COURT OF APPEALS
DECISION
DATED AND FILED
January 21, 2009
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
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Ontario Antwan Davis,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Milwaukee County: JEFFREY
A. KREMERS, Judge. Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. This appeal arises from
the latest in a series of motions filed by Ontario Antwan Davis following his
1997 criminal convictions. By decision
and order dated December 10, 2007, the circuit court denied both Davis’s motion for relief
from an allegedly void sentence and his motion for relief from postconviction
orders entered in 2006. We affirm.
BACKGROUND
¶2 According to the criminal complaint, Davis and a co-actor shot and killed Kevin
Gibson during an apparent drug transaction or robbery. Pursuant to a plea agreement, Davis entered guilty
pleas to two offenses: (1) second-degree
reckless homicide while armed as party to a crime, which carried a maximum prison
sentence of fifteen years;
and (2) first-degree reckless endangerment while armed, which carried a maximum
prison sentence of nine years. At the plea hearing, the State explained that
the reckless endangerment charge was based on Davis having fired his gun in the direction
of a second victim who was never identified.
The circuit court accepted Davis’s
guilty pleas and imposed consecutive maximum sentences.
¶3 Davis
appealed his convictions pursuant to the no-merit procedure of Wis. Stat. Rule 809.32 (1997-98). His appointed counsel filed a no-merit report,
and Davis filed
a response. This court summarily
affirmed. See State v. Davis, No. 1998AP1623-CRNM, unpublished slip op. (Wis. Ct. App. Jan. 11,
1999) (Davis I).
¶4 In August 2001, Davis
filed a postconviction motion pursuant to Wis.
Stat. § 974.06 (1999-2000).
All four of his claims related to his contention that the charge of
reckless endangerment lacked a factual basis.
The circuit court denied the motion, and this court affirmed. We held that the claims Davis presented in his motion were raised and
rejected in the no-merit proceeding. See State
v. Davis, No. 2001AP2235, unpublished slip op. (WI App Oct. 18, 2002) (Davis
II).
¶5 In 2006, Davis
filed a postconviction motion seeking modification of his sentence for reckless
endangerment based on an alleged new factor and a claimed abuse of sentencing
discretion. By order dated May 26, 2006,
the circuit court denied the motion and, by order dated June 9, 2006, the
circuit court denied Davis’s
motion for reconsideration. Davis appealed, and this
court affirmed. See State v. Davis, No. 2006AP1534-CR, unpublished slip op. (WI App
Mar. 13, 2007) (Davis III). We agreed
with the circuit court’s conclusion that Davis’s sentence modification claims
were procedurally barred by State v. Escalona-Naranjo, 185
Wis. 2d 168, 517 N.W.2d 157 (1994).
Davis III, No 2006AP1534-CR, ¶¶8-11. We further determined that the claims were
substantively meritless. Id.,
¶¶12-19.
¶6 On November 27, 2007, Davis
filed the postconviction motions underlying this appeal. Pursuant to Wis. Stat. § 806.07 (2005-06),
Davis moved the
circuit court for relief from the orders entered on May 26, 2006, and June 9,
2006. In a separate motion, Davis claimed that his
sentence for second-degree reckless homicide exceeds the statutory maximum and
should be modified pursuant to Wis.
Stat. § 973.13. The circuit
court denied both motions, and this appeal followed.
DISCUSSION
¶7 We first consider Davis’s
efforts to secure relief from his sentence for first-degree reckless
endangerment by filing a motion pursuant to Wis.
Stat. § 806.07. Application
of a statute to a set of facts presents a question of law that we review de novo.
See
State v.
Bodoh, 226 Wis. 2d
718, 724, 595 N.W.2d 330 (1999).
