COURT OF APPEALS DECISION DATED AND FILED September 16, 2014 Diane M. Fremgen Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
Cir. Ct. No. 2002CF6925 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Wisconsin, Plaintiff-Respondent, v. Daniel D. King, Defendant-Appellant. |
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APPEAL from orders of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Daniel D. King, pro se,
appeals an order that denied his petition for a writ of habeas corpus on the ground that his claims are procedurally
barred. He also appeals the order that
denied his motion for reconsideration. We
affirm.
BACKGROUND
¶2 In
2003, the State filed an eleven-count information against King. As relevant here, the State charged King, as a
party to a crime, with substantial battery in counts five and ten and with
armed robbery in count eleven. The
matter proceeded to trial. The jury found
King guilty as charged in counts five, ten, and eleven and acquitted him of the
eight other charges. The circuit court
later vacated King’s conviction for count five.
For the two convictions remaining, the circuit court imposed consecutive
sentences, namely, a ten-year term of imprisonment for count ten, and a
thirty-five year term of imprisonment for count eleven. King pursued a direct appeal to this court
with the assistance of appointed counsel.
We affirmed. State v. King, 2005 WI
App 224, 287 Wis. 2d 756, 706 N.W.2d 181 (King I).
¶3 In
2010, King sought postconviction relief pro
se in a motion that he styled as a request for sentence modification pursuant
to Wis. Stat. § 973.13
(2009-10).[1] King’s motion turned on the verdict form for
count eleven, the count in which the State charged King with armed
robbery. King alleged that, because the
verdict form for count eleven omitted the word “armed” in describing the
charged offense, the circuit court improperly imposed a sentence for that count
in excess of the maximum term of imprisonment allowed for robbery. The circuit court concluded, however, that
the jury found King guilty of armed robbery as charged in the information and
denied relief. We affirmed. State v. King, 2011AP319-CR,
unpublished slip op. (WI App Mar. 20, 2012) (King II).
¶4 King
next filed the petition for a writ of habeas
corpus that underlies this appeal.
He alleged that his criminal convictions are constitutionally infirm and
that his postconviction counsel afforded him constitutionally ineffective
assistance by failing to raise various challenges to the effectiveness of his
trial counsel. The circuit court
concluded that King’s claims are procedurally barred because he could have
raised them in King II. The circuit
court also denied King’s motion to reconsider, and he appeals.
DISCUSSION
¶5 “We
need finality in our litigation.” State
v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994). Thus, Wis.
Stat. § 974.06 compels an imprisoned offender to raise all constitutional
and jurisdictional grounds for postconviction relief in his or her original,
supplemental or amended motion. See id.;
see also Escalona-Naranjo, 185 Wis. 2d at 185. If a convicted offender did not raise his or
her grounds for postconviction relief in a prior postconviction proceeding, or
if prior litigation resolved the offender’s claims, they may not become the
basis for a new postconviction motion under § 974.06 unless the offender
demonstrates a sufficient reason for failing to allege or adequately raise the claims
in the prior proceeding. Escalona-Naranjo,
185 Wis. 2d at 181-82. A similar court-mandated
rule governs a petition for a writ of habeas
corpus filed in a postconviction setting.
See State v. Pozo, 2002 WI App 279, ¶9, 258 Wis. 2d 796, 654
N.W.2d 12. The writ is unavailable when
the convicted offender could have raised his or her claims in a prior appeal
but did not do so and does not offer a valid reason for that failure. Id.
¶6 Here,
King asserts that he did not bring his current claims in King I because his
appointed postconviction counsel was ineffective for failing to raise
them. See State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 682,
556 N.W.2d 136 (Ct. App. 1996) (indicating that ineffective assistance of
appointed counsel in postconviction proceeding may, in some circumstances,
permit an additional postconviction proceeding). The State responds that the alleged
ineffective assistance of King’s postconviction counsel does not excuse King’s
own failure to bring his current claims when he pursued relief pro se in King II.
¶7 King
argues that he was not required to bring his current claims in the litigation
underlying King II. He contends
that in King II he pursued sentence modification under the authority of
Wis. Stat. § 973.13. That statute provides: “[i]n any case where the court imposes a
maximum penalty in excess of that authorized by law, such excess shall be void
and the sentence shall be valid only to the extent of the maximum term
authorized by statute and shall stand commuted without further
proceedings.” Id. King asserts that, because he relied on
§ 973.13 when he pursued relief in King II, that litigation does not
act as a bar to pursuing another set of postconviction claims. In support, he cites State v. Starks, 2013 WI
69, 349 Wis. 2d 274, 833 N.W.2d 146.
In Starks, he says, the supreme court concluded that a sentence
modification motion does not bar a later motion under Wis. Stat. § 974.06.
See Starks, 349 Wis. 2d
274, ¶49.
¶8 The
State does not discuss King’s argument that Starks permits his
current litigation. Instead, the State addresses
whether King’s litigation is permitted by State v. Flowers, 221 Wis. 2d 20,
586 N.W.2d 175 (Ct. App. 1998). There,
an offender filed three postconviction motions under Wis. Stat. § 974.06, then filed a fourth postconviction
motion seeking a reduced sentence on the ground that the State had failed to
prove the allegation that he was a repeat offender within the meaning of Wis. Stat. § 939.62. See Flowers, 221 Wis. 2d at
22-25. We construed the offender’s
fourth postconviction motion as one filed under Wis.
