District IV
August 28, 2014
To:
Hon. Kenneth W. Forbeck
Circuit Court Judge
51 S. Main Street
Janesville, WI 53545
Eldred Mielke
Clerk of Circuit Court
Rock Co. Courthouse
51 S. Main Street
Janesville, WI 53545
David J. O'Leary
District Attorney
51 S. Main St.
Janesville, WI 53545-3951
Maura F.J. Whelan
Asst. Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Johnathon W. Pearson 396571
Columbia Corr. Inst.
P.O. Box 900
Portage, WI 53901-0900
You are hereby notified that the Court has entered the following opinion and order:
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2013AP1208-CR |
State of Wisconsin v. Johnathon W. Pearson (L.C. # 1999CF3296) State of Wisconsin v. Johnathon W. Pearson (L.C. # 2000CF697) |
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Before Blanchard, P.J., Lundsten and Kloppenburg, JJ.
Johnathon Pearson, pro se, appeals the circuit court’s order denying his Wis. Stat. § 974.06 motion without a hearing.[1] Based upon our review of the briefs and record, we conclude at conference that this case is appropriate for summary disposition. See Wis. Stat. Rule 809.21. We summarily affirm.
In 2000, Pearson was convicted on his guilty pleas to two counts of first-degree sexual assault of a child, three counts of child enticement, and three counts of sexual exploitation of a child. Pearson sought postconviction relief, arguing that the circuit court erroneously exercised its sentencing discretion by: (1) failing to give sufficient weight to expert testimony as to the likelihood that Pearson could be adequately supervised in the community; (2) failing to give sufficient weight to Pearson’s need for prompt sex offender treatment; and (3) failing to impose the minimum term of imprisonment necessary. Pearson also argued that his sentence was excessive and unduly harsh. The circuit court denied the motion, explaining that the court had considered the sentencing guidelines and the testimony at the sentencing hearing in determining the minimum amount of confinement necessary. The court also explained that it considered that it had imposed indeterminate sentences, and that the Department of Corrections (DOC) would ultimately determine the total length of confinement. We affirmed on appeal.
Pearson then filed a pro se motion to modify sentence. Pearson argued again that the circuit court erroneously exercised its sentencing discretion. Pearson also argued that, in denying his prior postconviction motion, the circuit court made a legal error by relying on DOC’s purported ability to release Pearson to parole. Pearson argued that his postconviction counsel was ineffective by failing to raise the parole issue in a motion for reconsideration, and that his appellate counsel was ineffective by failing to raise that issue on appeal. The circuit court denied the motion without a hearing, determining that Pearson’s claims were procedurally barred and that they lacked merit.
Pearson contends that the circuit court erroneously
exercised its discretion by denying his motion without explaining why Pearson
was not entitled to a hearing on the motion.
The circuit court explained, in writing, that it
denied Pearson’s motion without a hearing because it determined that the issues
Pearson raised could have been raised in Pearson’s previous postconviction
proceedings. See State v. Lo, 2003 WI 107, ¶2, 264
Wis. 2d 1, 665 N.W.2d 756 (“[A]ny claim that could have been raised on direct
appeal or in a previous Wis. Stat. § 974.06 ... postconviction motion is barred
from being raised in a subsequent § 974.06 postconviction motion, absent a
sufficient reason.” (footnote omitted)); State v. Bentley, 201 Wis. 2d 303, 309-11, 548 N.W.2d
50 (1996) (court may, in its discretion, deny a postconviction motion without a
hearing if the record conclusively demonstrates that the defendant is not
entitled to relief). The circuit court
also explained that it had reviewed the motion and determined that Pearson’s
claims lacked merit. Thus, we reject
Pearson’s argument that the circuit court failed to explain why it denied
Pearson’s motion without a hearing.
Next, Pearson contends that his motion alleged sufficient
facts that, if true, entitle him to relief, and thus the circuit court was
required to hold a motion hearing. See Allen, 274 Wis. 2d 568, ¶9. Specifically, Pearson argues that the circuit
court erroneously exercised its sentencing discretion by considering both
Pearson’s status as a child sexual abuse victim and Pearson’s homosexuality as aggravating
factors. The sentencing hearing
transcript, however, conclusively refutes those claims. Because the record conclusively demonstrates
that Pearson is not entitled to relief on those claims, Pearson’s motion was
properly denied without a hearing. See Bentley, 201 Wis. 2d at
309-11.
Pearson also argues that the sentencing court placed
too much weight on protection of the community and did not give sufficient
weight to expert testimony that Pearson could be safely treated in the
community. However, in Pearson’s direct
appeal we addressed this issue, and we will not address it again here. See
State
v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991) (an
issue litigated in postconviction proceedings “may not be relitigated in a
subsequent postconviction proceeding no matter how artfully the defendant may
rephrase the issue”).
Finally, Pearson claims that the circuit court made a legal error in denying his prior postconviction motion. He asserts that the court erroneously stated that DOC would be able to determine Pearson’s eligibility for parole. Pearson asserts that, contrary to the court’s statement, Pearson will not be eligible for parole in his lifetime because the length of his sentence significantly delays his eligibility for sex offender treatment. However, as the State points out, even if Pearson’s underlying factual assertion is true—that, due to DOC policies, Pearson will not be eligible for parole in his lifetime—that does not establish that the circuit court’s statement was erroneous. That is, the court’s statement that DOC will determine Pearson’s confinement time is accurate even if, according to DOC policies, Pearson will not be eligible for parole in his lifetime. Because this argument fails on the merits, we reject Pearson’s claims of ineffective assistance of counsel for failing to raise it.
Therefore,
IT IS ORDERED that the order is summarily affirmed pursuant to Wis. Stat. Rule 809.21.
Diane M. Fremgen
Clerk of Court of Appeals