COURT OF
APPEALS DECISION DATED AND
RELEASED February
8, 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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-1071
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
CHARLES
B. DIETZEN,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Waupaca County: JOHN P.
HOFFMAN, Judge. Affirmed.
Before
Eich, C.J., Gartzke, P.J., and Dykman, J.
DYKMAN,
J. Charles B. Dietzen appeals from a
trial court order denying his petition for writ of error coram nobis. Dietzen makes the following arguments on
appeal: (1) the trial court erroneously exercised its
discretion in denying the petition; (2) the trial court erroneously
exercised its discretion when it failed to hold an evidentiary hearing on the coram
nobis petition; and (3) because the trial court judge was biased, we
should exercise our discretionary right to reverse under § 752.35, Stats.
We reject Dietzen's claims and, therefore, affirm.
BACKGROUND
In
April 1990, Dietzen was convicted of one count of theft, contrary to
§ 943.20(1)(e), Stats.,
after entering a no contest plea. He
later appealed, raising numerous issues including whether several misdemeanor
theft charges could be aggregated into a single felony charge and whether the
prosecutor acted vindictively when it issued a third criminal complaint. We affirmed Dietzen's conviction in August
1991. See State v. Dietzen,
164 Wis.2d 205, 474 N.W.2d 753 (Ct. App. 1991).
In
August 1994, Dietzen filed a petition for writ of error coram nobis. He
argued that the judgment of conviction should be vacated because the prosecutor
acted vindictively and deceived Dietzen and the trial court. He asserted that the prosecutor improperly
aggregated three misdemeanor charges into a felony charge. He also raised numerous constitutional
issues. After a telephone conference,
the court denied Dietzen's petition, concluding that he failed to allege a
factual error in the petition or supporting affidavit sufficient to warrant the
writ. Dietzen appeals.
CORAM NOBIS
The
writ of error coram nobis has a limited scope. Jessen v. State, 95 Wis.2d 207, 213, 290 N.W.2d
685, 688 (1980). Whether the writ
should be granted rests within the sound discretion of the trial court. Id. The writ is intended to give the court an opportunity to correct
its own record of an error of fact. Id. In order to constitute grounds for the
issuance of the writ, a defendant must show the existence of an error of fact
which was unknown at the time of trial and that, but for the error, the court
would have never entered the judgment. Id. The writ is intended to secure relief from
the court for factual errors and to correct the record when no other remedy
exists. State v. Kanieski,
30 Wis.2d 573, 576, 141 N.W.2d 196, 198 (1966).[1] A writ of habeas corpus is the proper
remedy to attack a conviction obtained in violation of a defendant's
constitutional rights. Jessen,
95 Wis.2d at 214, 290 N.W.2d at 688.
Dietzen
alleges several errors including vindictive prosecution and prosecutorial
misconduct. He first asserts that the
prosecutor filed an amended complaint aggregating five misdemeanors into three
felonies. He argues that the prosecutor
did not have the authority to aggregate the charges in this manner and claims
that this complaint mysteriously disappeared from the record. He then asserts that the prosecutor again
amended the complaint, charging him with one felony and two misdemeanors. He later pleaded no contest because he
feared further vindictiveness.
But
these very same issues were decided adversely to Dietzen by this court on
direct appeal. See State
v. Dietzen, 164 Wis.2d 205, 474 N.W.2d 753 (Ct. App. 1991). With respect to the vindictiveness claim, we
concluded that because Dietzen never raised this argument before the trial
court, he waived it. Id.
at 212, 474 N.W.2d at 755. We also
added that there was nothing in the record indicating that such a complaint was
ever filed and that the only complaint of record was the one charging Dietzen
with a single felony count. Id.,
474 N.W.2d at 755-56. We stated that
Dietzen was responsible for seeing that the document, if it existed, was made
part of the record. Id.,
474 N.W.2d at 756.
Moreover,
these errors, and an ineffective assistance of trial and appellate counsel
claim, raise constitutional issues which are the subject of habeas corpus
and not coram nobis. Thus, the
trial court properly dismissed the petition because Dietzen failed to allege
any mistakes of fact which, if known to the court, would have prevented the
entry of the judgment.
Dietzen
next argues that he should have been afforded a hearing before the trial court
dismissed his coram nobis petition.
We disagree. A court has no duty
to issue a writ of error coram nobis and to try issues unless it is
satisfied that the petition, on its face, shows sufficient grounds for the
issuance of the writ and the necessity for a hearing. Houston v. State, 7 Wis.2d 348, 353, 96 N.W.2d 343,
346 (1959).
The
trial court asked Dietzen what information, other than what was alleged in his
petition, he would present at an evidentiary hearing. He explained that he would call witnesses to testify about matters
relating to his constitutional claims, his pretrial confinement, his being
charged without statutory authority and a factual basis, and his no contest
plea. Dietzen's petition raises legal,
not factual, issues and in the absence of any grounds alleged in the petition
upon which the court could have granted Dietzen's petition, the court was under
no duty to hold a hearing. Accordingly,
the court did not err when it refused to hold an evidentiary hearing before denying
Dietzen's petition.
Lastly,
Dietzen urges us to use our discretionary reversal power under § 752.35, Stats.[2] Dietzen argues that the trial court judge
had a personal interest in the outcome and, therefore, lacked the requisite
appearance of fairness when he denied Dietzen's coram nobis
petition. Dietzen named the judge as a
defendant in a separate civil action.
Section 757.19(2)(b), Stats.,
provides that a judge shall disqualify himself or herself from any action or
proceeding when the judge is a party except that the judge need not disqualify
himself or herself if the judge determines that any pleading purporting to make
him or her a party is false, sham or frivolous.
Although
Dietzen named the trial court judge as a defendant in a separate civil action,
Dietzen did not seek the judge's recusal.
Since the alleged basis for the recusal was known to Dietzen before the
judge denied his petition, he waived any right he might have had to request the
trial judge's disqualification. State
v. Marhal, 172 Wis.2d 491, 504-05, 493 N.W.2d 758, 764-65 (Ct. App.
1992). Consequently, we see no reason
to exercise our discretionary reversal power in this case.
By
the Court.—Order affirmed.
Not
recommended for publication in the official reports.
[1] The writ of error coram nobis differs
from an ordinary writ of error in that the latter:
is brought for a supposed error in law apparent on the
record, and takes the case to a higher tribunal, where the question is to be
decided and the judgment, sentence, or decree to be affirmed or reversed, while
the [former] is brought for an alleged error in fact not appearing on the
record and lies to the same court in order that it may correct the error which
it is presumed would not have been committed had the fact in the first instance
been brought to its notice.
State v. Wagner, 232 Wis. 138, 141, 286 N.W. 544, 545 (1939) (quoted
source omitted).
[2] Section 752.35, Stats., provides:
In an appeal to the court of
appeals, if it appears from the record that the real controversy has not been
fully tried, or that it is probable that justice has for any reason miscarried,
the court may reverse the judgment or order appealed from, regardless of
whether the proper motion or objection appears in the record and may direct the
entry of the proper judgment or remit the case to the trial court for entry of
the proper judgment or for a new trial, and direct the making of such
amendments in the pleadings and the adoption of such procedure in that court,
not inconsistent with statutes or rules, as are necessary to accomplish the
ends of justice.