COURT OF APPEALS DECISION DATED AND FILED October 15, 2008 David R. Schanker Clerk of Court of Appeals |
|
NOTICE |
|
|
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. |
|
Appeal No. |
|
|||
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
DISTRICT I |
|||
|
|
|||
|
|
|||
State of Plaintiff-Respondent, v. Ceso Sprewell, Defendant-Appellant. |
||||
|
|
|||
APPEAL
from an order of the circuit court for
Before Curley, P.J., Fine, J., and Daniel L. LaRocque, Reserve Judge.
¶1 PER CURIAM. Ceso Sprewell appeals from the
order that denied his motion for postconviction relief brought pursuant to Wis. Stat. § 974.06 (2005–06).
The circuit court concluded that
Sprewell’s motion was procedurally barred.
We affirm, but on the alternative ground that Sprewell’s appellate brief
is wholly inadequate to support his claims.
See
Background
¶2 The State alleged that Sprewell shot two men in the parking lot of a tavern on July 25, 2002. A jury found Sprewell guilty of attempted first-degree intentional homicide while armed, first-degree recklessly endangering safety while armed, and possessing a firearm as a felon as a second or subsequent offense, all as a habitual criminal. Sprewell filed a notice of intent to pursue postconviction relief, and the public defender’s office appointed an attorney who subsequently filed a notice of no-merit appeal and a no-merit report on Sprewell’s behalf.
¶3 Sprewell successfully moved this court to discharge his appellate attorney and dismiss his no-merit appeal. Sprewell then filed a pro se motion in the circuit court pursuant to Wis. Stat. Rule 809.30 (2001–02). He sought postconviction relief on several grounds, including an allegation that his trial attorney was ineffective. The circuit court denied the motion without a hearing in December 2004. Sprewell did not appeal.
¶4 In January 2008, Sprewell filed a second postconviction
motion, again raising allegations that he received ineffective assistance from
his trial attorney. The circuit court
denied the motion on the ground that it was procedurally barred by State
v. Escalona-Naranjo, 185
Discussion
¶5 In
his instant appeal, Sprewell claims that his trial attorney was ineffective: (1) by failing to investigate the
possibility of an alibi witness; (2) by failing to challenge the dangerous
weapon penalty enhancer alleged in regard to the charges of attempted homicide
and reckless endangerment; (3) by failing to object when the State’s
attorney told the jury during closing argument that Sprewell was guilty; and
(4) by conceding Sprewell’s guilt during sentencing. Sprewell asserts that his postconviction attorney
was in turn ineffective by submitting a no-merit report instead of pursuing
these issues on their merits.
¶6 Sprewell
previously filed a postconviction motion. He may not bring a second or subsequent
postconviction motion unless he shows a sufficient reason for failing to raise
all available issues in the first proceeding.
See id., 185
¶7 We
doubt that many circumstances arise in which a defendant who discharged his
appellate attorney and litigated pro se may rely on Rothering
and Debra A.E., singly or in tandem, to justify a second or
subsequent postconviction motion. We
need not determine whether the instant case presents such circumstances. We reject Sprewell’s claims for relief because
Sprewell’s appellate submission does not adequately brief the issues.
¶8 To
prevail on the merits of his claims, Sprewell must show both that his trial
attorney’s performance was deficient and that the deficient performance
prejudiced Sprewell’s defense.
¶9 Sprewell
has not met his burden. In his appellate
brief, he cites the standard for ineffective assistance of counsel, but he fails
to develop an argument addressing the merits of his substantive claims. Instead, Sprewell refers to “issues that are
pointed out in the [Wis. Stat.] §
974.06 motion.” Sprewell’s attempt to
incorporate circuit court submissions in his appellate brief by reference is
unacceptable.
¶10 Sprewell’s
first allegation, that his trial attorney failed to investigate and present a
defense based on alibi, lacks an offer of proof. Sprewell’s appellate submission fails to
provide evidence of an alibi witness who would testify that Sprewell could not
have shot two men on July 25, 2002.
Thus, Sprewell has not satisfied his burden to show how any
investigation by his trial attorney would have changed the outcome of the
trial. See Flynn, 190
¶11 Similarly,
Sprewell provides no legal authority or factual support for the proposition
that Wis. Stat. § 939.63(1) (1999–2000),[1]
permitting an enhanced penalty for crimes committed with a dangerous weapon,
was improperly invoked in this case. He merely
observes that the statute contains an “exception” providing that the increased
penalty “does not apply if possessing, using or threatening to use a dangerous
weapon is an essential element of the crime charged.” Sec. 939.63(1)(b).
¶12 A
litigant may not rely on general statements to support an argument. Pettit, 171
¶13 As
to Sprewell’s contentions that his attorney failed to object when the
prosecutor gave an opinion regarding Sprewell’s guilt during closing argument
and then “conceded guilt” at sentencing, these claims are unaccompanied by
citations to the Record. This
court will not independently search the Record to find facts supporting an
argument. Grothe v. Valley Coatings, Inc.,
2000 WI App 240, ¶6, 239
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2005–06).