COURT OF APPEALS DECISION DATED AND RELEASED October 31, 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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2075
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KEITH S. BETTS,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County: MAXINE A. WHITE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER
CURIAM. Keith S. Betts appeals from an order denying his
§ 974.06, Stats., motion for
a new trial premised on the issues of: (1) whether he received ineffective
assistance of counsel; (2) whether the trial court violated his due process
rights by allegedly erroneously exercising its discretion by basing his
sentence on allegedly incorrect information in his presentence investigation
report; and (3) whether the trial court erred by failing to explain why it
allegedly deviated from the sentencing guidelines in imposing Betts's
sentence. We conclude that our review
of these issues is barred by § 974.06(4), Stats.,[1]
and accordingly, we affirm the trial court's order.
In 1989, a jury
convicted Betts of armed robbery and he received a sentence of twenty years in
prison. He directly appealed, pro se,
from that judgment of conviction, arguing that he received ineffective
assistance of counsel, that he did not have a meaningful opportunity to examine
his presentence investigation report, and that the trial court improperly
considered “uncounseled juvenile adjudications” in sentencing him. We rejected Betts's arguments and summarily
affirmed the judgment of conviction. See
State v. Keith Betts, No. 89-1603-CR (Wis. Ct. App. July 10,
1990) (unpublished order), review denied, 461 N.W.2d 445 (1990).
On February 17, 1994,
Betts filed a § 974.06, Stats.,
motion for a new trial, arguing that: (1) he received ineffective assistance of
counsel; and (2) in the alternative, he should be resentenced for alleged
errors made by the trial court at his sentencing. The trial court denied the motion without an evidentiary
hearing. Betts now appeals from that
order.
A § 974.06 motion
cannot be used as a substitute for direct appeal and is limited to
constitutional and jurisdictional questions.
See State v. Nicholson, 148 Wis.2d 353, 360, 435
N.W.2d 298, 301 (Ct. App. 1988).
Further, under § 974.06(4), a convicted defendant who has pursued a
direct appeal cannot obtain collateral review of a constitutional or
jurisdictional claim that could have been raised as part of the direct
appeal. See State v.
Escalona-Naranjo, 185 Wis.2d 169, 186, 517 N.W.2d 157, 164 (1994);
§ 974.06(4), Stats. The only exception is where the defendant demonstrates
a “sufficient” reason for failing to raise it or for not adequately raising it
on direct appeal. Escalona-Naranjo,
185 Wis.2d at 186, 517 N.W.2d at 164; § 974.06(4), Stats.
Betts essentially now
argues that the “sufficient reason” to excuse the operation of § 974.06(4)
is that he received ineffective assistance of appellate counsel which he claims
forced him to proceed pro se on his direct appeal. We rejected this argument on his direct
appeal. Betts, No.
89-1603-CR, unpublished slip. op at 2-3.
Betts declined to have a no merit report filed by his appellate council
and elected to proceed in his direct appeal pro se. Thus, his current argument for both
inadequately raising and failing to raise the arguments in his direct appeal
does not provide a “sufficient reason” to excuse the operation of
§ 974.06(4).
Accordingly, the issues
raised in this appeal, i.e., the ineffective assistance of counsel argument,
and the due process sentencing arguments, have essentially either been raised
before on Betts's direct appeal and rejected, or in the case of Betts's
argument that his sentence was outside the sentencing guidelines, he failed to
raise it on his direct appeal. In
either case, they are barred by the operation of § 974.06(4). We will not review them. The order of the trial court is affirmed.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1]
Section 974.06(4), Stats.,
provides:
(4) All grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended motion.