COURT OF APPEALS DECISION DATED AND FILED June 24, 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. Robert Moralle Madden, Defendant-Appellant. |
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APPEAL
from orders of the circuit court for
Before Curley, P.J., Wedemeyer and Fine, JJ.
¶1 PER CURIAM. Robert Moralle Madden
appeals, pro se, from an order
denying his Wis. Stat. § 974.06
(2005-06)[1]
motion seeking to withdraw his guilty plea and alleging ineffective
assistance of counsel. Madden claims
that his trial counsel provided ineffective assistance by failing to explain
the consequences of “read-ins,” for failing to object to the State’s alleged
violation of the plea agreement, and for failing to raise an issue related to
an inaccuracy in the presentence investigation report. Madden argues that his postconviction counsel
provided ineffective assistance for failing to raise these claims regarding his
trial counsel’s failures. Because
Madden’s ineffective assistance claims are procedurally barred by State
v. Escalona-Naranjo, 185
¶2 In 1997, Madden pled guilty to and was convicted of two counts of armed robbery and one count of robbery. He was sentenced to a total of sixty years in prison. In 1999, with the assistance of postconviction counsel, Madden filed a motion seeking to withdraw his guilty pleas, alleging that his trial counsel provided ineffective assistance, and failed to advise him of the effect of “read-ins,” among other issues. We rejected Madden’s claim and affirmed the judgment in State v. Madden, No. 99-1956-CR, unpublished slip op. (WI App Oct. 3, 2000).
¶3 In 2006, Madden, again with the assistance of counsel filed a Wis. Stat. § 974.06 motion seeking to withdraw his guilty pleas on the basis that postconviction counsel provided ineffective assistance. The trial court denied the motion, following a hearing. Madden filed a motion seeking reconsideration, which was also denied. He now appeals from those orders.
DISCUSSION
¶4 Madden contends in this appeal that his trial counsel provided ineffective assistance in a variety of ways, and that his postconviction counsel was remiss in not asserting these issues in his first appeal. With the exception of the inaccuracy of the presentence investigation report, however, the record refutes Madden’s assertions.
¶5 During Madden’s first appeal, his postconviction counsel asserted that Madden’s trial counsel provided ineffective assistance for the same reasons Madden re-raises here. Defendants are not permitted to pursue an endless succession of postconviction remedies:
We need finality in our litigation. Section 974.06(4) compels a prisoner to raise all grounds regarding postconviction relief in his or her original, supplemental or amended motion. Successive motions and appeals, which all could have been brought at the same time, run counter to the design and purpose of the legislation.
Escalona-Naranjo, 185
¶6 Accordingly, Madden’s claims regarding trial counsel’s failures and postconvicton counsel’s ineffectiveness are procedurally barred as they have already been raised and rejected.
¶7 The only exception to this conclusion is Madden’s claim that trial counsel failed to raise the inaccuracy in the presentence investigation report, and that the trial court relied on the inaccuracy when it sentenced Madden. This claim was not raised in the earlier appeal and therefore will be addressed by this court.
¶8 Madden argues that the presentence investigation report
erroneously referred to his attempt to incite a serious disruption while
imprisoned at Kettle Morraine Correctional Institution. Madden points out that he successfully expunged
that incident from his record, and therefore it should not have been considered
by the trial court. Madden, however,
failed to raise this issue during his sentencing, and therefore has waived this
claim. State v. Groth, 2002 WI
App 299, ¶¶25-26, 258
¶9 Madden was afforded an opportunity to review and contest the information in the presentence investigation report, but neither he nor his attorney made any changes or corrections to it. As indicated in the record:
[DEFENSE COUNSEL]: Your Honor, this morning I had an opportunity to read through the presentence investigation report with my client, line by line, go through every page; and he indicated to me that he has no additions or corrections to that report.
THE COURT: Is that so, Mr. Madden, did you review the presentence report with [defense counsel]?
MR. MADDEN: Yes, Your Honor.
THE COURT: And are there any corrections that you would like me to take note of on the, with respect to what’s in the presentence report?
MR. MADDEN: No, Your Honor.
THE COURT: No?
Any additions, anything you think should have been included that isn’t in the presentence report?
MR. MADDEN: No.
Madden knew that the Kettle
Morraine incident had been expunged as he had fought to get the
expungement. He also acknowledged that
he reviewed the presentence investigation report and that there was nothing
that needed correcting. The time to
advise the trial court of the error was when the trial court directly addressed
Madden. Failure to raise the issue at
that time constitutes waiver. State
v. Leitner, 2001 WI App 172, ¶41, 247
¶10 We also agree with the State’s argument that even if Madden had
not waived this issue, it is without merit as the trial court did not rely on
the expunged incident when imposing sentence.
The expunged incident was merely mentioned by the trial court as one
example of Madden’s poor “track record” in correctional settings and was not
specifically relied upon by the trial court in determining Madden’s
sentence. Accordingly, Madden cannot
satisfy the burden set forth in Tiepelman, 291
By the Court.—Orders 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] Because
the trial court did not rely on the inaccurate information, neither trial
counsel, nor postconviction counsel were deficient in failing to raise this
issue. In order to establish that he or
she did not receive effective assistance of counsel, the defendant must prove
two things: (1) that his or her
lawyer’s performance was deficient; and (2) that “the deficient
performance prejudiced the defense.” Strickland
v.
In assessing the defendant’s claim, we need not
address both the deficient performance and prejudice components if he or she
cannot make a sufficient showing on one.
See Strickland, 466