COURT OF APPEALS DECISION DATED AND FILED December 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 Nos. |
2009AP397 |
1990CF566 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of Plaintiff-Respondent, v. George H.
Peters, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Vergeront, Lundsten and Higginbotham, JJ.
¶1 PER CURIAM. George Peters appeals an order denying his Wis. Stat. § 974.06 (2007-08)[1] motion for postconviction relief. He was convicted in 1991 on two counts of armed robbery and two counts of felon in possession of a firearm, as a repeat offender on all counts. His rights to seek postconviction relief under Wis. Stat. Rule 809.30 were exhausted in 1995 after an appeal to this court and a petition to the supreme court. He contended in his § 974.06 motion that he received ineffective assistance from postconviction counsel in his Rule 809.30 proceeding because counsel failed to raise various meritorious issues concerning the circuit court proceeding and his representation by trial counsel during that proceeding. He contends on appeal that the trial court erred by denying the motion without a hearing. We affirm.
¶2 Peters was a passenger in a car stopped by police. The police discovered a firearm in Peters’ suitcase following a search of the vehicle pursuant to the driver’s arrest. After a criminal records check revealed that he had felony convictions, he was arrested as a felon in possession of a firearm. He was subsequently tried and found guilty by a jury on the two armed robbery and two possession charges and was sentenced and convicted as a repeat offender. He received consecutive thirty-year sentences for the robberies, and ten- and four-year sentences on the firearm possessions, the former concurrent to the robbery sentences and the latter consecutive to them.
¶3 The Wis. Stat. § 974.06 motion Peters filed in 2008 alleged that trial counsel and/or postconviction counsel were ineffective because they failed to pursue the following issues: (1) he was arrested without probable cause for possessing a handgun as a felon, because the information police had about his felony record was incorrect; (2) he was sentenced on inaccurate information because the circuit court considered the same incorrect information about his record at sentencing; (3) the court sentenced him to ten years in prison on one of the firearm possession charges when the maximum sentence allowed by statute was eight years; and (4) the court sentenced him to four years as a repeater without first imposing the maximum underlying two year sentence on the other possession charge.
¶4 The court acknowledged that Peters’ ten-year sentence exceeded the maximum, but denied relief because he had already finished serving that sentence. The court otherwise denied relief, without a hearing, because the error in the sentencing information about Peters’ felony record was merely a technical defect, the officer who arrested Peters had information on other felony arrests as well, and the sentencing court was not required to impose a maximum sentence on the underlying offense before sentencing Peters as a repeater. On appeal Peters contends that each of his claims warrants a hearing.
¶5 The circuit court need not hold a hearing on a claim of
ineffective counsel if the defendant fails to allege facts that, if true, would
entitle the defendant to relief, or the record conclusively demonstrates that
the defendant is not entitled to relief. See State
v. Allen, 2004 WI 106, ¶9, 274
¶6 There is no dispute, and never has been, that Peters was
convicted of armed robbery, in a
¶7 In addition, even assuming he was illegally arrested, his
arrest did not lead to any evidence that was arguably suppressible because of
the arrest. The handgun that Peters
seeks to suppress was discovered while the deputy was searching the vehicle Peters’
friend was driving pursuant to the friend’s arrest. That is, the weapon’s discovery was not
related to Peters’ arrest for possessing the handgun as a felon. Thus, even if police did not have probable
cause to arrest Peters, the record conclusively demonstrates that trial counsel
had no reason to pursue the issue, because the State either discovered the
evidence used to convict Peters before the arrest, or independent of the
arrest. See State v. Anderson, 165
¶8 It was also the fact of the conviction, and not the date and venue, that was material to his sentencing. Consequently, there would have been no benefit to Peters had trial counsel raised the matter at sentencing. The error would have been subject to correction, and nothing more. See Wis. Stat. § 971.26 (non-prejudicial, technical errors in the complaint have no effect on proceedings). In short, the record conclusively demonstrates that neither counsel performed ineffectively by failing to raise this issue, either in the suppression or sentencing context.
¶9 There is no requirement in
¶10 Peters no longer has a viable claim regarding the unlawful ten-year sentence imposed on the other firearm possession count. Under Wis. Stat. § 973.13, the time imposed over the maximum is voided and the sentence commuted to the maximum eight years, which Peters finished serving in 1999. No other remedy is now available and, in any event, because the sentence has expired, Peters can no longer challenge it under Wis. Stat. § 974.06. See Wis. Stat. § 974.06(1).
By the Court.—Order affirmed.
This opinion will 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] For reasons that are unclear, the State’s brief asserts that Peters’ Fourth Amendment challenge to the search that revealed the firearm is an issue that he finally litigated in his first appeal, and cannot now litigate again. That is true but beside the point. The issue he raises in this appeal is not the legality of the search, but the legality of his subsequent arrest.