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COURT OF APPEALS
DECISION
DATED AND FILED
June 23, 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.
Shun Warren,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Milwaukee County: jeffrey
a. wagner, Judge. Affirmed.
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. Shun Warren, pro
se, appeals from an order denying a motion for postconviction relief filed
under Wis. Stat. § 974.06
(2007-08). Because Warren’s
claims are either procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-82, 517 N.W.2d 157 (1994), or
because they have already been litigated on appeal, see Peterson v. State, 54 Wis. 2d
370, 381, 195 N.W.2d 837 (1972), we affirm.
BACKGROUND
¶2 Warren
pled no contest to a charge of first-degree reckless homicide by use of a
dangerous weapon, party to a crime. Warren was initially
charged with first-degree intentional homicide arising from the killing of
Dashan Morrow. The criminal complaint
alleged that Warren had set up a drug purchase
from Morrow and that Warren
was planning to rob Morrow. When Morrow
arrived at the appointed time and place for the drug transaction, Warren got into Morrow’s
car. A struggle ensued, and Warren shot Morrow several times with a .22 caliber
handgun that Warren
had with him. Warren negotiated a reduction in the charge
to first-degree reckless homicide, denying that he intended to rob Morrow and
claiming that he could not remember the precise facts of the fight with Morrow
because he was under the influence of drugs.
¶3 Prior to sentencing, Warren
moved to withdraw his plea. Among other
things, Warren
claimed that he had not read the criminal complaint which formed the factual
basis for the plea and, therefore, his plea was not knowingly and voluntarily
made. In particular, Warren claimed he was not aware that the
criminal complaint alleged that he planned to rob Morrow, an allegation that he
argued was inaccurate. Warren blamed his former trial attorney for
not providing him with a copy of the criminal complaint before the plea
hearing. Warren also argued that his former trial
attorney had coerced him into entering a plea, because she told him that if he
went to trial, he had no defense and he would be sentenced to life in prison.
¶4 The circuit court denied the plea-withdrawal motion. The circuit court reviewed the plea colloquy
and noted that it had reviewed the specific allegations of the complaint with Warren because Warren
claimed intoxication and lack of memory of the incident. The circuit court stated that it “can’t even
find one shred of evidence or reason that this plea should be withdrawn other
than the fact that Mr. Warren changed his mind.” The circuit court also noted that the
reference in the complaint that Warren
intended to rob Morrow had been rendered irrelevant by the reduction in the
charge to first-degree reckless homicide, a crime that does not include an
element of intent. Subsequently, the
court imposed a forty-year sentence, comprised of thirty years of initial confinement
and ten years of extended supervision.
¶5 Warren
filed a direct appeal of his conviction, and he renewed his plea-withdrawal
argument. In affirming Warren’s conviction, this court stated:
Here, not only was the plea colloquy more than adequate
to establish that Warren entered his plea knowingly, intelligently, and
voluntarily, Warren’s main reason for wishing to withdraw the plea – that he
had not had a chance to read the complaint and, as a result, he was unaware
that the complaint included an allegation that he intended to rob Morrow – was
irrelevant to the charge to which he pled.
Although Warren contended in his postconviction motion and repeats on
appeal that it is uncertain whether he “had the requisite state of mind for the
charge of reckless homicide,” it is clear that first-degree reckless homicide
has no “state-of-mind” element. To
support that charge, there must be allegations of criminally-reckless conduct that
show utter disregard for human life. Wis JI—Criminal 1020 (2002). As the record shows, Warren was intoxicated and carrying a loaded
gun when he got in Morrow’s car to buy marijuana. These undisputed facts alone establish that Warren engaged in reckless
conduct. Warren
and Morrow struggled for some reason, Morrow was shot, and Warren left the car with a package of
marijuana and did nothing to summon help for Morrow. These facts, taken together, establish that
the circumstances of the crime showed utter disregard for human life. Thus, the facts Warren admitted support the charge to which
he pled.
State v. Warren, No. 2005AP2493-CR,
unpublished slip op. at 5 (WI App
Apr. 11, 2005) (Warren I).
¶6 Warren
next sought postconviction relief under Wis.
