COURT OF APPEALS DECISION DATED AND FILED July 24, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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
from an order of the circuit court for
Before Dykman, Lundsten and Bridge, JJ.
¶1 PER CURIAM. Mark Larkin appeals an order denying his motion to vacate his convictions on five criminal charges. We affirm the trial court’s decision on both procedural and substantive grounds.
BACKGROUND
¶2 In 1981, Larkin entered no contest pleas to one count of delivery of a controlled substance and four counts of burglary. The court sentenced him to consecutive terms totaling twelve years in prison on the burglary counts, with a concurrent two-year sentence on the drug charge. In 1983, counsel filed a sentence modification motion on Larkin’s behalf and was able to reduce Larkin’s initial prison time to eight years by changing a four-year sentence on one of the consecutive counts to probation.
¶3 In 2007—well after his sentences had been completed—Larkin filed a “Motion to Vacate Convictions and Resentence the Defendant to Reinstate His First Appeal of Right.” The motion sought relief from the 1981 convictions under Wis. Stat. § 974.06 (2005-06)[1] on the grounds that Larkin’s postconviction attorney had failed to file an appeal on his behalf. Larkin complained that the convictions had been used to enhance his sentence for a subsequent offense, on which he is currently serving a federal term in excess of thirty-three years.
¶4 After holding an evidentiary hearing, the trial court rejected as not credible Larkin’s testimony that counsel had failed to follow through on an appeal, instead relying upon materials from the Public Defender’s file to find that counsel had successfully pursued a sentence modification motion instead of an appeal. The court therefore denied the motion and Larkin appeals.
DISCUSSION
¶5 A defendant who wishes to challenge a sentence which has
already been served generally must overcome two procedural barriers: mootness
and competency to proceed.[2]
State v. Theoharopoulos, 72
¶6 Here, Larkin’s challenge to his completed sentences is not
moot because he is still experiencing the collateral consequences of his
convictions in the form of an enhanced federal sentence. See Theoharopoulos, 72
¶7 Furthermore, even if the trial court did have the authority
to entertain a collateral challenge to Larkin’s prior convictions, we would nevertheless
affirm the court. “An appellate court
will only substitute its judgment for that of the trier of fact [regarding
credibility determinations when the evidence is] inherently or patently
incredible—that kind of evidence which conflicts with nature or with fully
established or conceded facts.” State
v. Daniels, 117
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] A
writ of coram nobis is another mechanism by which a person may seek relief from
a judgment of conviction after the sentence has already been served.