COURT OF APPEALS DECISION DATED AND FILED January 12, 2010 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. James D. Towns, 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. James D. Towns appeals pro se from an order denying his
postconviction motion brought under Wis.
Stat. § 974.06 (2007-08).[1] The circuit court concluded that the motion
was procedurally barred by State v. Escalona-Naranjo, 185
BACKGROUND
¶2 In 1996, Towns and several accomplices participated in the armed burglary of a residence. According to the criminal complaint, Towns shot and killed one of the residents who was fleeing from the scene. The State filed an information charging Towns with first-degree reckless homicide and armed burglary.
¶3 Towns pled guilty to armed burglary. He contested the charge of first-degree reckless homicide, but he waived a jury trial in favor of a trial to the court. Towns also stipulated to the truth of the allegations in the criminal complaint and to a number of other facts and exhibits. Towns confirmed his understanding that the sole issue would be whether he was guilty of first-degree reckless homicide or second-degree reckless homicide. After the court accepted Towns’s stipulations, the matter proceeded immediately to trial. Towns was the sole witness. The circuit court found Towns guilty of first-degree reckless homicide.
¶4 Towns’s appellate counsel filed a no-merit report in this
court. Towns did not file a
response. We accepted the no-merit
report and summarily affirmed Towns’s convictions. See
¶5 Ten years later, Towns filed the postconviction motion underlying this appeal. Towns asserted that his trial counsel was ineffective and that his postconviction counsel failed to raise that claim and therefore was ineffective in turn. Towns also asserted that the circuit court violated his due process rights when it accepted his stipulations and his waiver of the right to a jury trial. Towns demanded a new trial on the charge of first-degree reckless homicide. The circuit court rejected Towns’s postconviction claims as procedurally barred, and Towns appeals.
DISCUSSION
¶6 “We need finality in our litigation. Section 974.06(4) compels a prisoner to raise
all grounds regarding postconviction relief in his or her original, supplemental
or amended motion.” Escalona-Naranjo, 185
¶7 The bar to serial litigation also applies when the direct
appeal was conducted pursuant to the no-merit procedures of Wis. Stat. Rule 809.32. See
Tillman,
281
¶8 Towns has not demonstrated any procedural inadequacy in his
no‑merit appeal. Our discussion in
Towns
I reflects that the no-merit review included a full and thorough
examination of the record. We analyzed
the issues that counsel raised in the no-merit report, and we also discussed
issues that counsel did not examine. We
explained why none of the issues provided any basis for further appellate
proceedings. Our summary affirmance of
Towns’s convictions thus “carries a sufficient degree of confidence warranting
the application of the procedural bar.” See
Tillman, 281
¶9 Because Towns’s no-merit appeal warrants confidence in the outcome, Towns must demonstrate that he had a “sufficient reason” for failing to raise his current claims earlier. See id., ¶19. In an effort to meet that burden, Towns points to a psychologist’s report that he filed with his postconviction motion. The report memorializes the results of a psychological assessment conducted in 1993 when Towns was fifteen years old. Relying on the report, Towns asserts that he “suffers from mental health issues and has a learning disability.” In Towns’s view, the report provides a sufficient reason to permit him to pursue further postconviction litigation. We disagree.
¶10 The psychologist’s report reflects that Towns carries a diagnosis of “impulse control disorder.” The psychologist further concluded that Towns has “a learning disability problem, but it is moderate only.” The report also reflects that Towns’s intelligence classification is “bright normal.” The report provides no basis for concluding that Towns could not submit his current claims during the no‑merit proceeding.
¶11 Towns next asserts that he has a sufficient reason to pursue
his current claims pursuant to State v. Fortier, 2006 WI App 11,
289
¶12 Towns’s first substantive claim is that his trial counsel performed ineffectively because counsel waived Towns’s right to a jury trial. The record does not support that claim. Rather, the record shows that Towns personally waived his right to a jury trial.
¶13 Pursuant to Wis. Stat. § 972.02,
criminal matters are tried by a jury unless the defendant waives the jury in
writing or by statements in open court.
