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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
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Tracy Tamette Davis,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Milwaukee County: dennis
p. moroney, Judge. Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. In 1995, Tracy Tamette Davis was
convicted of six counts of burglary as an habitual criminal. She appealed, but this court agreed with her
attorney’s assessment that there was no potential merit in further
postconviction or appellate proceedings.
See Wis. Stat. Rule 809.32 (1997-98). Eight years later, Davis sought postconviction relief under Wis. Stat. § 974.06 (2005-06),
arguing that trial counsel had been ineffective for failing to specifically
request concurrent sentences. The
circuit court denied Davis’s motion, and Davis appeals. Because we conclude that the circuit court
correctly held that Davis’s motion was procedurally barred by State
v. Escalona-Naranjo, 185 Wis. 2d
168, 181-182, 517 N.W.2d 157, 162 (1994) (postconviction claims that could have
been raised in prior postconviction or appellate proceedings are barred absent
defendant articulating a sufficient reason for failing to raise the claims in
the earlier proceedings), we affirm.
¶2 Davis
was originally charged with ten burglaries that took place over several
months. Davis, who acknowledged that her
victims were all aged or infirm and therefore more “vulnerable,” accepted a
plea bargain with the State by which four of the burglary charges were
dismissed in exchange for her guilty pleas.
The circuit court imposed consecutive eight-year prison sentences on
each of the six counts to which Davis
pled.
¶3 Davis’s
appellate counsel filed a no-merit report with this court pursuant to Wis. Stat. Rule 809.32 (1997-98), and Davis filed a
response. Together, the report and Davis’s response raised
six issues, including whether the circuit court properly exercised discretion
in imposing the consecutive sentences.
We concluded, upon independent review of the record, that further appeal
on that or any other issue would be without merit. See State v. Davis,
1998AP3154-CRNM, unpublished slip op. (Wis. Ct. App. Apr. 7, 1999).
¶4 Davis
took no further action for eight years, when she filed the motion that is the subject
of this appeal. In her motion, she
argued, in part, that her trial counsel was ineffective for failing to argue
for concurrent, rather than consecutive sentences. She also argued that consecutive sentences
were harsh and unconscionable and that the circuit court had erroneously
exercised its discretion in imposing consecutive sentences.
¶5 The circuit court denied Davis’s
motion, holding first that to the extent Davis
was contesting the circuit court’s exercise of sentencing discretion, her
motion was untimely under Wis. Stat. § 973.19
(2003-04) and Wis. Stat. Rule
809.30 (2003-04). In regard to her claim
that trial counsel had been ineffective for failing to specifically argue for
concurrent sentences, the circuit court held that because she could have raised
that issue in her response to the no-merit report, but did not, the issue was
waived.
¶6 Davis
renews her arguments on appeal. She also
argues that Escalona does not apply because her appellate counsel failed to
raise the issue of concurrent or consecutive sentences in the no-merit report
and she should not be held responsible for failing to raise that issue in her
no-merit response. More specifically,
Davis argues that State v. Fortier, 2006 WI App 11, ¶27, 289 Wis. 2d 179, 192,
709 N.W.2d 893, 899, precludes application of Escalona. We disagree.
¶7 To overcome the Escalona bar to successive
postconviction and appellate proceedings, a defendant must articulate a
sufficient reason for having failed to raise the issue or issues in the earlier
postconviction or appellate proceedings.
Escalona, 185 Wis. 2d
at 181-182, 617 N.W.2d at 162. Whether Escalona
applies to a postconviction claim is a question of law entitled to independent
review. State v. Tolefree, 209 Wis. 2d 421, 424,
563 N.W.2d 175, 176 (Ct. App. 1997).
Before applying that bar in a situation where there has been a prior
no-merit decision, however, this court “must pay close attention to whether the
no merit procedures were in fact followed.
In addition, the court must consider whether that procedure, even if
followed, carries a sufficient degree of confidence warranting the application
of the procedural bar under the particular facts and circumstances of the
case.” State v. Tillman, 2005
WI App 71, ¶¶19–20, 281 Wis. 2d 157, 167-169, 696 N.W.2d 574, 578-580
(no-merit procedure precludes successive postconviction motion raising same or
other issues absent the defendant demonstrating a sufficient reason for failing
to raise those issues through counsel or in a no-merit response).
¶8 In Fortier, this court held that when
postconviction counsel and a reviewing court miss an issue of potential merit,
the Escalona/Tillman
bar does not apply because the defendant has been deprived of the full
examination of the appellate record to which he or she is entitled under Wis. Stat. Rule 809.32. Fortier, 289 Wis. 2d 179, ¶27, 709 N.W.2d at 899. Fortier involved a contention
supported by the record that the defendant’s sentence was illegally raised and
neither appellate counsel nor this court noticed that error. Consequently, the Escalona/Tillman bar did
not apply in Fortier because the no-merit procedure had not been executed
properly. Id.
¶9 Here, unlike Fortier, neither counsel nor this
court missed an issue of potential merit relative to sentencing in general or
to trial counsel’s failure to seek concurrent sentences on Davis’s behalf in
particular. As Davis notes, this court adopted counsel’s
no-merit analysis, but refrained from discussing it at any great length. It does not follow, as Davis suggests, that this court missed any
sentencing issues, however. Counsel’s
analysis was thorough and accurate.
Counsel noted that the circuit court considered on the record: (1) Davis’s criminal record and that, at the
time of the crimes, she had been recently released from prison; (2) Davis’s
victims were elderly and/or in ill health; (3) Davis’s crimes required
sophistication, planning and execution, in that they involved gaining the
confidence of the victims and obtaining entry to their homes before stealing
their valuables; and (4) Davis’s continued failure to reform her behavior made
it unlikely that she would cease her criminal acts. These considerations, as well as the fact
that the burglaries each involved separate plans and execution, provide a
reasonable explanation for the decision to impose consecutive, rather than
concurrent sentences. The fact that the
circuit court properly exercised its sentencing discretion when it imposed
consecutive sentences, that there is record support for that decision, and that
this court considered that issue in the no-merit context, renders Fortier
inapplicable here.
¶10 Because Fortier is inapposite, Escalona
applies. In this instance, Davis challenged the
circuit court’s sentencing decision in her response to the no-merit report, but
did not challenge trial counsel’s failure to argue for concurrent
sentences. In her postconviction motion,
Davis provided
no reason, much less a sufficient reason, for her own failure to raise the
issue in the no-merit context. Under Tillman,
Davis’s
challenge to trial counsel’s performance is barred.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.