COURT OF APPEALS DECISION DATED AND FILED April 6, 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. Pharoah Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Pharoah Vernon Morris appeals
from an order denying clarification and reconsideration of a postconviction
order summarily denying a motion for relief from his 1999 judgment of
conviction for armed robbery. The issue
is whether a void judgment may be properly challenged at any time, thereby
avoiding the “sufficient reason” requisite of State v. Escalona-Naranjo,
185
¶2 In 1998, a jury found Morris guilty of armed robbery as a
party to the crime. In 1999, the trial
court imposed a thirty-year sentence to run consecutive to any other sentence,
with a parole eligibility date of May 17, 2009.
Morris appealed, contending that he was denied his right to a speedy
trial.
¶3 In late 2008, Morris moved for relief from the 1999 judgment of conviction, contending that it was void because the charge was allegedly amended at sentencing; he also raises a correlative ineffective assistance of counsel claim. The trial court construed the motion to be under Wis. Stat. § 974.06 and summarily denied it as procedurally barred pursuant to Escalona and § 974.06(4), and because his “allegations [we]re conclusory and insufficient.” Morris then moved for clarification and reconsideration, claiming that he sought relief pursuant to Wis. Stat. § 806.07, not § 974.06. The trial court denied reconsideration because § 806.07 applies to civil judgments, and even if it applies to criminal judgments, Morris’s ten-year delay did not constitute a one-year or a reasonable delay as contemplated by § 806.07(2). The trial court reiterated the requirement to allege all grounds for postconviction relief on direct appeal, ruling that Morris’s motion was procedurally barred by Escalona and § 974.06(4). Morris appeals.
¶4 To avoid Escalona’s procedural bar, Morris
must allege a sufficient reason for failing to have previously raised all
grounds for postconviction relief on direct appeal or in his original
postconviction motion. See
Escalona, 185
¶5 Morris moved for relief from judgment pursuant to Wis. Stat. § 806.07(1)(d), contending that the judgment was void. Morris did not allege any reason for his delay, contending that no reason was required pursuant to § 806.07(1)(d) and (2). He consequently contends that he has either “a reasonable time” to bring his motion, pursuant to § 806.07(2), or no deadline because a void judgment may be challenged at anytime because it is inherently invalid.
¶6 Morris is in error. A belated constitutional challenge to a judgment of conviction is cognizable pursuant to Wis. Stat. § 974.06(1). See Wis. Stat. § 967.01 (“Chapters 967 to 979 shall govern all criminal proceedings and is effective on July 1, 1970.”) Consequently, Morris’s challenge to the validity of his 1999 judgment of conviction is properly cognizable pursuant to § 974.06, not Wis. Stat. § 806.07, which expressly applies to civil judgments. See Wis. Stat. ch. 806 (entitled, Civil Procedure – Judgment).[2]
¶7 Contrary to Morris’s contention, the trial court did not err
by construing his challenge to the validity of his judgment of conviction
pursuant to Wis. Stat. § 974.06. As such, Morris was required to allege a
“sufficient reason” for failing to previously challenge the validity of his
1999 judgment of conviction. See § 974.06(4); Escalona,
185
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.
[2] See also Wis. Stat. § 801.01(2) (Wis. Stat. chs. 801 to 847 govern all civil proceedings).
[3] Even if the motion were properly cognizable pursuant to Wis. Stat. § 806.07(1)(d), the trial court would require a showing on why a ten-year delay constituted “a reasonable time” pursuant to § 806.07(2).