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COURT OF APPEALS DECISION DATED AND FILED January 17, 2002 Cornelia G. Clark 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 from an order of the circuit court for Rock County:� James E. Welker, Judge.� Affirmed.�
����������� Before Dykman, Roggensack and Lundsten, JJ.�
�1����������������������� PER CURIAM. Frank Normington appeals from an order denying his motion for relief under Wis. Stat. � 806.07 (1999-2000)[1] from an order of commitment under Wis. Stat. ch. 980.� We affirm.
�2����������������������� Normington was found to be a sexually violent person and ordered committed in April 1998.� On appeal, we affirmed the order in May 1999.� Normington sought discretionary review in higher courts, which was denied in November 1999.� In August 2000 he filed a motion for relief from the commitment order under Wis. Stat. � 806.07.� That motion was denied, and Normington now appeals.
�3����������������������� Normington argues that the commitment order must be vacated because the State failed to prove that he was within ninety days of release when the petition for commitment was filed.� However, after this appeal was briefed, we held that this issue can be raised only by persons whose cases were on direct appeal and not finalized as of June 23, 2000.� State v. Thiel, 2001 WI App 52, �1, �19, 241 Wis. 2d 439, 625 N.W.2d 321.� Normington�s direct appeal was finalized in November 1999, and therefore he cannot raise this issue.
�4����������������������� Normington also argues that he should be granted relief from the commitment order, under Wis. Stat. � 806.07, because his trial counsel was ineffective by not moving to strike a juror for cause during voir dire.� His attorney did, however, remove this juror with a peremptory strike.�
�5����������������������� The State argues that if Normington�s motion under Wis. Stat. � 806.07 is seen as analogous to a motion under Wis. Stat. � 974.06 in a criminal case, we should hold that he waived his right to raise this issue under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), because he did not either raise the issue in his first appeal, or allege now a sufficient reason for why he did not raise it earlier.� We choose to address the merits.[2]
�6����������������������� On the merits, the State argues that the circuit court�s decision to deny Normington�s claim of ineffective assistance should be reviewed using the discretionary standard usually applied to motions brought under Wis. Stat. � 806.07 in civil cases.� This raises another potential issue, as to the proper standard of review, but we need not consider that because we would affirm under any standard of review.
�7����������������������� Defendants in Wis. Stat. ch. 980 proceedings have a right to effective assistance of counsel.� See Wis. Stat. 980.03(2)(a); A.S. v. State, 168 Wis. 2d 995, 1004-05, 485 N.W.2d 52 (1992).� To establish ineffective assistance of counsel, a person must show that counsel�s performance was deficient and that such performance prejudiced his defense.� Strickland v. Washington, 466 U.S. 668, 687 (1984).� To allege prejudice in this case, Normington relies on State v. Ramos, 211 Wis. 2d 12, 16, 564 N.W.2d 328 (1997), which held that the defendant�s use of a peremptory challenge to correct a trial court error is adequate grounds for reversal because it arbitrarily deprives the defendant of his right to exercise all of his peremptory challenges.� However, after the present case was briefed, State v. Lindell, 2001 WI 108, �52, 245 Wis. 2d 689, 629 N.W.2d 223, overruled Ramos.� Under Lindell, the focus is instead on whether the error has affected the substantial rights of the party.� Id. at �111.� The court concluded that the substantial rights of a party are not affected or impaired when a defendant chooses to exercise a single peremptory strike to correct a circuit court error.� Id. at 113.� In the present case, Normington removed the juror in question with a peremptory strike.� Therefore, Normington was not prejudiced by his counsel�s failure to make a motion to strike one juror for cause.
����������� By the Court.�Order affirmed.
����������� This opinion will not be published.� Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.
[2] Proceedings under Wis. Stat. ch. 980 are civil, not criminal.� See State v. Thiel, 2001 WI App 52, �9, 241 Wis. 2d 439, 625 N.W.2d 321.� Therefore, Escalona-Naranjo does not have any application to these proceedings, because its conclusion was based on an interpretation of a statute that applies only to criminal cases, Wis. Stat. � 974.06(4).� Normington�s motion is made under Wis. Stat. � 806.07, a statute applying generally to civil cases, and which contains no similar limitation on successive motions.� The State�s argument is, essentially, that we should create such a limitation.