COURT OF APPEALS DECISION DATED AND FILED October 6, 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. Sharome A. Powell, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. Sharome
Andre Powell, pro se, appeals an
order denying his Wis. Stat. § 974.06
(2007-08)[1]
motion to vacate his no contest plea.
The circuit court concluded Powell’s motion was foreclosed by State
v. Escalona-Naranjo, 185
¶2 On November 29, 2000, Powell was charged with armed robbery with the use of force, theft of movable property, and attempted armed robbery with the use of force, all as party to a crime. The criminal complaint incorporated incriminating statements Powell had given to police about his own participation. Powell, represented by counsel, initially pled not guilty.
¶3 Following competency and other mental health exams, Powell pled guilty to the second and third counts on November 21, 2001, and he was sentenced on January 10, 2002. The armed robbery count had remained on the trial calendar, but Powell pled no contest to that charge on February 8, 2002. He was sentenced to eight years’ initial confinement and four years’ extended supervision, concurrent with the sentence for the other two charges. Powell did not pursue a direct appeal.
¶4 In February 2004, Powell, now appearing pro se, moved for a “Goodchild Evidentory” [sic] hearing,[2] alleging ineffective assistance of counsel and a Brady violation.[3] Accompanying his request was a motion to suppress the statements he had given to police. The motion alleged police took a statement “which was not voluntary” because of “duress, physical and mental[.]” The trial court denied Powell’s motion noting his pleas waived any challenges to the circumstances of his arrest, while the remaining claims were “entirely conclusory” and lacked a basis for relief. Powell did not appeal.
¶5 On September 11, 2007, Powell filed a motion for sentence modification, invoking both Wis. Stat. § 973.19 and the presence of new factors. His motion alleged the State had breached the plea agreement and he complained trial counsel was ineffective for not introducing enough mitigating factors. Powell also argued there was a new factor—witnesses who would testify Powell had no idea his co-actors were planning to commit any crimes. The circuit court denied the motion, holding that the sentencing transcript clearly showed there was no breach of the plea agreement and that the remaining claims were conclusory. Powell did not appeal.
¶6 On October 15, 2008, Powell filed a motion to vacate his no contest plea.[4] He complained his statements to police were involuntary and coerced and the circuit court therefore erred in relying on these involuntary admissions during sentencing. The court denied the motion. It concluded that to the extent Powell was raising the same issues he previously raised in 2004 or 2007, those issues were barred and, to the extent he was raising new issues, they were waived. Powell appeals.
¶7 Wisconsin Stat. § 974.06
permits some claims for relief to be brought after the time for appeal or other
postconviction remedy has expired. See § 974.06(1). However, “[a]ll grounds for relief available
to a person under this section must be raised in his or her original,
supplemental or amended motion.” See § 974.06(4). The purpose of subsec. (4) “is clear: to
require criminal defendants to consolidate all their postconviction claims into
one motion or appeal.” Escalona, 185
¶8 Whether Powell’s motion was procedurally barred by Escalona
is a question of law we review de
novo. See State v. Tillman, 2005 WI App 71, ¶14, 281
¶9 First, the Escalona bar is not limited to prior
Wis. Stat. § 974.06
motions. That is, it is not necessary
for prior motions to have been brought under § 974.06 for there to be a
preclusion of issues, raised in a current motion, which were or which could
have been raised in those prior motions.
See Escalona, 185
¶10 Second, while Powell’s Wis.
Stat. § 973.19 motion for sentence modification, brought in 2007, does
appear untimely,[7]
the motion also alleged new factors in an attempt to justify modification. As Powell himself pointed out in that motion,
a sentence modification motion based on a new factor is not subject to the same
limitations as a § 973.19 motion. See State v. Noll, 2002 WI App 273, ¶¶9‑11,
258
¶11 Third,
¶12 Powell’s fundamental basis for relief in his 2008 motion was that his incriminating statements to police were allegedly coerced. This issue was raised and rejected in 2004.[8] Wisconsin Stat. § 974.06(4) and Escalona therefore bar relitigation of the issue. Likewise, anything in the 2008 motion that is not repetitive of the earlier motions could have and should have been raised in 2004 or 2007, and Powell fails to offer “sufficient reason” for not raising the issues previously.
¶13 In any event, Powell’s claims would fail on the merits. He presently seeks to withdraw his plea but
offers no evidence that the plea itself was invalid. There is a plea questionnaire/waiver of
rights form in the record, and the colloquy appears adequate. Powell complains about a coerced statement
but the court properly noted in 2004 that the valid pleas waived that challenge. See
State
v. Milanes, 2006 WI App 259, ¶13, 297
By the Court.—Order affirmed.
This opinion shall not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2]
[3] Powell’s
motion references “Brady vs. United States Supreme Court.” It appears he may have meant to cite Brady
v. United States, 397 U.S. 742 (1970), and he cited it in support of
the proposition that a constitutional violation always results in immediate
reversal. That argument is, of course,
false: “most constitutional errors can
be harmless.” See
[4] Powell did not move to vacate his two guilty pleas.
[5] State
v. Loop, 65
[6] Powell
also claims that State v. Escalona-Naranjo, 185
[7] Under Wis. Stat. § 973.19(1), a defendant must move for sentence modification within ninety days of entry of the sentence if transcripts have not been ordered or, if they have been ordered, within sixty days of the final transcript’s service. See also Wis. Stat. Rule 809.30(2)(h).
[8] Powell’s claims that Escalona is inapplicable because he presented an amended motion with proper argument on his previously rejected “Conclusory” claims. Powell’s 2008 motion is not properly considered an amended version of the 2004 motion and, in any event, Powell’s claim relating to the coerced statement was the one issue the court did not dismiss as conclusory. Instead, the court noted that such a challenge was waived by his plea.
[9] Arguments
that are raised for the first time on appeal are generally not considered. See
Wirth
v. Ehly, 93