District II
April 23, 2014
To:
Hon. S. Michael Wilk
Circuit Court Judge
Kenosha County Courthouse
912 56th St.
Kenosha, WI 53140
Rebecca Matoska-Mentink
Clerk of Circuit Court
Kenosha County Courthouse
912 56th St.
Kenosha, WI 53140
Sarah K. Larson
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Robert D. Zapf
District Attorney
Molinaro Bldg
912 56th St.
Kenosha, WI 53140-3747
Andrew C. Robinson, #447768
Waupun Corr. Inst.
P.O. Box 351
Waupun, WI 53963-0351
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Andrew C. Robinson (L.C. #2004CF1135) |
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Before Brown, C.J., Neubauer, P.J., and Gundrum, J.
Andrew C. Robinson appeals an order denying his Wis. Stat. § 974.06 (2011-12)[1] motion seeking postconviction relief in the form of a new trial. Because we agree with the circuit court that his claims are procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), we affirm.
In 2005, a jury found Robinson guilty of attempted first-degree homicide while using a dangerous weapon, first-degree sexual assault and mayhem, both as an act of domestic abuse, and child abuse. The trial court imposed a bifurcated sentence totaling eighty years. Robinson filed a pro se postconviction motion under Wis. Stat. Rule 809.30. The motion was denied after two hearings in February 2007. Robinson appealed. In June 2008, this court affirmed the judgment of conviction and the order denying postconviction relief. Robinson’s subsequent petition for a federal writ of habeas corpus was denied in September 2012.
Included in the return the respondent prison warden filed in federal court were supplemental police reports containing statements of the two victims/witnesses that contradicted their trial testimony. Robinson contended he previously had been unaware of those reports. Alleging newly discovered evidence, Robinson filed the postconviction motion underlying this appeal. The circuit court denied the motion, citing the Escalona-Naranjo rule barring successive unjustified postconviction litigation. Robinson appeals.
Wisconsin
Stat. § 974.06 “does not … create an unlimited right to file successive
motions for relief.” State
ex rel. Dismuke v. Kolb, 149 Wis. 2d 270, 273, 441 N.W.2d 253 (Ct. App.
1989). Accordingly, where a defendant’s
claims for relief have been finally adjudicated, waived, or not raised in a
prior postconviction motion, they may not form the basis for a later
§ 974.06 motion unless the circuit court ascertains that a sufficient reason
exists for the failure to raise the issue earlier. Escalona-Naranjo, 185 Wis. 2d at 181-82. Whether the claim is procedurally barred is a
question of law this court reviews de novo. See State
v. Allen, 2010 WI 89, ¶15, 328 Wis. 2d 1, 786 N.W.2d 124.
Robinson contends that if he had known of the supplemental police reports at the time of trial, he would have been better positioned to impeach the credibility of the two key witnesses against him. Conclusory allegations in a postconviction motion are insufficient to warrant an evidentiary hearing on newly discovered evidence claims. See id., ¶91 (a defendant must allege specific facts, which if true, would constitute “sufficient reason” for failing to raise claims earlier and if he or she fails to do so, the claim may be summarily denied).
But even accepting for the sake of argument that he was unaware of these reports until after his conviction and that they were material and not cumulative, his claim still fails. Robinson does not say why he could not have obtained these discoverable reports drafted before he even was charged. To prevail on a claim based on newly discovered evidence, a defendant must prove by clear and convincing evidence that he or she was not negligent in seeking it. See State v. Love, 2005 WI 116, ¶43, 284 Wis. 2d 111, 700 N.W.2d 62.
An “a-ha” moment does not suffice. “‘Newly discovered evidence’ does not include a new appreciation of the importance of evidence previously known but not used.” State v. Bembenek, 140 Wis. 2d 248, 256, 409 N.W.2d 432 (Ct. App. 1987).
Upon the foregoing reasons,
IT IS ORDERED that the order of the circuit court is summarily affirmed, pursuant to Wis. Stat. Rule 809.21.
Diane M. Fremgen
Clerk of Court of Appeals