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COURT OF APPEALS DECISION DATED AND FILED March 24, 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 |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Earl Jones, Jr., Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Earl Jones, Jr., appeals from an order summarily denying his postconviction motions for a new trial and for the appointment of counsel.[1] Jones raises the issues of whether the trial court erroneously exercised its discretion in failing to: (1) compel the State to analyze and compare a splinter of wood recovered from the victim with the wood from the bat used to beat the victim; (2) act in response to the prosecutor’s allegedly improper comments during closing argument; and (3) instruct the jury to sign only one verdict relating to felony murder and armed robbery. We conclude that Jones’s fourth postconviction motion is procedurally barred for his failure to currently allege a sufficient reason for failing to previously raise or for renewing these issues as required by State v. Escalona-Naranjo, 185 Wis. 2d 168, 185‑86, 517 N.W.2d 157 (1994) and State v. Tillman, 2005 WI App 71, ¶¶25‑27, 281 Wis. 2d 157, 696 N.W.2d 574.[2] Therefore, we affirm.
¶2 In 1997, a jury found Jones guilty of armed robbery, and of
felony murder based on the predicate offense of armed burglary. The trial court imposed a twenty-five-year
sentence for the armed robbery and a sixty-year consecutive sentence for the
felony murder. Jones’s appellate counsel
pursued a no-merit appeal; Jones sought to retain private counsel. We consequently extended Jones’s deadline to
respond to the no-merit report. Nothing
further was filed from another lawyer or from Jones in response to the no-merit
report. We conducted an independent
review of the record, as required by Anders v. California, 386
¶3 In 1999, Jones moved for postconviction relief, claiming that
his trial and appellate counsel were ineffective. The trial court summarily denied the motion;
this court affirmed.
¶4 In 2004, Jones moved for postconviction relief, seeking a Brady hearing and DNA testing.[3] The trial court summarily denied the motion. This court affirmed. See State v. Jones, No. 2004AP821, unpublished slip. op. (WI App Nov. 8, 2005).
¶5 In 2006, Jones moved to vacate his conviction and sentence
because appellate counsel pursued a no-merit appeal. The trial court summarily denied the motion
as procedurally barred by Escalona. This court affirmed. See State v. Jones, No. 2006AP2988,
unpublished slip op. (WI App Sept. 18, 2007).
In that decision, we explained:
(1) the necessity to allege a sufficient reason to overcome Escalona’s
procedural bar; (2) Jones’s failure to avoid Escalona’s applicability
by seeking relief pursuant to Wis. Stat.
§ 973.13 (2005-06) and claiming the ineffective assistance of
appellate counsel; (3) why Escalona’s procedural bar was
extended to apply to direct appeals reviewed pursuant to the no-merit procedure
in Tillman,
281 Wis. 2d 157, ¶¶18, 25-27; and (4) how “[t]he record reflects that the
no-merit procedures were followed and provide[] a sufficient degree of confidence
in the result” to avoid the Fortier exception. See Jones, 2006AP2988, unpublished slip
op. ¶14 n.3 (citing Tillman, 281
¶6 Prior explanations notwithstanding, in 2008 Jones filed a motion for a new trial. The trial court summarily denied the motion as procedurally barred by Escalona and Tillman. Jones appeals.
¶7 To avoid Escalona’s procedural
bar, Jones must allege a sufficient reason for failing to have previously
raised all grounds for postconviction relief on direct appeal. See
Escalona,
185
¶8 Jones has been repeatedly advised of Escalona’s requisite of a “sufficient reason” to overcome its procedural bar. Notwithstanding this repeated advice, he failed to allege any reason for failing to raise his current claims previously.[4] Jones instead alleges his reasons in his notice of appeal and in his appellate brief.
¶9 Even Jones’s belatedly alleged reasons are not sufficient; he alleged: (1) the no-merit procedures were not followed pursuant to Fortier; and (2) we have discretion to consider the merits of his issues despite the potential applicability of Escalona. In Jones’s previous appeal, we explained that the Fortier exception did not apply to Jones’s no-merit appeal. See Jones, No. 2006AP2988, unpublished slip op. ¶14. We are not persuaded to exercise our discretion and ignore the procedural bar of Escalona, of which Jones had been repeatedly warned.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2007-08).
[1] Jones does not appeal from the denial of his motion for the appointment of counsel.
[2] The procedural bar referenced in these two cases is the same; we therefore use the case names interchangeably when referring to Escalona’s procedural bar, or Tillman’s procedural bar. See State v. Escalona-Naranjo, 185 Wis. 2d 168, 185‑86, 517 N.W.2d 157 (1994); State v. Tillman, 2005 WI App 71, ¶¶25‑27, 281 Wis. 2d 157, 696 N.W.2d 574.
[3] See Brady v. Maryland, 373 U.S. 83, 87 (1963) (“suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”).
[4] Some
of Jones’s claims have been raised in previous appeals; Escalona also applies to
claims that have already been raised. See Escalona,
185