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. 94-3183
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DONALD ZYWICKI, JR.,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Wood County:
EDWARD F. ZAPPEN, JR., Judge. Affirmed.
Before Gartzke, P.J.,
Dykman and Vergeront, JJ.
PER CURIAM. Donald
Zywicki, Jr., appeals from an order denying postconviction relief. The issue is whether Zywicki was denied due
process of law because his arraignment did not comply with § 971.05, Stats.
We conclude no errors occurred in the arraignment. We affirm.
Zywicki initially
challenged the arraignment in a postconviction motion under § 974.06, Stats.
Arraignment is governed by § 971.05, Stats. Section 971.05(3), Stats. provides:
The district attorney shall deliver to the
defendant a copy of the information in felony cases and in all cases shall read
the information or complaint to the defendant unless the defendant waives such
reading. Thereupon the court shall ask
for the defendant's plea.
Zywicki contends that he
was denied due process of law because the prosecutor failed to personally hand
him the information and then read it to him, as required by § 971.05(3), Stats.
However, the transcript of the arraignment belies Zywicki's factual
contentions. Zywicki's trial counsel
advised the trial court that "[his] client has also received a copy [of
the information]." Counsel assured
the court that he "reviewed the complaint [with Zywicki] and would waive
its reading of the information."
The trial court then engaged in a colloquy with Zywicki about the
charges, his constitutional rights and the applicable penalty provisions.
Zywicki erroneously
believes that waiver of the requirements of § 971.05(3), Stats., can only be accomplished by the
defendant personally, rather than by counsel.
Zywicki is wrong.[1] Moreover, Zywicki does not explain why he
failed to advise the trial court at the arraignment that he wanted the
information read to him, rather than listening to his counsel waive the reading
and then personally confirming to the trial court that he had no questions
about the proceedings. Even if error
occurred, and it did not, he has waived the right to raise them on appeal. Bies v. State, 53 Wis.2d 322,
325, 193 N.W.2d 46, 48 (1972) (citing Bridges v. State, 247 Wis.
350, 375, 19 N.W.2d 862, 862 (1945)).[2]
Further, even if
Zywicki's contentions were correct, he must demonstrate how the claimed
deficiencies resulted in prejudice.[3] Bies, 53 Wis.2d at 325, 193
N.W.2d at 48. He fails to allege how
handing him the information personally and reading it to him (after his counsel
had reviewed it with him) would have mattered, since he entered a not guilty
plea.[4]
Moreover, Zywicki failed
to provide a sufficient reason for not raising the arraignment issue in his
original postconviction motion, as required by State v. Escalona-Naranjo,
185 Wis.2d 168, 185-86, 517 N.W.2d 157, 164 (1994). In any event, the arraignment issue lacks a jurisdictional or
constitutional basis, and therefore is not cognizable under § 974.06, Stats.
State v. Nicholson, 148 Wis.2d 353, 360, 435 N.W.2d 298,
301 (Ct. App. 1988) (a postconviction motion under § 974.06 cannot be used
as a substitute for an appeal, or to reach procedural errors which do not reach
constitutional or jurisdictional statute).
That he proceeds pro se does not avoid the applicability of Escalona
or Nicholson.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Zywicki's reliance on the La Fond dissent is misplaced. La Fond v. State, 37 Wis.2d 137, 145-46, 154 N.W.2d 304, 308 (1967) (Heffernan, J., dissenting). Zywicki confuses his rights under § 971.05(3), Stats., with those basic decisions which must be made by the defendant personally, rather than by defendant's counsel. E.g., Wainwright v. Sykes, 433 U.S. 72, 93 n.1 (Burger, J., concurring); Commentary to the Aba Standards For Criminal Justice § 4-5.2 (1980).
[2] Zywicki erroneously contends that the waiver rule of Bridges and Bies is inapplicable because these cases predate the effective date of § 971.05(3), Stats. Section 971.05(3) mandates certain procedures. It does not preclude waiver of those procedures.
[3] Zywicki does not allege prejudice. Instead he claims that these alleged failures compromise the integrity of the system.
[4] Zywicki was found guilty by a jury. Zywicki also claims that these errors amount to ineffective assistance of trial counsel. Because he has not even alleged prejudice, he is not entitled to a Machner hearing. See State v. Carter, 131 Wis.2d 69, 78, 389 N.W.2d 1, 4 (1986) (the court will summarily deny a motion alleging only conclusory allegations); State v. Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905, 908-09 (Ct. App. 1979).