Stat. § 974.06. Warren again
sought to withdraw his no-contest plea, arguing that his trial attorney
“coerced” him into pleading when she did not tell him that there were witnesses
to his struggle with Morrow, and when she told him that if he did not accept
the State’s plea offer, he faced a first-degree intentional homicide charge and
life in prison. Warren also argued that his trial attorney
was ineffective because she did not obtain a psychological examination of him
until after the plea, despite knowing that he had mental health problems. Finally, Warren argued that his sentence was harsh
because the court held his plea-withdrawal motion against him. The circuit court denied the motion. Warren
appeals, and he raises the same arguments as he did in the circuit court.
DISCUSSION
¶7 A defendant cannot raise an argument in a subsequent
postconviction motion that was not raised in a prior postconviction motion unless
there is a sufficient reason for the failure to allege or adequately raise the
issue in the original motion. Escalona-Naranjo,
185 Wis. 2d
at 181-82. A defendant must “raise all
grounds regarding postconviction relief in his or her original, supplemental or
amended motion.” Id. at 185; see also Wis. Stat. § 974.06(4) (“Any
ground finally adjudicated or not so raised, or knowingly, voluntarily and
intelligently waived … in any other proceeding the person has taken to
secure relief may not be the basis for a subsequent motion,” absent sufficient
reason.).
[A] criminal defendant [is] required to consolidate all
postconviction claims into his or her original, supplemental, or amended
motion. If a criminal defendant fails to
raise a constitutional issue that could have been raised on direct appeal or in
a prior § 974.06 motion, the constitutional issue may not become the basis
for a subsequent § 974.06 motion unless the court ascertains that a
sufficient reason exists for the failure either to allege or to adequately
raise the issue in the appeal or previous § 974.06 motion.
State v. Lo, 2003
WI 107, ¶31, 264 Wis. 2d
1, 665 N.W.2d 756 (citations omitted).
The procedural bar is driven by the “need [for] finality in our
litigation.” Escalona-Naranjo,
185 Wis. 2d
at 185.
¶8 To avoid the procedural bar of Escalona-Naranjo, Warren couches his
current challenges to the effectiveness of his trial attorney as
ineffectiveness of postconviction counsel.
See State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 681-82, 556 N.W.2d 136
(Ct. App. 1996) (The ineffective assistance of postconviction counsel in
failing to raise a meritorious issue can be a sufficient reason to avoid the
procedural bar of Escalona-Naranjo.). However
much of Warren’s
current argument was litigated in his direct appeal, his attempt to circumvent
the procedural bar fails.
¶9 In our earlier opinion, we noted that Warren’s pre-sentence plea-withdrawal motion
included the allegation that “his attorney had coerced him into his plea,
telling him that if he went to trial, he had no defense and that he would be
sentenced to life in prison.” Warren
I, unpublished slip op. at 3.
Because Warren
argued that his trial attorney coerced him on direct appeal, he cannot raise
that argument again. See Peterson,
54 Wis. 2d
at 381.
¶10 In this appeal, Warren
argues that his trial attorney was ineffective because she did not inform him
there were witnesses to his struggle with Morrow. He states that those witnesses were crucial
to his defense because they would corroborate his statement that Morrow was
shot during a struggle over a gun. He
also faults his trial attorney for not obtaining a psychological report
concerning his mental health until after he pled no contest, pointing out that
the report’s suggestion that he should take medication for the rest of his life
was relevant to the issue of intent.
¶11 In our earlier opinion, we held that the alleged misinformation
about Warren’s
intent to rob Morrow was irrelevant. We
also noted that the record showed that Warren
and Morrow “struggled for some reason, Morrow was shot, and Warren left the car with a package of
marijuana and did nothing to summon help for Morrow … facts, [which] taken
together, establish … utter disregard for human life”—the criminally-reckless
conduct element of first-degree reckless homicide. Warren I, unpublished slip op. at
5. Warren’s
continued focus on the issues of intent and that Morrow was shot during a
struggle is little more than a
re-characterization of the arguments made on direct appeal. As we held previously, Warren’s intent was not material to the
charge to which he pled—first-degree reckless homicide. Warren’s
current attacks on the ineffectiveness of trial counsel are substantially
similar to his challenges to trial counsel that he made in his 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).
¶12 Warren
does make one argument that was not raised on direct appeal—the sentencing
court improperly held his attempt to withdraw his plea against him. However, because Warren could have made that argument in his
direct appeal, it is barred by Escalona-Naranjo. See Escalona-Naranjo, 185 Wis. 2d at 181-82.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.