COURT OF APPEALS DECISION DATED AND FILED July 13, 2010 A.
John Voelker Acting 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 |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. William Edwards, Defendant-Appellant. |
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APPEAL
from orders of the circuit court for
M. joseph donald, Judge. Affirmed.
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. William Edwards, pro se, appeals from orders denying his
second Wis. Stat. § 974.06
motion and a motion for reconsideration.
Williams asserts the circuit court improperly applied the procedural bar
of State
v. Escalona-Naranjo, 185
BACKGROUND
¶2 In 2003, Edwards pled guilty to five counts of armed robbery, while concealing identity, as party to a crime. He was sentenced to thirteen years’ initial confinement and ten years’ extended supervision on each count, with all five sentences running concurrently. Appellate counsel filed a no-merit report, to which Edwards did not respond. This court summarily affirmed the judgment of conviction on January 31, 2005.
¶3 In September of 2005, Edwards filed a pro se Wis. Stat. § 974.06
motion, alleging six bases for relief.
The circuit court rejected the motion as barred by both Escalona
and State
v. Tillman, 2005 WI App 71, 281
¶4 In October of 2009, Edwards filed another pro se Wis.
Stat. § 974.06 motion, seeking “review on the merits of the issues”
therein. The motion alleged that trial
and postconviction counsel were ineffective for failing to correct the circuit
court’s reliance on inaccurate information and other errors at sentencing.[2] Attempting to explain why these issues had
not been raised on direct appeal, Edwards alleged “ineffectiveness of
postconviction or appellate counsel in failing to raise … an issue on the
defendant’s direct appeal” and counsel’s “failure to raise an arguably
meritorious issue in a no-merit report[.]”
Edwards cited State ex rel. Rothering v. McCaughtry, 205
¶5 The circuit court denied the motion. It explained that while Rothering acknowledges that ineffective assistance of postconviction counsel in failing to raise an issue may be “sufficient reason” to avoid the Escalona bar, Rothering does not recognize the defendant’s failure to raise an issue as sufficient reason. Thus, because Edwards failed to raise the issues from his 2009 motion either in response to the no-merit report or in his 2005 motion, the 2009 motion was procedurally barred.
¶6 Edwards sought reconsideration, directing the court’s
attention to the previously cited Panama, which he argued “determined
that since trial, postconviction, and appellate counsel failed to preserve,
present and argue an issue in the no-merit report, the issues may be raised
directly to the circuit court under the claim of ineffective
assistance[.]” The circuit court
rejected Edwards’s interpretation of
DISCUSSION
¶7 On appeal, Edwards phrases the issue as: “Can a defendant seek collateral review, if he
did not file a response to his no-merit report filed by counsel pursuant to Wis.
Stat. § 809.32?” The answer to the question
is, generally, “No.” Under Wis. Stat. § 974.06(4), a
defendant is obligated to raise all claims for relief in his “original, supplemental
or amended motion.” An “original, supplemental
or amended motion” includes the first direct appeal. See
Escalona,
185
¶8 Tillman does not always apply, however: when a “joint breakdown in the process” leads
to the no-merit process not being followed, we do not necessarily invoke the Tillman
bar against a subsequent postconviction motion.
See Panama, 2008 WI App 146, ¶16, 314
¶9 Edwards fails to establish that the Fortier exception to Tillman
exists in this case. Fortier
saves a case from Tillman only if there is a “joint breakdown” in the no-merit procedure. This requires that both appellate counsel and
this court miss a potential issue of arguable merit. Edwards’s appellate brief does not present
any discussion of a failure of the no-merit process.[4] That is, Edwards never identifies any
potential issues of arguable merit that this court, or even appellate counsel,
failed to identify and pursue. We do not
abandon our neutrality to develop a party’s arguments, see M.C.I., Inc. v. Elbin, 146
¶10 Even if the Fortier exception did apply, and the Tillman bar was not invoked, Escalona and Wis. Stat. § 974.06 would still bar Edwards’s current claims. Discounting the no-merit report and Edwards’s failure to respond, the present motion remains procedurally barred because the issues in it could have been raised in the 2005 pro se motion. Edwards offers no explanation, much less sufficient explanation, for his failure to include his current issues in his previous quest for relief. “Ineffective assistance” of counsel, as claimed by Edwards, might in some cases explain a defendant’s failure to respond to an issue in a no-merit response, or occasionally even explain a failure to file any response at all. Ineffective assistance does not, however, explain Edwards’s own failure to sufficiently raise all grounds for relief in his 2005 motion. For that reason, the 2009 motion is procedurally barred. The circuit court properly denied the motion and reconsideration.[5]
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Under
Wis. Stat. § 974.06(4), the
procedural bar applies unless the defendant has a sufficient reason for failing
to raise an issue previously.
[2] These other errors included an alleged violation by the circuit court of Edwards’s right to remain silent and an erroneous setting of restitution.
[3] The
issue in Panama was whether, after State v. Fortier, 2006 WI App 11,
289 Wis. 2d 179, 709 N.W.2d 893, a habeas
corpus petition pursuant to State v. Knight, 168 Wis. 2d
509, 520, 484 N.W.2d 540, 544 (1992), was still an available avenue for
ineffective-assistance-of-appellate-counsel claims or whether, as the State
argued, a Wis. Stat. § 974.06
motion was the sole remedy. See State
ex rel. Panama v. Hepp, 2008 WI App 146, ¶¶2–3, 314
[4] Edwards complains that the circuit court, in reviewing the 2009 motion, failed to inquire whether the no-merit process had been followed. However, this court previously ruled that the correct procedures had been followed. See supra, ¶3.
[5] The
State perceives Edwards to be raising an additional argument—that procedural
bars should not apply because he was unaware of the consequences of failing to
respond to the no-merit report. To the
extent Edwards proffers his ignorance as an explanation for his failure to
reply to the no-merit report, it fails for two reasons. First, Edwards does not show that this
lack-of-knowledge argument was ever raised in the circuit court. This court ordinarily will not consider
issues raised for the first time on appeal.
See Wirth v. Ehly, 93
Additionally, Edwards appears to blame the clerk of this court for failing to advise him of the perils of not responding to a no-merit report. However, our clerk does not dispense legal advice.