COURT OF APPEALS DECISION DATED AND FILED April 13, 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. Derrick D. Brown, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Derrick D. Brown, pro se, appeals a circuit court order denying his Wis. Stat. § 974.06 (2007-08)[1] motion as both procedurally barred and lacking merit. Brown asserts that Wis. Stat. § 973.15(2) (1979-80) prohibits his sentences in this case from running consecutive to an earlier sentence. We agree with the circuit court that the motion is procedurally barred, and we affirm the order.
¶2 In the underlying matter, Brown was charged with two counts of burglary. He pled guilty and on December 19, 2002, he was sentenced to two years’ initial confinement and two years’ extended supervision on each count. The sentences were set to run consecutively to each other and to any other sentence, including a sentence of seven years’ initial confinement and ten years’ extended supervision that Brown had received on December 17, 2002.[2]
¶3 Brown pursued postconviction relief in the present case. A no-merit appeal was filed on his behalf and
the no-merit report addressed, in relevant part, the circuit court’s sentencing
discretion. Brown filed a response to
the no-merit report, but evidently did not challenge the consecutive nature of
his sentences.[3] This court summarily affirmed the judgment of
conviction.
¶4 On June 20, 2005, Brown moved for sentence modification.[4] He argued that under Bruneau v. State, 77
¶5 On January 27, 2009, Brown filed a new motion for sentence modification, which the circuit court interpreted as claiming consecutive sentences were unduly harsh. The court rejected the motion because Brown had not set forth a new factor to justify sentence modification, nor was the motion timely under Wis. Stat. § 973.19 or Wis. Stat. Rule 809.30. Brown did not appeal.
¶6 On April 3, 2009, Brown filed a motion for postconviction relief
under Wis. Stat. § 974.06,
claiming his sentence was illegal based on State v. Zollicoffer[6]
and Wis. Stat. § 973.15(2)
(1979-80). The circuit court denied the
motion as procedurally barred by State v. Escalona-Naranjo, 185
¶7 On appeal, Brown asserts that his sentence violates Wis. Stat. § 973.15(2), and he
argues that he is not precluded from raising this argument because both appellate
counsel and this court failed to notice and address the issue during the
no-merit process.
¶8 “It is well-settled that a defendant must raise all grounds
for relief in his or her original, supplemental or amended motion for postconviction
relief.”
¶9 A prior no-merit appeal “may serve as a procedural bar to a
subsequent postconviction motion … which raises the same issues or other issues
that could have been previously raised.”
Tillman, 281
¶10 Brown is correct that Tillman may not always apply. When a “joint breakdown in the process” leads
to the no-merit process not being followed, we do not necessarily apply the Tillman
bar to a subsequent postconviction motion. See
State
ex rel. Panama v. Hepp, 2008 WI App 146, ¶16, 314 Wis. 2d 112,
758 N.W.2d 806; Fortier, 289 Wis. 2d 179, ¶27. Here, however, even if the Fortier
exception applied and the Tillman bar could not be invoked
based on Brown’s failure to challenge his sentencing in the 2004 no-merit
response, Escalona and Wis. Stat. § 974.06
would still bar Brown’s current claims.
¶11 Brown’s current claim of an illegal sentence is the same claim that
was raised in his 2005 motion and rejected, on its merits, by the circuit court.[7] Brown cannot re-raise an issue that has already
been adjudicated. Wis. Stat. § 974.06(4); State
v. Witkowski, 163
¶12 Even if the current motion does not raise an issue identical to
what was already adjudicated in the 2005 motion, Brown does not set forth any
reason, much less a “sufficient reason,” to explain why his current claims were
not raised in either the 2005 motion or the first 2009 motion. See Fortier, 289
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] Brown
tells us that he was sentenced on December 17, 2002, in
[3] Neither
the no-merit report nor Brown’s response is in the record. Brown included a copy of the no-merit report
in his appendix, although normally a party may not use an appendix to
supplement the record. See Reznichek v. Grall, 150
[4] It appears that this may have been a Wis. Stat. § 974.06 motion.
[5] Wisconsin Stat. § 973.15(2)(a) (2001-02) provides that, with limited statutory exceptions not applicable here, “the court may impose as many sentences as there are convictions and may provide that any such sentence be concurrent with or consecutive to any other sentence imposed at the same time or previously.”
[6]
[7] For some reason, the State makes no mention of this 2005 motion in its brief.
[8] In
addition, there is no merit to Brown’s current complaint. Aside from the fact that Zollicoffer is
unpublished and therefore of no precedential value, see Wis. Stat. Rule
809.23(3), that case as well as Bruneau v. State, 77