COURT OF APPEALS DECISION DATED AND FILED March 25, 2008 David R. Schanker Clerk of Court of Appeals |
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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 I |
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State of
Plaintiff-Respondent, v. Tracy L. Singleton,
Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Wedemeyer, Fine and Kessler, JJ.
¶1 PER CURIAM. Tracy L. Singleton appeals
from the order that denied his motion for postconviction relief under Wis. Stat. § 974.06 (2005–06).[1] Singleton argues that he received ineffective
assistance of appellate counsel because counsel failed to argue that: (1) Singleton’s
plea colloquy was inadequate; (2) his trial counsel was ineffective
because counsel did not tell him that the statute numbers and elements of the
crime with which he was charged had changed; and (3) the trial court
erroneously exercised its “sentencing discretion” when it allowed him to plead
guilty without “clear evidence that the defendant had clear knowledge of what
he is pleading to.”[2] Because we conclude that these arguments are
barred by State v. Escalona-Naranjo, 185
¶2 In 2001, Singleton pled guilty to one count of conspiracy to deliver cocaine. In 2002, he filed a postconviction motion seeking to withdraw his plea, alleging that he received ineffective assistance of trial counsel. The trial court denied the motion and Singleton appealed. This court affirmed the order and the judgment of conviction in 2003. In 2005, acting pro se, Singleton filed another postconviction motion to withdraw his plea based on ineffective assistance of trial counsel. The postconviction court denied that motion and we affirmed. In 2006, again acting pro se, Singleton filed his third postconviction motion seeking to withdraw his plea, alleging that he received ineffective assistance of trial counsel. The postconviction court also denied the motion. Singleton now appeals from this order.
¶3 We conclude that Singleton’s claims are barred by Escalona.
In Escalona,
the supreme court held that:
(1) all grounds for relief under Wis.
Stat. § 974.06 must be raised in a petitioner’s original,
supplemental, or amended motion; (2) an issue that was finally adjudicated
in a prior postconviction motion may not serve as the basis for a further
§ 974.06 motion; and (3) issues that could have been, but were not, raised
in an earlier § 974.06 motion may not be raised in a later motion unless
the party establishes a “sufficient reason” for failing to previously raise the
issues. Escalona, 185
¶4 Singleton attempts to overcome the bar of Escalona
on two grounds: (1) by framing the
issue now as ineffective assistance of appellate counsel, arguing that his
appellate counsel should have raised the issues in the direct appeal; and (2) by
saying that he did not raise the issues previously because he had not received
transcripts from his appellate counsel before he filed his prior postconviction
motions. While ineffective assistance of
appellate counsel might explain why the issues were not raised in his direct
appeal, it does not explain why Singleton did not raise these issues in his
first Wis. Stat. § 974.06
motion.
¶5 To support his claim about not receiving the transcripts, Singleton
includes in his appendix a copy of a letter from his counsel. Singleton, however, did not make this
argument to the circuit court and the letter is not part of the record on
appeal. Generally, we will not consider
an issue raised for the first time on appeal, see Segall v. Hurwitz, 114
¶6 Further, Singleton has not explained why he did not wait
until he received the transcripts from counsel before bringing a postconviction
motion. As the supreme court
stated: “We need finality in our
litigation.” Escalona, 185
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.