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COURT OF APPEALS DECISION DATED AND FILED February 7, 2008 David R. Schanker 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. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of
Plaintiff-Respondent, v. Dennis L. Moore,
Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Dykman, Vergeront and Bridge, JJ.
¶1 PER CURIAM. Dennis Moore, pro se, appeals an order denying his postconviction
motion. Moore argues the circuit court
erred in ruling his claims are procedurally barred by State v. Escalona-Naranjo,
185 Wis. 2d 168, 517 N.W.2d 157 (1994); and State v. Tillman, 2005 WI
App 71, 281 Wis. 2d 157, 696 N.W.2d 574.
Moore contends that ineffective assistance of his postconviction counsel
is a sufficient reason for failing to previously raise issues via the no-merit
procedure. We reject Moore’s arguments
and affirm.
¶2 Moore
was charged with seven counts of second-degree sexual assault with the threat
or use of force and one count of kidnapping.
All of the counts were enhanced by habitual criminality. As part of a plea agreement, Moore entered no
contest pleas to three of the sexual assault charges and the kidnapping
charge. The three remaining sexual
assault charges were dismissed and read in.
Moore was sentenced to three consecutive twenty-five-year sentences for
the sexual assaults. A forty-year
sentence was imposed and stayed for the kidnapping, and a fifty-year probation
term was ordered. The imposed and stayed
sentence was made consecutive to the sentences for the sexual assaults, while
the probation was concurrent to those sentences.
¶3 A
no-merit report was subsequently filed, to which Moore did not respond. This court accepted the no-merit report and
summarily affirmed the judgment of conviction.
Moore then filed a pro se postconviction motion. The circuit court concluded the motion was
barred by Escalona-Naranjo and Tillman. The court further concluded that even
reaching the merits, Moore’s arguments failed.
Moore now appeals the denial of his postconviction motion.
¶4 Escalona-Naranjo
bars claims that could have been raised in a prior postconviction motion or on
direct appeal unless a “sufficient reason” for failing to raise the issue is
presented. Escalona-Naranjo, 185 Wis. 2d at
181-82. The Escalona-Naranjo rules
apply with equal force where the direct appeal was conducted pursuant to the
no-merit process of Wis. Stat. Rule 809.32
(2005-06),[1] so long
as the procedures were in fact followed and the record demonstrates a
sufficient degree of confidence in the result.
See Tillman, 281 Wis. 2d 157,
¶¶19-20.
¶5 Moore’s
attorney filed a no-merit report which addressed: (1) whether Moore
received effective assistance of counsel; (2) whether plea withdrawal was
necessary to correct a manifest injustice; and (3) whether the circuit court
erroneously exercised its sentencing discretion. This court reviewed all of the issues raised
and conducted an independent review of the record. We concluded that Moore’s judgment of
conviction should be affirmed because the record did not contain any
meritorious issues. We conclude the
no-merit procedures were, in fact, followed and the record demonstrates a
sufficient degree of confidence in the result.
See id., ¶¶19-20. Reviewing
the merits of the “new” claims Moore brings on appeal does not alter our
confidence in the result.[2]
¶6 Moore
attempts to evade the procedural bar of Escalona-Naranjo and Tillman
by raising claims in the context of ineffective assistance of postconviction
counsel. Moore asserts that “but for
counsel’s unreasonable failure to file a merits brief, Moore would have
prevailed on appeal.” However, the
factual basis for the claims Moore now brings could have been and should have
been known to Moore at the time of the no-merit report. Because Moore received a copy of the no-merit
report, Moore himself had the opportunity to raise any issues not raised by
counsel. Moore does not provide
sufficient reasons why he identified issues now in bringing a postconviction
motion but could not have done so when given an opportunity to respond to the
no-merit report. The claims, the denial
of which Moore is appealing, are all claims Moore could have raised on direct
appeal but failed to do. Because Moore
had the opportunity on direct appeal to raise the issues he now asserts, and
has not provided a sufficient reason for failing to raise the issues, we
conclude the circuit court did not err in denying Moore’s postconviction motion
based on the procedural bar of Escalona-Naranjo and Tillman.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2]