COURT OF APPEALS DECISION DATED AND FILED May 11, 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. Garceia Coleman, 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. Garceia Coleman, pro se, appeals from an order denying
his Wis. Stat. § 974.06
(2007-08)[1]
motion for a new trial. The circuit
court determined that the motion was procedurally barred by State
v. Tillman, 2005 WI App 71, 281 Wis. 2d 157, 696 N.W.2d 574, because
Coleman failed to raise the issues in his motion in response to a prior
no-merit report. Coleman contends Tillman
is inapplicable because, in the no-merit process, appellate counsel and this
court missed the issues he now raises.
Coleman thus believes that, under State v. Fortier, 2006 WI App 11,
289
¶2 In 1990, Coleman and co-defendant John Balsewicz were charged with and tried jointly on charges of first-degree intentional homicide and robbery, as parties to a crime. A jury convicted the duo in May 1991. Coleman was sentenced to life imprisonment with a parole eligibility date in 2065 for the homicide, with an additional ten years’ imprisonment, consecutive, for the robbery. Coleman appealed.
¶3 Counsel filed a thirty-three-page no-merit report in August 1992, to which Coleman responded. Counsel raised multiple issues, including sufficiency of the evidence, while Coleman raised issues that included a complaint of ineffective assistance of trial counsel. We concluded, upon our independent review of the record, that no other issues of arguable merit existed, and we affirmed Coleman’s judgment of conviction in December 1993.
¶4 Coleman took no further action until July 2009, when he filed a pro se motion for a new trial under Wis. Stat. § 974.06. His essential claim is that trial counsel was ineffective for failing to call four witnesses to testify and postconviction counsel was ineffective for failing to preserve the issue. As noted, the circuit court rejected the motion as barred by Tillman. The court also noted that the motion was too conclusory to merit relief. Coleman appeals.
¶5 All grounds for relief under Wis. Stat. § 974.06 must be raised in a petitioner’s original,
supplemental, or amended motion. State
v. Escalona-Naranjo, 185
¶6 When a defendant’s direct appeal is decided through the no-merit
procedure, see Wis. Stat. Rule 809.32, that appeal
“may serve as a procedural bar to a subsequent postconviction motion and ensuing
appeal which raises … issues that could have been previously raised.” Tillman, 281
¶7 The practical effect of Tillman and Fortier is that, in determining whether Escalona operates as a procedural bar following a no-merit appeal, we must attempt to review the merits of the underlying motion. Here, Coleman’s Wis. Stat. § 974.06 motion alleges a “denial of my constitutional right to representation by competent counsel[,]” the “abridgement of a right guaranteed by the constitution or laws of this state[,]” and:
Ineffective assistance of postconviction counsel when postconviction counsel failed to assert a claim of ineffective assistance of trial counsel; when he failed to discover/notice that trial counsel failed to investigate or call to trial to testify witness[es] James C. Blank, Detective Dennis Murphy, John H. Balsewicz, Detective Edward Liebrecht, and failed to submit their statements, reports/records as evidence; in a ss. 974.02 motion before the trial court.
¶8 A postconviction motion must set forth material facts that
would allow the reviewing court to “meaningfully assess” a defendant’s
claims. State v. Allen, 2004 WI
106, ¶¶18, 21-22, 274
¶9 Although Coleman attempts to elaborate on his claim in his
brief,[2]
our review of the postconviction motion is confined to the four corners of the
motion. See State v. Love, 2005 WI 116, ¶27, 284
Allen,
274
¶10 Given the conclusory nature of Coleman’s postconviction motion, he fails to establish that an issue of arguable merit was overlooked by counsel or this court in the no-merit process, and we are not persuaded that there was any breakdown in the procedure, as cautioned by Fortier. Coleman has thus failed to offer a sufficient reason for failing to previously raise, in response to the no-merit report, the issues he currently raises in his postconviction motion.[4] The circuit court correctly determined the motion is barred by Tillman and Escalona.[5]
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] Coleman uses his brief to raise additional issues not included in the postconviction motion. These include poor cross-examination by trial counsel and deprivation of the presumption of innocence through counsel’s attempt to convince the jury to convict on a lesser-included offense. We generally do not consider issues raised for the first time on appeal, Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980), and we see no reason to deviate from that rule here.
[3] For instance, Coleman suggests the detectives could have “elaborated on the accounts” of two witnesses, but does not explain what this means or how it would benefit him. It is also beyond the realm of plausibility for Coleman to imply that he would have had any success eliciting any testimony, much less exculpatory testimony, from his co-defendant during their joint trial.
In addition, we observe that Coleman has included in
his appendix documents that are not a part of the circuit court record. Coleman may not use the appendix to
supplement the record. See Reznichek v. Grall, 150
[4] We note that Coleman did see fit to raise other ineffective assistance arguments in his response to the no-merit report.
[5] In
his reply brief, Coleman asserts that the State previously conceded that procedural
bars did not prevent an appeal by co-defendant Balsewicz following the denial
of his pro se Wis. Stat. § 974.06 motion. Balsewicz’s first appeal following his
conviction was not a no-merit and, in any event, the dispositive issue in
Balsewicz’s pro se appeal was related
to the circuit court’s failure to hold an appropriate competency hearing, an
issue not present in Coleman’s case.