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 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. Sylvester Townsend, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Fine, J., and Daniel L. LaRocque, Reserve Judge.
¶1 PER CURIAM. Sylvester Townsend appeals from an order summarily denying his postconviction motion. The issues are whether the prosecutor engaged in misconduct for calling Townsend’s wife to testify at his trial, and whether trial and appellate counsel were ineffective for respectively failing to object to this testimony, and for failing to raise this issue in original postconviction and appellate proceedings. We conclude that Townsend’s alleged reasons for failing to previously raise this issue are insufficient to overcome the procedural bar of State v. Escalona-Naranjo, 185 Wis. 2d 168, 185‑86, 517 N.W.2d 157 (1994). Therefore, we affirm.
¶2 A jury found Townsend guilty of first-degree reckless
homicide and two counts of first-degree recklessly endangering safety, each as
a party to the crime. The trial court
imposed fifty-six, ten- and ten-year concurrent sentences for these
convictions. On direct appeal, Townsend
unsuccessfully challenged the sufficiency of the evidence.
¶3 Townsend then filed his first postconviction motion pursuant
to Wis. Stat. § 974.06
(2003-04), raising seven issues, including different prosecutorial misconduct
and ineffective assistance claims than those he now raises. The trial court summarily denied the
motion. This court affirmed that order,
rejecting the seven issues Townsend raised, including his ineffective
assistance of trial counsel claim for failing to object to the prosecutor’s
submission of a different line of allegedly inadmissible evidence.
¶4 Townsend filed a second postconviction motion pursuant to Wis. Stat. § 974.06 (2005-06), alleging prosecutorial misconduct for offering testimony from Townsend’s wife at trial, and correlative ineffective assistance claims against trial counsel for failing to object to this testimony, and against postconviction/appellate counsel for failing to pursue trial counsel’s ineffectiveness. The trial court summarily denied the motion as procedurally barred by Escalona and § 974.06(4).[1]
¶5 To avoid Escalona’s procedural bar, Townsend
must allege a sufficient reason for failing to
have previously raised all grounds for postconviction relief on direct appeal
or in his original postconviction motion.
See Escalona, 185
¶6 In his second postconviction motion, Townsend alleged that he
failed to previously raise this issue because:
(1) he was unaware of a marital privilege until he read a recent case;
and (2) his appellate counsel was ineffective for failing to timely raise that
issue by postconviction motion or on direct appeal. In his appellate brief, Townsend belatedly
alleged that he learned about the marital privilege when he read Crawford
v. Washington, 541 U.S. 36 (2004), in 2006.[2] Even if we were to accept Townsend’s fully
alleged reason as timely, it is not sufficient to allow him yet another
postconviction challenge for his belated discovery of a longstanding marital
privilege. If we were to accept that Crawford,
decided in 2004, is a recent case, Crawford does not apply to
Townsend’s case, and even if it arguably did, it would not help him as Crawford
does not retroactively apply to cases on collateral review. See Whorton v. Bockting, 549
¶7 Townsend has not persuaded us to relax this procedural bar to
accommodate his recent discovery of a longstanding marital privilege in what
was then a two-year-old case.[3] Crawford addressed the statutory marital
privilege recognized by the State of
¶8 Townsend has had the benefit of a direct appeal in which he was represented, and a postconviction challenge in which he represented himself. His current allegations, although different from those he previously raised, are wholly inadequate to demonstrate a prima facie claim of marital privilege, much less prosecutorial misconduct, or ineffective assistance of trial or appellate counsel. Townsend’s claims are procedurally barred by Escalona and Wis. Stat. § 974.06(4), and his barebones allegations are insufficient to compel us to deviate from that procedural bar.
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.
The trial court denied
Townsend’s motion on June 1, 2007.
Townsend moved for relief from that order because he claimed that he did
not timely receive it, and did not become aware of it until he contacted the
trial court clerk to inquire about the status of his motion. Consequently, the trial court vacated and
reinstated its June 1, 2007 order on January 9, 2008, to allow Townsend to
timely appeal. See Edland v. Wisconsin
Physicians Serv. Ins. Corp.,
210
[2] The “sufficient reason” to overcome the procedural bar must be alleged in the postconviction motion itself to afford the trial court the initial opportunity to evaluate the sufficiency of the movant’s reason. See Wis. Stat. § 974.06(4).
[3] Crawford v. Washington, 541 U.S. 36 (2004), was decided March 8, 2004; Townsend alleges he discovered Crawford in 2006.
[4] Townsend alleged that his wife testified about their conversations. Her trial testimony (actual and that recounted through hearsay) was not about her conversations with Townsend, but about what she witnessed and knew in contexts other than from her conversations with him.