COURT OF APPEALS DECISION DATED AND FILED June 17, 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. Omar Carrasquillo, a/k/a Ernesto C. Rivera,
Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Wedemeyer and Kessler, JJ.
¶1 PER CURIAM. Omar Carrasquillo, a/k/a Ernesto Rivera, appeals pro se from an order denying his postconviction motion brought pursuant to Wis. Stat. § 974.06 (2005-06).[1] The circuit court denied the motion as conclusory and unsupported. We affirm, but on the alternative ground that the claim is procedurally barred.
Background
¶2 Carrasquillo entered a no contest plea to one count of second-degree intentional homicide by use of a dangerous weapon. According to Carrasquillo’s confession, he struck Robert Puente on the head with a gun, then fired six or seven shots into Puente’s chest. On January 26, 2004, the circuit court imposed a thirty-five year term of imprisonment.
¶3 With the assistance of postconviction counsel, Carrasquillo
moved to withdraw his plea, alleging that he did not know or understand that
his plea waived a claim of self-defense.
The circuit court denied the motion.
On appeal, this court affirmed the order and the judgment of conviction.
¶4 In August 2007, Carrasquillo filed a second postconviction motion for plea withdrawal. In this motion, he claimed that he did not kill Puente. Rather, Carrasquillo alleged that the emergency room doctor “cut Mr. Puente’s body halfway open like fish gills experimenting,” causing Puente to bleed to death. Carrasquillo alleged that his trial attorney was ineffective by failing to investigate this claim.
¶5 The circuit court determined that the evidentiary support for Carrasquillo’s allegations consisted of photographs of an unknown individual. The court therefore denied the motion, stating that it contained only conclusory allegations and lacked supporting materials facts, such as medical reports or witness statements explaining the source of Carrasquillo’s information. This appeal followed.
Discussion
¶6 Any postconviction claim that could have been raised in a prior
proceeding is barred in a subsequent proceeding, absent the defendant
demonstrating a sufficient reason for the failure to raise the issue in the
first appeal. State
v. Escalona-Naranjo, 185
¶7 Ineffective
assistance of postconviction counsel may constitute a sufficient reason for an
additional postconviction motion pursuant to Wis.
Stat. § 974.06.
¶8 A
defendant claiming ineffective assistance of counsel must show both that
counsel’s performance was deficient and that the defendant was prejudiced by
that deficient performance.
¶9 An
attorney is not required to raise every conceivable issue. Counsel has the duty to select the issues
that have merit for appeal. See State
v. Evans, 2004 WI 84, ¶30, 273 Wis. 2d 192, 682 N.W.2d 784, abrogated
on other grounds by State ex rel. Coleman v. McCaughtry, 2006
WI 49, ¶29, 290 Wis. 2d 352, 714 N.W.2d 900. “‘[O]nly when ignored issues are clearly
stronger than those presented, will the presumption of effective assistance of
counsel be overcome.’” Smith v.
Robbins, 528
¶10 Carrasquillo’s
claim that medical negligence was a contributing cause of Puente’s death is not
a clearly stronger basis for postconviction relief than the claim counsel
presented. In a prosecution for
second-degree intentional homicide, the State must prove only that the
defendant’s actions were a substantial factor, not the sole factor, in causing
the victim’s death.[2]
¶11 Carrasquillo’s
assertion that his postconviction counsel was ineffective is not supported by a
colorable showing that counsel’s performance was deficient or prejudicial. No attorney is ineffective for failing to
raise a meritless claim.
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] The
State originally charged Carrasquillo with first-degree intentional homicide. A conviction for that offense, as for
second-degree intentional homicide, requires proof “that the defendant’s act
was a substantial factor in producing the death.”