|
COURT OF APPEALS DECISION DATED AND RELEASED June 7, 1995 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule
809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-0044-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KEITH L. FENDERSON,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Racine County:
DENNIS J. FLYNN, Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
NETTESHEIM, J. Keith
L. Fenderson appeals pro se from the denial of his fifth postconviction motion
seeking modification of his sentences.
We hold that all of Fenderson's appellate issues are waived. Despite Fenderson's waiver, we address one
issue. We hold that the court of
appeals' ruling in State v. Halbert, 147 Wis.2d 123, 432 N.W.2d
633 (Ct. App. 1988), remains the controlling law despite the Wisconsin Supreme
Court's purported overruling of Halbert by an evenly divided
court in State v. Spear, 176 Wis.2d 1101, 501 N.W.2d 429 (1993)
(3-3 decision). Halbert
holds that a sentencing court's failure to sentence within the sentencing
guidelines is not a matter for court of appeals jurisdiction. Halbert, 147 Wis.2d at 132,
432 N.W.2d at 637.
Pursuant to a plea
agreement, Fenderson was convicted upon his pleas of no contest to three armed
robbery charges. On March 28, 1990, the
trial court sentenced Fenderson to two concurrent fifteen-year terms of
imprisonment on two of the convictions and a consecutive, but stayed,
twenty-year sentence on the remaining conviction. Other offenses were read in.
Over the next three
years and four months, Fenderson filed five consecutive motions to modify his
sentences. These motions were filed on
October 15, 1991; April 14, 1992; August 31, 1992; October 5, 1992; and July 1,
1993. Three of these motions were denied,
including the latest one of July 1, 1993, which is before us on this
appeal. Fenderson did not pursue the
other two motions.
Fenderson's first four
motions variously claimed that: (1) new
factors warranted a reduction in the sentences, (2) the sentences exceeded the
sentencing guidelines, (3) the sentencing court had not explained its reasons
for sentencing outside the guidelines and (4) the sentencing court had
otherwise not sufficiently explained the sentences. His latest motion contended that: (1) Fenderson was sentenced on the basis of inaccurate
information, (2) the sentences were tainted because of a later determination
that the original sentencing judge, the Honorable Jon B. Skow, was suffering
from a disability, (3) Fenderson was denied access to the presentence report,
(4) Fenderson was denied effective assistance of counsel and (5) the sentences
exceeded the sentencing guidelines. The
trial court rejected Fenderson's arguments and confirmed the original
sentences. Fenderson appeals.
The State contends that
all of Fenderson's appellate issues are waived because: (1) if the latest motion is construed as a
motion to modify a sentence, it was not timely and (2) if any of the prior
motions are construed as a § 974.06, Stats.,
motion, the latest motion is barred by the ruling in State v.
Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994), holding that a
defendant is required to consolidate all grounds for relief in the original
motion. See id. at
185, 517 N.W.2d at 163-64.
Pursuant to § 973.19(1),
Stats., a defendant who has not
filed a notice of intent to pursue postconviction relief and ordered
transcripts pursuant to § 809.30(2), Stats.,
may seek a sentence modification.
However, such action must be brought within ninety days from the date
the sentence is ordered. The record
does not reveal that Fenderson filed a notice of intent to pursue
postconviction relief or sought any transcripts pursuant to § 809.30(2) prior
to his first motion to modify his sentences.
In fact, Fenderson did not file his first motion until nearly eighteen
months after the sentencing.
It is thus apparent that
the only vehicle available to Fenderson to pursue his sentencing grievances was
§ 974.06, Stats. Of necessity then, all of Fenderson's
postconviction motions must be construed as applications for § 974.06
relief. However, that statute requires
that the prisoner must combine all grounds for relief in the original,
supplemental or amended motion. Unless
the prisoner shows sufficient reason why the grounds for relief in a successive
§ 974.06 proceeding were not asserted or adequately raised in the original
proceeding, the law will accord no relief.
Escalona-Naranjo, 185 Wis.2d at 184-85, 517 N.W.2d at
163-64.
Here, Fenderson has
failed to demonstrate why the grounds asserted in his latest motion were not
raised in the prior proceedings. We
thus hold that all of his appellate issues are waived.
Waiver, however, is a
rule of judicial administration. Waukesha
County v. Pewaukee Marina, Inc., 187 Wis.2d 18, 22, 522 N.W.2d 536, 538
(Ct. App. 1994). We may choose to
address a waived issue where the parties have fully briefed the issue and there
are no disputed issues of fact. See
Wirth v. Ehly, 93 Wis.2d 433, 444, 287 N.W.2d 140, 146
(1980). We properly overlook waiver as
to issues which are likely to recur. Pewaukee
Marina, 187 Wis.2d at 22, 522 N.W.2d at 538.
One of Fenderson's
appellate arguments is that the sentencing court's alleged failure to
sufficiently explain its deviation from the sentencing guidelines constitutes
reversible error. This argument pits
the court of appeals' decision in Halbert squarely against the
supreme court's purported overruling of Halbert in Spear. We have seen this issue in prior cases, and
it will recur in future cases unless it is resolved. Moreover, the parties have briefed the question. We choose to address it.
In Halbert,
the court of appeals rejected an appellate challenge to a sentence which did
not fall within the sentencing guidelines set out in § 973.011, Stats. The court observed that § 973.012, Stats., expressly states that “[t]here
shall be no right to appeal on the basis of the trial court's decision to
render a sentence that does not fall within the sentencing guidelines.” Halbert, 147 Wis.2d at 132,
432 N.W.2d at 637. The court stated,
“Simply put, a trial court's compliance or non-compliance with sec. 973.012, Stats., is not an appellate issue here,
because the Court of Appeals has no jurisdiction.” Halbert, 147 Wis.2d at 132, 432 N.W.2d at 637.
However, in Spear,
three justices in the lead opinion purported to overrule Halbert. Spear, 176 Wis.2d at 1123, 501
N.W.2d at 436. However, the concurring
opinion of the other three justices,[1]
while agreeing with the lead opinion on all other issues, specifically rejected
the lead opinion's overruling of Halbert. Spear, 176 Wis.2d at 1132, 501
Wis.2d at 441 (Day, J., concurring, joined by Ceci and Steinmetz, JJ.). A general principle of appellate practice is
that a majority must have agreed on a particular point for it to be considered
the opinion of the court. See State
v. Dowe, 120 Wis.2d 192, 194, 352 N.W.2d 660, 662 (1984) (per
curiam). Thus, Halbert
has not been overruled.
Pursuant to Halbert,
we have no jurisdiction to address Fenderson's appellate claim that the
sentencing court failed to adequately explain its deviation from the sentencing
guidelines.
By the Court.—Order
affirmed.
Recommended for
publication in the official reports.