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COURT OF APPEALS
DECISION
DATED AND FILED
December 30, 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 II
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State of Wisconsin,
Plaintiff-Respondent,
v.
Anthony Alvegas Hamilton,
Defendant-Appellant.
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APPEAL
from orders of the circuit court for Racine
County: allan
b. torhorst, Judge. Affirmed.
Before Brown, C.J., Anderson,
P.J., and Neubauer, J.
¶1 PER CURIAM. Anthony Alvegas Hamilton appeals
from the order denying his motion for postconviction relief and the order
denying his motion for reconsideration. He argues that he received ineffective
assistance of postconviction counsel for failing to allege ineffective
assistance of trial counsel, and that the circuit court committed plain error
when it communicated with the jury outside of his presence. We conclude that Hamilton did not receive
ineffective assistance of trial counsel and that his plain error argument is
barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). Consequently, we affirm the orders of the
circuit court.
¶2 Hamilton
was convicted of one count of robbery by use of force, and one count of armed
robbery by threat of the use of a dangerous weapon. The court sentenced him to twenty years of
initial confinement and twenty years of extended supervision. He appealed, we affirmed, and the supreme
court denied his petition for review. Hamilton then, acting pro
se, filed a motion for postconviction relief under Wis. Stat. § 974.06 (2005-06). Hamilton, who was in prison, did not appear
by telephone for the hearing scheduled on the motion. The circuit court denied the motion by an
order dated January 30, 2007. In the
order, the court noted that Hamilton
had not appeared, and stated that it decided the motion on the submissions,
concluding that his arguments did not have any basis in law.
¶3 Hamilton
then moved for reconsideration of the January 30 order. He also filed a separate motion under Wis. Stat. § 974.06 arguing that
the circuit court had committed plain error when it communicated with the jury
outside of his presence. The trial court
held a hearing on these motions on April 9, 2007. The circuit court stated at the hearing that
it had received a letter from the department of corrections stating that it was
their fault that Hamilton
had not appeared at the January 30, 2007 hearing. The court then said: “[M]y decision was to give Mr. Hamilton an
opportunity to be heard on his original motions putting substance in front of
the form. So we’re essentially back to
the original motions in the matter, which were filed in November of 2006 and I
am ready to go on those motions.” After
hearing argument, the court denied the motions for the reasons stated in its
January 30 order.
¶4 The State first argues that the court does not have
jurisdiction of this appeal because Hamilton
did not timely file his notice of appeal.
Hamilton
appeals from both the January 30 order and the April 9 order. Hamilton
filed his first notice of appeal on June 13, 2007. The State argues that the notice of appeal
was not timely as to the first order.
Further, the State argues that since Hamilton’s motion for reconsideration did not
raise any new issues, this court should not consider the April 9 order
either. See VerHagen v. Gibbons, 55 Wis.
2d 21, 24, 197 Wis.
2d 752 (1972).
¶5 We disagree. The
record shows that the hearing on April 9 was more than just a motion for
reconsideration. Because Hamilton had been
prevented from appearing at the first hearing, the court allowed him to argue
the substance of his initial motion at the second hearing. The court was not reconsidering but allowing Hamilton his first
opportunity to present his arguments. We
conclude that we have jurisdiction, and will address the issues presented by
the appeal.
¶6 Hamilton argues that he received ineffective assistance of
postconviction counsel because his counsel did not argue that Hamilton received
ineffective assistance of trial counsel for two reasons: (1) trial counsel did not ask for a jury
instruction on the lesser included offense of theft and (2) trial counsel
failed to impeach the victim, a security guard, with a statement he made to the
police. Hamilton
argues that the statement would have shown that Hamilton did not use force against the
security guard during the incidents.
¶7 To establish an ineffective assistance of counsel claim, a
defendant must show both that counsel’s performance was deficient and that he
was prejudiced by the deficient performance.
Strickland v. Washington, 466 U.S. 668, 687
(1984). A reviewing court may dispose of
a claim of ineffective assistance of counsel on either ground. Id. at
697. We review the denial of an
ineffective assistance claim as a mixed question of fact and law. State v.
Johnson, 153 Wis.
2d 121, 127, 449 N.W.2d 845 (1990). We
will not reverse the circuit court’s factual findings unless they are clearly
erroneous. Id.
However, we review the two-pronged determination of trial
counsel’s performance independently as a question of law. Id.
at 128.
¶8 Hamilton
argues that his trial counsel was ineffective when he did not ask for an
instruction on the lesser included offense of theft. Hamilton
argues that the evidence was indisputable that he had committed theft, but the
issue of whether he had threatened force was in dispute. We conclude that this claim is merely a
repackaging of an issue Hamilton
raised in his direct appeal.
¶9 “A motion under [Wis.
Stat. § 974.06], is not a substitute for a direct appeal. A matter once litigated may not be
relitigated in a subsequent postconviction proceeding no matter how artfully
the defendant may rephrase the issue.” State
v. Witkowski, 163 Wis.
2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991) (citations omitted). An appellant may not use a motion for
postconviction relief to relitigate an issue that was litigated in a direct
appeal, nor may an issue be re-litigated every time a new legal theory is
advanced. Id.
¶10 In his direct appeal, Hamilton
argued that there was insufficient evidence to support either conviction. Specifically, he argued that there was
insufficient evidence from which the jury could conclude that the victim
believed that Hamilton
had a gun. We concluded, however, that
there was sufficient evidence from which the jury could find that the victim
believed Hamilton
had a gun. Hamilton’s argument in this
appeal that his trial counsel erred by not asking for the lesser included
offense instruction is merely a rephrasing of his argument that there was
insufficient evidence to support the conviction, and we reject it.
¶11 We also reject Hamilton’s
argument that his trial counsel was ineffective because he did not impeach the
victim with a statement the victim gave to the police. Hamilton
argues that trial counsel’s failure to use the statement at trial “clearly fell
below an objective standard of reasonableness.”
The record shows, however that trial counsel did raise the issue of the
inconsistent statements in his cross-examination of the police officer who took
the statement from the victim. Because
counsel presented the statements to the jury, we cannot conclude that
postconviction counsel was ineffective for failing to argue that Hamilton received
ineffective assistance on this basis.
¶12 Hamilton
next argues that the circuit court erred when it communicated with the jury when
Hamilton and his counsel were not present.
The State argues that this issue is barred by Escalona-Naranjo. Under Escalona, claims of error that
could have been raised in the direct appeal or in a previous motion under Wis. Stat. § 974.06, cannot be raised
in a subsequent § 974.06 motion unless the appellant offers a sufficient
reason for failing to do so earlier. State
v. Lo, 2003 WI 107, ¶15, 264 Wis.
2d 1, 665 N.W.2d 756.
¶13 The State argues that this claim is barred because it was
raised in Hamilton’s
“third” motion for postconviction relief.
The State refers to the motion in which Hamilton raised this issue as his third
motion for postconviction relief because it was filed after the initial motion
and the motion for reconsideration. The
record shows, however, that Hamilton
filed the motion before the circuit court held the April 9 hearing. The circuit court considered the motion at
that hearing. We conclude that by
considering the motion, the circuit court, in essence, allowed Hamilton to supplement his
initial motion. We cannot conclude that
it was barred under Escalona because it was not raised in the initial
postconviction motion. We conclude,
however, that the issue is barred by Escalona because Hamilton has not offered any reason why this
issue was not raised in his direct appeal.
For the reasons stated.
Therefore, we affirm the orders of the circuit court.
By the Court.—Orders affirmed.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.