COURT OF APPEALS DECISION DATED AND FILED April 29, 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. Michael D. Burns, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Wedemeyer and Fine, JJ.
¶1 PER CURIAM. Michael D. Burns appeals from an order summarily denying his postconviction motion. The issue is whether the claimed ineffective assistance of postconviction/appellate counsel for failing to challenge trial counsel’s effectiveness at sentencing constitutes a sufficient reason to overcome the procedural bar of State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-82, 517 N.W.2d 157 (1994). We conclude that Burns’s conclusory allegation for failing to raise this issue on direct appeal does not justify a delay of over three years and five months. Therefore, his motion is procedurally barred; we affirm.
¶2 Following a bench trial, Burns was convicted of first-degree sexual assault of a child, the eleven-year-old girlfriend of his girlfriend’s young daughter. The trial court imposed a twenty-five-year sentence, comprised of fifteen- and ten-year respective periods of initial confinement and extended supervision.
¶3 On direct appeal, Burns contended that he was entitled to a new trial because of: (1) newly discovered evidence; (2) the ineffective assistance of trial counsel; and (3) insufficient evidence to support his conviction. Burns alleged that trial counsel was ineffective in a variety of ways, which were characterized as counsel’s alleged failure to fully cross-examine the victim on a number of topics, and for advising Burns to waive his right to a jury trial because the trial court had excluded in limine other-acts evidence, namely that Burns had previously told police that he had sexually assaulted his own daughters when they were about the same age as this victim. Burns contended that the trial court’s ruling to exclude this other-acts evidence in limine would not have been known to a jury, whereas the trial court’s awareness of such unfairly prejudicial information improperly influenced it to wrongfully convict him, particularly when there was insufficient evidence against him.
¶4 In its order denying Burns’s original postconviction motion, the
trial court explained extensively why it rejected his ineffective assistance and
other-acts evidence claims. It also
explained that it found the victim “highly credible in comparison with the
defendant’s testimony or his son’s testimony.”
In sum, the trial court explained that it convicted Burns on the basis
of the victim’s testimony that the person who assaulted her had “beer breath,
cigarette breath, [a] mustache, kiss[ed her] on the lips, and the[n] kiss[ed
her] on the forehead[, which] was the signature of one person in that house and
one person alone and that was the defendant, Michael Burns.” On direct appeal, we affirmed the judgment
and postconviction order.
¶5 Over three years later, Burns moved for postconviction relief
on the basis of ineffective assistance of counsel for failing to raise trial
counsel’s ineffectiveness. To avoid Escalona’s
procedural bar in a subsequent postconviction motion, Burns must allege a sufficient reason for failing to have previously
raised all grounds for postconviction relief on direct appeal or in his
original postconviction motion. See
Escalona, 185
¶6 Burns raises two identifiable sentencing issues: (1) the trial court’s allegedly “erroneous
inferences” and alleged reliance on inaccurate information at sentencing to which
trial counsel failed to object; and (2) the trial court’s consideration of the
same other-acts evidence at sentencing that it excluded in limine from the State’s case-in-chief at trial. We independently conclude that Burns’s
conclusory allegation of postconviction/appellate counsel’s ineffectiveness (in
failing to challenge trial counsel’s effectiveness) is insufficient to overcome
Escalona’s
procedural bar because in the instances that postconviction/appellate counsel
was even arguably ineffective, Burns does not allege why a two-year, five-month
delay in pursuing this alleged ineffectiveness was justified.[2] See Tolefree, 209
¶7 Burns was at the sentencing hearing and should have been aware of those allegedly erroneous assumptions and inaccurate information at sentencing or certainly by the time of his direct appeal. He fails to allege any reason for the two-and-a-half- to three-and-a-half-year delay in pursuing this claim that is now procedurally barred by Escalona.
¶8 The second sentencing issue challenges the trial court’s alleged reliance on the other-acts evidence when it sentenced Burns. Burns should have been aware of this alleged reliance on the other-acts evidence when he was sentenced. Over five years elapsed between Burns’s sentencing and his current postconviction motion. Burns does not allege in his postconviction motion why such a lengthy delay was warranted to raise this issue.
¶9 The trial court rejected the merits of this issue in its
postconviction order. It explained, with
citations to legal authority, that other-acts evidence may be considered at
sentencing as evidence of the defendant’s character. E.g.,
State
v. Damaske, 212
¶10 Insofar as Burns alleges any reason to overcome Escalona’s
procedural bar, he does not explain the several year delay in seeking
postconviction relief. Consequently, his
postconviction motion is procedurally barred.
See Escalona, 185
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2005-06).
[1] Burns’s other alleged reasons addressed an unrelated concern, namely that Burns’s correspondence that was previously construed as a postconviction motion pursuant to Wis. Stat. § 974.06(4) (2003-04), should not constitute a procedural bar to the postconviction motion underlying this appeal. We do not, and the trial court that denied the current postconviction motion did not, consider that correspondence as a procedural bar; the referenced procedural bar relates to Burns’s failure to previously raise these issues on direct appeal, or to explain why it took him years to do so.
Burns raised other
issues (such as the alleged failure of trial counsel to conduct a factual
investigation, the admissibility of his polygraph test results, the references
during pre-trial and trial proceedings to other-acts evidence, and the alleged
denial of his right to a fair trial); however, he limited his alleged reason
under Escalona to sentencing issues.
State v. Escalona-Naranjo, 185
Burns also raised,
renewed and recharacterized related issues, blurring the distinction between
raising a “new” issue, renewing an issue or an aspect of an issue that we had
previously decided, or more fully developing an issue that he had previously
raised. See Wis. Stat. § 974.06(4) (“Any ground finally adjudicated
or not so raised … may not be the basis for a subsequent motion, unless the
court finds a … sufficient reason” for failing to previously raise the issue); State
v. Witkowski, 163
[2] Burns
refers to a pro se postconviction
motion he submitted to the trial court that was rejected for filing because it
exceeded the page limitations for postconviction motions pursuant to Wis. Stat. § 974.06 (2003-04).
[3] To summarize, in its original postconviction order denying Burns’s motion for a new trial, the trial court explained that “[it] did not base its decision on the possibility that the defendant had previously assaulted his daughters; it had no need to. All of the evidence in this case pointed to the defendant as the person who assaulted [the victim].” (Emphasis in original.)