COURT OF APPEALS DECISION DATED AND FILED May 13, 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. Terrance D. Prude, Defendant-Appellant. |
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APPEAL
from orders of the circuit court for
Before Fine, Wedemeyer and Kessler, JJ.
¶1 PER CURIAM. Terrance D. Prude appeals pro se from an order denying his postconviction motion brought under Wis. Stat. § 974.06 (2005–06),[1] and from an order denying his motion to reconsider. The circuit court found that Prude’s claims are procedurally barred. We affirm.
Background
¶2 Prude pled guilty to five counts of armed robbery as party to a crime. See Wis. Stat. §§ 943.32(2) and 939.05 (1999–2000). Prior to sentencing, he discharged his appointed lawyer. With the assistance of a new attorney, he moved in 2000 to withdraw his pleas on the ground that he had not understood the plea negotiation and its consequences. The circuit court denied the motion, and the matter proceeded to sentencing.
¶3 Prude next filed a motion for plea withdrawal in 2003. Acting pro se, he alleged that he did not understand the elements of the offense or the nature of the charge. The circuit court denied the motion, concluding that it was contradicted by the record and “completely frivolous.”
¶4 Prude filed his third motion for plea withdrawal in 2004 with
the assistance of an appellate attorney.[2] Prude alleged that his pleas were not
knowingly and voluntarily entered because his trial lawyer lied to him
regarding the sentence that he would receive.
The circuit court denied the motion.
Prude appealed, and this court affirmed.
¶5 Prude’s fourth postconviction motion for plea withdrawal underlies this appeal. In 2007, again acting pro se, Prude repackaged his allegation that he did not understand the elements of the offense, contending solely that he did not understand the meaning of “party to a crime.” The circuit court denied the motion as substantively meritless, as well as procedurally barred under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). The circuit court subsequently denied Prude’s motion to reconsider, and this appeal followed.
Discussion
¶6 “A matter once litigated may not be relitigated in a
subsequent postconviction proceeding no matter how artfully the defendant may
rephrase the issue.” State
v. Witkowski, 163
¶7 To the extent that Prude’s 2007 motion presented a more narrowly
focused claim than Prude presented in 2003, the circuit court correctly
determined that the motion was barred by Escalona-Naranjo. A defendant may not pursue a claim in a
subsequent proceeding that could have been raised or that was inadequately
raised in an earlier proceeding, unless the defendant provides a
sufficient reason for the omission or inadequacy. See Escalona-Naranjo, 185
¶8 In this court, Prude contends that he had a reason for
bringing his 2007 motion that is sufficient to overcome the bar of Escalona-Naranjo,
namely, ineffective assistance of his postconviction attorney during the direct
appeal. Ineffective
assistance of postconviction counsel may constitute a sufficient reason for an
additional postconviction motion pursuant to Wis.
Stat. § 974.06.
¶9 Prude’s motion to reconsider the circuit court’s decision did not correct the inadequacy in his motion for plea withdrawal, even assuming that a reconsideration motion is an appropriate vehicle for making such a correction. Although Prude alleged ineffective assistance of postconviction counsel in his reconsideration motion, his allegation is unsupported by the record.
¶10 The two-prong test for proving ineffective assistance of
counsel requires the defendant to show that his or her attorney’s performance
was deficient and that the defendant was prejudiced as a result. Strickland
v.
¶11 Prude alleged that his postconviction attorney performed
deficiently by not arguing that Prude lacked an understanding of the elements
of the offense. In 2003, the circuit
court determined that a motion for plea withdrawal on this ground was
frivolous. Prude’s postconviction
attorney did not err in 2004 by foregoing renewal of a frivolous claim.
¶12 Finally, we address the State’s request that Prude be warned
against repeatedly filing postconviction motions based on the same facts and
seeking the same relief. We agree that
such a warning is appropriate.
Repetitive litigation imposes a significant and unwarranted burden on
the judicial system. We will not
countenance squandering scarce judicial resources in considering and
reconsidering one individual’s claim.
Therefore, we caution Prude that we are prepared to impose appropriate
sanctions should he persist in filing repetitive motions. See
State
v. Casteel, 2001 WI App 188, ¶¶23–27, 247
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.