COURT OF APPEALS DECISION DATED AND FILED December 22, 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. Harvey Lee Brown, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Harvey Lee Brown appeals from an order denying his postconviction motion. The issues are whether appellate counsel was ineffective for failing “to thoroughly examine and present the is[s]ues in his no merit report,” and for failing to allege trial counsel’s ineffectiveness; Brown additionally contends this court erred when it failed to remand this matter on direct appeal for a Machner hearing to litigate trial counsel’s alleged ineffectiveness, and for directing appellate counsel to respond to matters that were not in the appellate record.[1] We conclude that most of Brown’s allegations are procedurally barred either because they have already been decided on direct appeal, or because they should have been raised on direct appeal; appellate counsel’s alleged ineffectiveness in examining and presenting the issues in the no-merit appeal is rejected because this court is obliged to independently review the record to search for every issue of arguable merit incident to the no-merit procedure, and we are empowered to extend the deadline of Wis. Stat. Rule 809.32(1)(f) (2005-06).[2] Therefore, we affirm.
¶2 A jury found Brown guilty of three counts of armed robbery with the threat of force. The trial court imposed three concurrent thirty-five-year sentences, each comprised of twenty-five- and ten-year respective periods of initial confinement and extended supervision. Brown filed a postconviction motion alleging prosecutorial misconduct that was scheduled for an evidentiary hearing. The lay witness in support of Brown’s motion however, failed to appear for the hearing. The trial court denied the motion.
¶3 Appellate counsel pursued a no-merit appeal. Brown responded to counsel’s report and raised concerns that were outside of the record; to understand those concerns, we directed appellate counsel to reply to Brown’s response.
¶4 In a no-merit appeal, the appellate court is obliged to
independently search the record for issues of arguable merit. See Anders v.
¶5 Many of Brown’s concerns involved the claimed ineffective
assistance of trial counsel. We
extensively addressed those concerns, and many others, and ultimately
determined, incident to our obligation to independently review the record, that
further proceedings would lack arguable merit.
See Anders, 386
¶6 Brown also contends that his
appellate counsel was ineffective for failing to raise trial counsel’s
ineffectiveness. Insofar as trial
counsel’s alleged ineffectiveness is concerned, we thoroughly reviewed and
decided that issue.
¶7 Brown also challenges this
court’s directive to appellate counsel to respond to concerns Brown raised in
his response to the no-merit report. Appellate
counsel is permitted to reply to such concerns in Wis. Stat. Rule 809.32(1)(f).
Brown contends that we erred in directing appellate counsel to reply
beyond the statutory deadline for doing so.
We are empowered to extend that deadline. See Wis. Stat. Rule 809.82(2)(a). We did so to facilitate our conscientious
review of Brown’s judgment and postconviction order on direct appeal. See Anders, 386
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2007-08).