COURT OF APPEALS DECISION DATED AND RELEASED August 22, 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. |
Nos. 95-0121
95-0356
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
No. 95-0121
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MICHAEL J. CAULEY,
Defendant-Appellant.
______________________________________________________________________________
No. 95-0356
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
LINDA R. CAULEY,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Price County:
DOUGLAS T. FOX, Judge. Affirmed.
MYSE, J. Michael J. Cauley and
Linda R. Cauley appeal an order denying their § 974.06, Stats., motion for postconviction relief. The Cauleys contend that the trial court
erred by failing to hold an evidentiary hearing on their claims. They claim they were denied effective
assistance of counsel and that the doctrine of double jeopardy precludes state
prosecution for their offenses because the bankruptcy court had made a
determination that they had not engaged in fraudulent practices. Because the claim of ineffective assistance
of counsel was waived and the remaining claim is without merit, this court
affirms the trial court's order denying relief.
Michael and Linda Cauley
are husband and wife who operated a business involving the sale of goods to
others. They were each charged with a
series of criminal complaints alleging theft by fraud. Pursuant to a plea bargain, pleas of no
contest were made to some of the offenses while the State dismissed the balance
of the allegations but had them read in for restitution purposes. The court withheld sentence and placed both
defendants on probation for three years.
As conditions of probation, the Cauleys were to each serve thirty days
in jail and pay court costs and restitution.
The Cauleys each subsequently filed a motion to modify their
sentence. The motion was denied, the
denial was appealed and ultimately a no merit determination was made dismissing
the appeal. After the supreme court
denied their petition for review, the Cauleys filed their § 974.06, Stats., motions.
Defendants cannot raise
an issue in a § 974.06, Stats.,
motion that could have been raised in an earlier motion or appeal unless they
give sufficient reason. State v.
Escalona-Naranjo, 185 Wis.2d 168, 170-73, 517 N.W.2d 157, 158-59 (1994). Because these matters were not brought to
the trial court at the time of the filing of the initial motion, without
adequate explanation as to this failure, Escalona holds that the
trial court is without the power to hear the § 974.06 motions in this case.
The Cauleys claim that
such a holding would give Escalona retroactive effect because
their original motion was made a year before Escalona was
decided. They claim they relied on Bergenthal
v. State, 72 Wis.2d 740, 242 N.W.2d 199 (1976) (court required to
consider constitutional issues raised in § 974.06 Stats., motion even if they could have been raised earlier),
which Escalona expressly overruled. Because we do not apply Escalona, we will address
the merits without deciding whether Escalano has retroactive
effect.
This court reviews a
trial court's denial of such a motion without an evidentiary hearing for an
abuse of discretion. See Rohl
v. State, 96 Wis.2d 621, 627-28, 292 N.W.2d 636, 640 (1980). If the defendant fails to allege sufficient
facts in a § 974.06, Stats.,
motion to raise a question of fact, or presents only conclusory allegations, or
if the record conclusively demonstrates that the defendant is not entitled to
relief, the trial court may in the exercise of its legal discretion deny the
motion without a hearing. State
v. Carter, 131 Wis.2d 69, 78, 389 N.W.2d 1, 4 (1986).
The claim of double
jeopardy is conclusively without merit on its face because a federal bankruptcy
court's determination does not preclude a state court prosecution under the
doctrine of dual sovereignty. United
States v. Wheeler, 435 U.S. 313, 317 (1978). Furthermore, because the claim of inadequate counsel was not
briefed in this appeal, we cannot determine the nature of the claim or whether
an evidentiary hearing was required before the trial court. Claims not briefed are deemed waived and
will not be addressed. State v.
S.H., 159 Wis.2d 730, 738, 465 N.W.2d 238, 241 (Ct. App. 1990). This court therefore concludes that the
trial court did not err by dismissing the motions filed by each of these
defendants without an evidentiary hearing.
By the Court.—Order
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.