Stat. § 973.13. Flowers,
332 Wis. 2d at 26. We entertained
the offender’s claim, concluding that it warranted an exception to the
procedural bar imposed by Escalona-Naranjo. See Flowers, 221 Wis. 2d at
30. As we subsequently emphasized, the
exception recognized in Flowers is narrow and applies only when a convicted person seeks relief
from a sentence on the ground that he or she has been wrongly sentenced as a
repeat offender. See State v. Mikulance,
2006 WI App 69, ¶¶13-14, 16, 291 Wis. 2d 494, 713 N.W.2d 160.
¶9 Both
Starks
and Flowers
are inapplicable here. Each
of those cases permits some sentence modification motions notwithstanding the
procedural bar to serial litigation imposed by Escalona-Naranjo and its
progeny. King claims that his current
litigation fits within the Starks exception to the procedural
bar because in King II he pursued sentence modification pursuant to Wis. Stat. § 973.13. He is wrong.
The claim underlying King II was not a sentence
modification motion pursuant to § 973.13,
but rather, a claim cognizable under Wis.
Stat. § 974.06.
¶10 The
claim that King pursued in King II turned on a theory that the form
of the verdict shows that he stands convicted of robbery. The judgment of conviction, however, reflects
that King stands convicted of armed robbery, as alleged in count eleven of the
information. Thus, King’s claim in King
II was really a constitutional attack on a defective verdict form. Indeed, King did not deny that the motion
underlying King II raised a constitutional claim. To the contrary, his reply brief in this
court affirmatively asserted that he raised an issue “of a constitutional
magnitude.”[2]
¶11 Because
King raised a constitutional claim in King II, the State asked this court
to bar his claim in that proceeding on the ground that he was pursuing a Wis. Stat. § 974.06 motion without
stating a sufficient reason for serial litigation. See Escalona-Naranjo, 185 Wis. 2d
at 181-82. We acknowledged the
State’s argument, but we elected to resolve King’s request for relief on different
grounds. See King II, No.
2011AP319-CR, ¶3 n.2. Specifically, we
concluded that King forfeited his claim when he failed to raise it at trial
during the instruction and verdict conference.
See id., ¶4.
¶12 Additionally,
we relied on, inter alia, State
v. Hansbrough, 2011 WI App 79, ¶17, 334 Wis. 2d 237, 799 N.W.2d
887. See
King II, No. 2011AP319-CR, ¶¶5,
7. In Hansbrough, we determined
that failure to provide a jury with appropriate verdict forms is a
constitutional error, but one subject to harmless error analysis. See
id.,
334 Wis. 2d 237, ¶¶10, 18 & n.2.
Applying Hansbrough, we concluded in King II that failure to
include the word “armed” in the verdict form for count eleven was a harmless
error and that King was properly convicted of armed robbery. See
King
II, No. 2011AP319-CR, ¶7.
¶13 Because
the claim in King II was a constitutional challenge to the procedure
resulting in King’s conviction for armed robbery, King could not use Wis. Stat. § 973.13 as the
procedural mechanism for his litigation.
See Mikulance, 291 Wis. 2d 494, ¶19. Section 973.13 is not an available tool for
pursuit of such claims. See
Mikulance, 291 Wis. 2d 494, ¶19.
Rather, Wis. Stat. § 974.06
governed King’s challenge.[3] See State v. Henley, 2010 WI 97,
¶¶52-53, 328 Wis. 2d 544, 787 N.W.2d 350 (stating that § 974.06 is the
primary mechanism for an incarcerated defendant to pursue postconviction relief
on constitutional grounds).
¶14 The
litigation in King II thus constitutes a procedural bar to the postconviction
claims King raises now unless he presents a sufficient reason for failing to
raise his current claims in that earlier proceeding. See
Pozo,
258 Wis. 2d 796, ¶9. He offers no
reason, erroneously insisting instead that King II does not result in a procedural bar. Because King does not present a sufficient
reason for serial litigation, his current claims are barred.[4]
By
the Court.— Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] The 2009-10 version of Wis. Stat. § 973.13 is identical to the current version. All subsequent references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
[2] “Generally, a court may take judicial notice of its own records and proceedings for all proper purposes. This is particularly true when the records are part of an interrelated or connected case, especially where the issues, subject matter, or parties are the same or largely the same.” Johnson v. Mielke, 49 Wis. 2d 60, 75, 181 N.W.2d 503 (1970).
[3] Of course, the label that King selected for his first round of pro se litigation did not control the outcome of the proceedings in State v. King, 2011AP319-CR, unpublished slip op. (WI App Mar. 20, 2012) (King II). We look beyond the label that a pro se prisoner applies to his or her litigation to determine if relief is warranted. See bin-Rilla v. Israel, 113 Wis. 2d 514, 521, 335 N.W.2d 384 (1983).
[4] Because we conclude that King’s current claims are barred, we do not reach his arguments that the errors he alleges entitle him to a judgment of acquittal rather than some other relief. See State v. Armstead, 220 Wis. 2d 626, 631, 583 N.W.2d 444 (Ct. App. 1998) (we do not decide claims that depend on hypothetical facts).