether the factual error that Heimermann identifies is worthy of the trial
court's further consideration.
While the decision of
whether to issue a writ of coram nobis and reopen the record is
generally left to the trial court's discretion, see Jessen,
95 Wis.2d at 213, 290 N.W.2d at 688, our conclusion that the trial court made a
legal error when it failed to even consider issuing the writ does not dictate
that we remand this case for further proceedings.
Under State v.
Holt, 128 Wis.2d 110, 124-25, 382 N.W.2d 679, 687 (Ct. App. 1985), this
court has the power to affirm a trial court's ultimate ruling even though its
reasoning was incorrect. In addition,
this court can review documentary evidence, accept it as true, and then measure
if the party has stated a claim as a matter of law. This is the exact methodology we employ when we conduct our
independent review of alleged errors in summary judgment proceedings. See generally Preloznik v. City of
Madison, 113 Wis.2d 112, 115-16, 334 N.W.2d 580, 582-83 (Ct. App.
1983). So even though the decision of
whether to grant a writ of coram nobis is left to the discretion of the
ruling trial court, we can nonetheless conduct an independent review of
Heimermann's petition and determine whether, as a matter of law, there is any
legal basis for such an exercise of discretion.
As we outlined
previously, the specific issue that Heimermann hopes to clarify with this writ
is whether his trial counsel failed to fully investigate the case and prepare
his defense. The “fact” that Heimermann
thus hopes to correct is the trial court's earlier posttrial finding that his
trial attorney performed adequately.
The information which
Heimermann presents to support his petition consists of the testimony gathered
from his trial attorney during his original postconviction challenge. The petition particularly emphasizes how the
trial court learned during the original Machner[3]
hearing that Heimermann had an independent witness, an “Attorney Lonergan,” who
could have verified Heimermann's long-standing theory that the credit union
managers knew that he had lied on the loan applications. Heimermann claims “the Courts never in thier
[sic] decisions addressed the
corroboration of Attorney Lonergan” and that this “omission” is now subject to
correction via a writ of coram nobis.
The transcript from the
original Machner hearing verifies Heimermann's claim to the
extent that his trial counsel testified that he had spoken with Lonergan and
that Lonergan had suspicions about what the credit union officials actually
knew. But just because Heimermann has
potentially spotted something that the trial court may have omitted from its
analysis does not entitle him to a writ of coram nobis.
As we have emphasized in
this opinion, the second hurdle for a petitioner seeking a writ of coram
nobis is to show how the fact sought to be corrected is not related to an
issue that the trial court already visited, or “passed on.” Here, however, Heimermann hopes to do
exactly that. He wants the trial court
to reopen the issue of his trial attorney's performance and allow Heimermann to
explain to the court exactly how the “corroboration” from Lonergan might affect
its earlier judgment that his trial counsel was adequate. Since the issue was clearly before the court
during the Machner hearing and, in fact, since this testimony
about Lonergan was clearly before the trial court as well, we may simply
presume that the trial court discounted it in the same manner that we may
presume that the factfinder allegedly subject to correction via a writ of coram
nobis found perjured testimony to be true. See Houston, 7 Wis.2d at 352, 96 N.W.2d at 345. In sum, Heimermann's petition is fatally
flawed because it is aimed at an issue already “passed on” by the trial court.
By the Court.—Order
affirmed.
[1] The “writ of coram nobis” is also known as the “writ of error coram nobis.” Houston v. State, 7 Wis.2d 348, 350, 96 N.W.2d 343, 344 (1959). We will use the shorter version.