COURT OF APPEALS DECISION DATED AND RELEASED January 11, 1996 |
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. 94-3094
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
BOBBY JOE SMITH,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Rock County:
J. RICHARD LONG, Judge. Affirmed.
Before Gartzke, P.J.,
Sundby and Vergeront, JJ.
PER
CURIAM. Bobby Joe Smith appeals from an order denying his
motion for postconviction relief brought pursuant to § 974.06, Stats.
The issues are: (1) whether
the trial court had subject matter jurisdiction over Smith when it convicted
him of armed robbery; (2) whether the trial court properly refused to
consider Smith's claim that he was denied effective assistance of trial
counsel; (3) whether the trial court properly refused to consider Smith's
claim that he was denied effective assistance of appellate counsel; (4) whether
Smith is entitled to a "retroactive hearing" at which the charge of
armed robbery should be reduced to the lesser-included offense of theft;
(5) whether Smith's sentence should be reduced or modified; and (6)
whether the trial court properly refused to hold a hearing on the
postconviction motion. We affirm.
On October 10, 1991,
Smith pled guilty to armed robbery as a repeater. The trial court sentenced him
to twenty years' imprisonment. By
appellate counsel, Smith filed a motion for postconviction relief. The trial court denied the motion on June 1,
1993. This court affirmed the judgment
of conviction on March 22, 1994, and the supreme court denied Smith's petition
for review on July 19, 1994. Several
months after the supreme court's decision, Smith filed a pro se motion
for postconviction relief under § 974.06, Stats. The trial
court denied the motion without a hearing.
Smith first contends
that the trial court lacked subject matter jurisdiction over him when it
convicted him of armed robbery because he was not charged with an offense known
to law. Smith argues that the armed
robbery charge was not an offense known to law because he did not possess a
gun.
Wisconsin trial courts
"have original [subject matter] jurisdiction of all matters civil and
criminal not excepted in the constitution or not prohibited by law." Dumer v. State, 64 Wis.2d 590,
595, 219 N.W.2d 592, 596 (1974). Even
"[i]f the criminal complaint is defective, or if the defendant is
convicted under an invalid law," which was not the case here, the circuit
court still retains subject matter jurisdiction because it "has the power
to inquire into the sufficiency of the charges before the court." Mack v State, 93 Wis.2d 287,
295, 286 N.W.2d 563, 567 (1980). The
State correctly points out that the circuit court does not lack subject matter
jurisdiction simply because a defendant disputes the facts alleged in the
charging document. The trial court had
subject matter jurisdiction over Smith.
Smith next argues that
the trial court erred when it refused to consider his claim that his trial
counsel failed to provide him with effective assistance. In Smith's previous appeal, this court
concluded that there was no ineffective assistance by trial counsel. Because this issue had already been decided,
the trial court properly refused to consider it.
Smith next contends that
he received ineffective assistance of appellate counsel. A claim for ineffective assistance of
appellate counsel should be brought by petition for writ of habeas corpus
in the court which heard the appeal. State
v. Knight, 168 Wis.2d 509, 520, 484 N.W.2d 540, 544 (1992). A criminal defendant who asserts that his or
her appellate counsel provided ineffective assistance may not raise that claim
by § 974.06, Stats. State v. Flores, 170 Wis.2d
272, 278, 488 N.W.2d 116, 119 (Ct. App. 1992).
The trial court properly refused to consider this issue because it was
not originally raised in this court by petition for writ of habeas corpus.
Smith next argues that
he is entitled to a "retroactive hearing" at which the charge of
armed robbery should be reduced to the lesser-included offense of theft. Smith contends that he should have been charged
with theft, not armed robbery, because he did not have a gun when he committed
the crime. A person is guilty of armed
robbery if he or she commits robbery "by use or threat of use of a
dangerous weapon ...." Section
943.32(2), Stats. (emphasis
added). Whether a victim is
"threatened" with a weapon depends on whether the victim reasonably
believes that the defendant is armed. State
v. Witkowski, 143 Wis.2d 216, 221-22, 420 N.W.2d 420, 422-23 (Ct. App.
1988). The victim reasonably believed
Smith was armed because the victim observed Smith's hand tucked into his shirt
as if he was holding something. Smith
is not entitled to relief based on this claim.[1]
Smith next contends that
his sentence should be either reduced or modified because he was not armed when
he committed the robbery. The trial
court was aware that Smith claimed he was not armed when it sentenced him. This is not a new factor entitling Smith to
resentencing. See Rosado v.
State, 70 Wis.2d 280, 288, 234 N.W.2d 69, 73 (1975) (a new factor is
something which was "not known to the trial judge at the time of the
original sentencing, either because it was not then in existence or because,
even though it was then in existence, it was unknowingly overlooked by all of
the parties.").
Finally, Smith argues
that the trial court should have held a hearing on his postconviction
motion. The trial court is not required
to hold a hearing on a motion brought under § 974.06, Stats., if "the motion and the
files and records of the action conclusively show that the person is entitled
to no relief ...." Section
974.06(3). The trial court properly denied
Smith's motion without a hearing because, as explained in this decision, Smith
is not entitled to relief. Accordingly,
we affirm.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Smith's arguments are, at times, difficult to follow. Throughout his brief, he implicitly asserts that he did not knowingly enter his plea because he did not threaten use of force, an element of the crime to which he pled. Smith never moved to withdraw his plea before the trial court so we will not now consider this claim.