“‘[T]he waiver must be ‘an intentional relinquishment or abandonment of
a known right or privilege.’” State
v. Resio, 148
¶14 In this case, both the circuit court and the State extensively
examined Towns before the court accepted his jury waiver. Towns personally responded to the court’s
direct inquiry and confirmed that he wanted to waive his right to a jury
trial. See State v. Livingston, 159
¶15 Towns also personally confirmed his understanding that if he waived the right to a jury trial, the circuit court alone would decide the question of his guilt, and that the only issue would be whether Towns was guilty of first-degree reckless homicide or second-degree reckless homicide. Towns stated that no one had made any promises to induce him to give up his right to a jury trial and that he had not been threatened. In sum, the record reflects that Towns waived his right to a jury trial only after a thorough colloquy established his knowing and intentional abandonment of the privilege.[2] See id. at 694. This court did not overlook an arguably meritorious challenge to the jury waiver.[3]
¶16 Towns also contends that his trial counsel performed ineffectively by allowing him to enter into stipulations and give testimony that “amount[ed] to a virtual guilty plea [to first-degree reckless homicide] without a plea bargain. It was trickery.” Relatedly, he contends that the circuit court improperly accepted his stipulations in violation of his due process rights because his stipulations “literally meant he was pleading guilty to first-degree reckless homicide.” He asserts that this court improperly conducted its review of the trial proceedings because we overlooked these alleged errors.
¶17 Both first-degree reckless homicide and second-degree reckless
homicide require proof that the defendant caused the victim’s death by criminally
reckless conduct. See Wis. Stat. §§ 940.02(1),
940.06; see also
¶18 Sarabia discusses the special circumstances that arise when
“the defendant presents wholly exculpatory testimony as to the charged offense
but requests a lesser included offense instruction which is directly contrary
to the defendant’s version of the facts.”
[I]t would appear to be inconsistent for the defendant to argue that he did not commit the act which forms the basis for the crime charged, but then to claim that he is entitled to an instruction on a lesser offense which could only be found had the defendant done the underlying act.
¶19 Towns’s trial strategy did not give rise to the special
circumstances that concerned the Sarabia court because Towns’s
trial testimony was not “wholly exculpatory.”
See id. To the contrary, Towns admitted the
underlying act that formed the basis for the crime charged, namely, firing a deadly
shot at the victim. He testified that
during the burglary he looked out of a window and saw one of the occupants of
the residence running away. According to
Towns’s trial testimony, he drew his head back from the window and fired a shot
in the direction of the victim without looking where he was shooting. He testified that he merely intended to
frighten the victim and that he fired the shot with his left hand despite being
right-handed. He explained that he did
not go to the victim’s aid because he thought that he had only shot the victim
“in the butt or something.” He asked the
court to believe his testimony and to conclude that the circumstances did not
show the “utter disregard for human life” required for a first-degree reckless
homicide conviction. See Wis.
Stat. § 940.02(1);
¶20 The circuit court simply did not believe Towns’s trial testimony and concluded that Towns’s earlier statement to the police was “much more credible.” Based on that earlier statement, the circuit court found that Towns “put his head out the window and saw [the victim] running away and he fired.” Therefore, the circuit court found Towns guilty of first-degree reckless homicide.
¶21 In Towns I, this court correctly concluded that Towns’s trial
afforded him the opportunity for an acquittal on the more serious homicide
charge and a conviction on the lesser-included charge. We explained that “the circuit court could
have believed Towns’s testimony that might have warranted a reduction in the
charge to second-degree reckless homicide.”
¶22 Nothing in Towns’s submission demonstrates either that this court overlooked arguably meritorious claims during the no-merit proceeding, or that Towns had any other sufficient reason for failing to raise all of his grounds for relief during that appeal. The circuit court therefore correctly applied a procedural bar to prevent Towns from pursuing his postconviction motion.
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] Under
current law, a personal colloquy with the defendant must accompany a jury
waiver. See
[3] We do not separately address Towns’s assertions that his trial counsel “knew that [Towns] had psychological problems and that his academic level was equal to that of a 4th or 5th grader.” Towns bases these contentions on the 1993 psychological report, and he suggests that the report serves to undermine the voluntariness of his jury waiver. Towns does not demonstrate that the 1993 report reflected his education level or his mental health status in 1996. Indeed, the record reflects that at the time of the waiver Towns had completed the tenth grade.
[4] The elements of first-degree reckless homicide pursuant to Wis. Stat. § 940.02(1), and the elements of second-degree reckless homicide pursuant to Wis. Stat. § 940.06, are the same today as they were at the time of Towns’s trial. Compare Wis. Stat. §§ 940.02(1), 940.06 (1995-96), with Wis. Stat. §§ 940.02(1), 940.06 (2007-08).