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COURT OF APPEALS
DECISION
DATED AND FILED
October 28, 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 Nos.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Larnal Linden,
Defendant-Appellant.
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APPEAL
from orders of the circuit court for Milwaukee
County: JOSEPH R. WALL, Judge. Affirmed.
Before
Curley, P.J., Fine, J., and Daniel L. LaRocque, Reserve Judge.
¶1 PER CURIAM. Larnal Linden appeals from
orders denying his postconviction and reconsideration motions. We conclude that the issues Linden raises (apart from that raised on
reconsideration) were decided adversely to him on direct appeal and cannot be
relitigated. Insofar as the new issue Linden raised on reconsideration was not decided on direct
appeal, the “new law” that Linden
seeks to apply does not retroactively apply to cases on collateral review. Therefore, we affirm.
¶2 In Milwaukee
County Circuit Court Case No.
2003CF1882 (Appeal No. 2007AP1624), Linden
pled guilty to delivering cocaine as a subsequent drug offense and as a party
to the crime. In Milwaukee County
Circuit Court Case No. 2003CF2932 (Appeal No. 2007AP1625), Linden pled guilty to two counts of
delivering cocaine as a subsequent drug offense, and to felony bail
jumping. He pled guilty to all of these
offenses as a global plea bargain after the trial had begun. After pleading guilty but before he was
sentenced, Linden
moved for presentence plea withdrawal alleging the ineffective assistance of
trial counsel. After an evidentiary
hearing, the trial court denied the motion.
The trial court ultimately imposed a three-year consecutive sentence,
comprised of one- and two-year respective periods of initial confinement and
extended supervision for the conviction in Case No. 2003CF1882. For the drug convictions in Case No.
2003CF2932, the trial court imposed a six-year consecutive sentence, comprised
of two three-year respective periods of initial confinement and extended
supervision, and a three-year consecutive sentence comprised of one- and
two-year respective periods of initial confinement and extended
supervision. For the bail-jumping
conviction in that same case, the trial court imposed a five-year consecutive
sentence, comprised of two- and three-year respective periods of initial
confinement and extended supervision. Linden appealed from the
judgment in Case No. 2003CF2932; he did not appeal from the judgment in Case
No. 2003CF1882. He now collaterally
attacks both judgments pursuant to the denial of his postconviction and
reconsideration motions.
¶3 On direct appeal from Case No. 2003CF2932, Linden challenged the trial court’s denial of
his motion for presentence plea withdrawal. That challenge necessarily included his guilty
plea entered in Case No. 2003CF1882 because this was a global plea bargain on
cases that had been tried, pled and sentenced in consolidated proceedings. This court affirmed the judgment of
conviction, addressing the merits of the plea withdrawal issue and rejecting Linden’s underlying
ineffective assistance issues. See State v. Linden,
No. 2005AP3115-CR, unpublished slip op. ¶¶6-9 (WI App Jan. 23, 2007).
¶4 Linden now files a postconviction motion seeking to “vacate
[the] judgment … or … order a new trial” on the basis of ineffective assistance
of postconviction counsel pursuant to State ex rel. Rothering v. McCaughtry,
205 Wis. 2d 675, 681, 556 N.W.2d 136 (Ct. App. 1996). The trial court summarily denied the motion,
ruling that the ineffective assistance of trial counsel claim, which is what Linden is again challenging, has already been decided
adversely to him, and insofar as Linden
suggests that he had “no choice but to enter his pleas,” the records show
otherwise. Linden then moved for reconsideration, urging
the trial court to apply Crawford v. Washington, 541 U.S. 36
(2004). The trial court also denied
reconsideration, ruling that Crawford does not apply
retroactively to cases on collateral review, citing Whorton v. Bockting, 127 S. Ct. 1173 (2007).
Linden
appeals.
¶5 Linden claims that he is entitled to relief because trial
counsel was ineffective for failing to challenge the State’s use of hearsay
evidence at trial, for failing to “pursue and present” testimony from the
codefendants as proof of Linden’s innocence, that the trial court erroneously
exercised its discretion by failing to hold an “arraignment/pretrial conference
hearing,” and that the real controversy has not been tried, namely that “Linden
felt he had no other choice except to plea[d] out to the charges.” Insofar as the trial proceeded until Linden pled guilty, these issues were decided adversely to
Linden on
direct appeal. See Linden,
No. 2005AP3115-CR, unpublished slip op. ¶¶7-9.
We will not revisit previously rejected issues. See State v. Witkowski, 163 Wis. 2d 985, 990, 473
N.W.2d 512 (Ct. App. 1991).
¶6 On reconsideration, Linden
urges the application of Crawford. Crawford however, does not retroactively
apply to cases on collateral review. See Whorton,
127 S. Ct. at 1177. Consequently, we do not apply Crawford. See Whorton, 127 S.
Ct. at 1177.
By the Court.—Orders affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5. (2005-06).