¶8 Wisconsin Stat. § 806.07 permits a court to
relieve a party from a judgment, order, or stipulation if the movant makes a
proper showing. The statute applies in
civil actions. See State ex rel. Lewandowski v. Callaway,
118 Wis. 2d
165, 172, 346 N.W.2d 457 (1984). Davis does not cite any
authority to support a contention that § 806.07 applies to sentence
modification proceedings. Rather, Davis acknowledges that
“cases suggest[] that § 806.07 does not apply to criminal appeals.” Nonetheless, Davis contends that the statute should apply
here because he is otherwise without a remedy. Davis’s
argument is little more than an emotional appeal, and we reject it. See State v.
Armstead, 220 Wis. 2d
626, 641‑42, 583 N.W.2d 444 (Ct. App. 1998).
¶9 Moreover, Davis’s
claim for relief from the circuit court’s orders could not succeed even if Wis. Stat. § 806.07 were
applicable. Davis asserts that the original no-merit
proceeding was procedurally defective because this court did not discuss his
sentences in Davis I. He concludes
that the circuit court therefore erred in applying a procedural bar to his
subsequent postconviction motion for sentence modification. See
State
v. Tillman, 2005 WI App 71, ¶20, 281 Wis. 2d 157, 696 N.W.2d 574
(in considering whether to apply procedural bar following a no-merit appeal,
court should consider whether no-merit procedures were followed).
¶10 We expressly considered and rejected Davis’s argument in Davis III. There, we barred Davis from bringing his sentence modification
motions subsequent to his no-merit appeal because “the no-merit procedures were
followed [in Davis I] and the record demonstrates a sufficient degree of
confidence in the result.” Davis
III, No. 2006AP1534-CR, ¶10. Our
decision governs this litigation. “A
decision on a legal issue by an appellate court establishes the law of the case
that must be followed in all subsequent proceedings in the case in both the
circuit and appellate courts.” State
v. Casteel, 2001 WI App 188, ¶15, 247 Wis. 2d 451, 634 N.W.2d 338. Accordingly, the circuit court properly
refused to consider Davis’s
claim that there were inadequacies in the no‑merit proceeding warranting
further litigation of the sentence modification motions.
¶11 We turn to Davis’s
claim that his sentence for second-degree reckless homicide while armed exceeds
the statutory maximum and must be modified pursuant to Wis. Stat. § 973.13.
Davis
contends that the sentence for this offense was “based exclusively on the
victim described in [the homicide charge].”
In his view, the reckless endangerment count “had no factual basis
whatsoever … and was simply used as a tool to enhance the sentence imposed [for
reckless homicide].” He concludes that
he is serving a twenty-four-year sentence for reckless homicide while armed,
and that the sentence is void to the extent that it exceeds fifteen years.
¶12 Although couched as a challenge to the validity of his sentence
for reckless homicide, Davis’s
claim is that the evidence was insufficient to support the reckless endangerment
charge and, therefore, insufficient to support a sentence for that
offense. As we held in three prior
appeals, Davis’s
guilty plea waived any claim that the reckless endangerment count lacks a
factual basis. Davis I, No. 1998AP1623-CRNM
at 2-3; Davis II, No. 2001AP2235 at 2; Davis III, No. 2006AP1534-CR,
¶16. Our determinations resolved a
question of law. See State v. Kelty, 2006 WI 101, ¶13, 294 Wis. 2d 62, 716 N.W.2d 886
(determination of whether guilty plea waived right to appeal an issue is a
question of law). Accordingly, our prior
holdings that Davis
waived his challenge to the sufficiency of the evidence are binding on the
circuit court and on this court as the law of the case. See
Casteel,
247 Wis. 2d
451, ¶15.
¶13 In his reply brief, Davis asserts that his challenge “was also
premised on the fact that in pronouncing sentence, the [circuit] court did not
even mention count two – first-degree reckless [sic] endangering safety – and
for [the court of appeals] to discern or conclude that the charge was actually
considered is unfair.” This argument
renews Davis’s
claim that the circuit court erroneously exercised its sentencing
discretion. We considered and rejected
that contention in Davis III. We will not
revisit it here. “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).
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.