COURT OF APPEALS

DECISION

DATED AND FILED

 

January 13, 2015

 

Diane M. Fremgen

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.  If published, the official version will appear in the bound volume of the Official Reports. 

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.  See Wis. Stat. § 808.10 and Rule 809.62. 

 

 

 

 

Appeal No. 

2014AP845

Cir. Ct. No.  1999CF6351

STATE OF WISCONSIN 

IN COURT OF APPEALS

 

DISTRICT I

 

 

 

 

State of Wisconsin,

 

                        Plaintiff-Respondent,

 

            v.

 

Mark L. Guman,

 

                        Defendant-Appellant.

 

 

 

            APPEAL from an order of the circuit court for Milwaukee County:  Dennis P. moroney, Judge.  Affirmed. 

            Before Curley, P.J., Kessler, J., and Thomas Cane, Reserve Judge.

1        PER CURIAM.   Mark L. Guman, pro se, appeals an order of the circuit court, denying his Wis. Stat. § 974.06 (2011-12)[1] motion without a hearing.  The circuit court concluded that Guman’s motion was procedurally barred under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994).  We agree with the circuit court, so we affirm the order.

2        In 2000, Guman was convicted upon his guilty plea to two counts of second-degree sexual assault with the threat of force, two counts of second-degree sexual assault of a child, and one count of kidnapping.  He was sentenced to four consecutive, indeterminate, twenty-year terms of imprisonment for the sexual assaults.  A consecutive, indeterminate, twenty-five-year term of imprisonment was imposed for the kidnapping, but stayed in favor of twenty-five years’ probation.  Guman did not have a direct appeal.

3        In 2005, Guman filed a pro se motion under Wis. Stat. § 974.06.  The circuit court conducted a hearing on the motion but denied relief.  Guman appealed, and this court affirmed.  See State v. Guman, No. 2007AP1205, unpublished slip op. (WI App May 6, 2008).  In 2009, Guman filed a motion for sentence modification, which was denied.  In 2010, Guman petitioned this court for a writ of habeas corpus, which was also denied.

4        On March 25, 2014, Guman filed the Wis. Stat. § 974.06 motion underlying this appeal, alleging various claims of ineffective postconviction counsel.  Guman also claimed that he was incompetent during the original postconviction stage of his case.  The circuit court denied the motion as procedurally barred by Guman’s prior § 974.06 postconviction motion.  Guman appeals.

5        Wisconsin Stat. § 974.06(4) requires a prisoner to raise all grounds for postconviction relief in his or her original, supplemental, or amended motion or appeal.  See Escalona, 185 Wis. 2d at 185-86.  “[C]laims that could have been raised on direct appeal or in a previous § 974.06 motion are barred from being raised in a subsequent § 974.06 motion absent a showing of a sufficient reason[.]”  State v. Lo, 2003 WI 107, ¶44, 264 Wis. 2d 1, 665 N.W.2d 756.

6        The circuit court applied Escalona and Lo to deny Guman’s motion.  Guman asserts this was the wrong standard.  Instead, Guman says, the circuit court should have applied the rule from State v. Debra A.E., 188 Wis. 2d 111, 523 N.W.2d 727 (1994).  That case offered guidance on how counsel and the courts might deal with incompetent defendants during postconviction proceedings.  See id. at 131-36. 

7        Guman points to Debra A.E.’s declarations that “[d]efendants who are incompetent at the time they seek postconviction relief should, after regaining competency, be allowed to raise issues at a later proceeding that could not have been raised earlier because of incompetency” and that “Escalona will not bar an incompetent defendant from invoking [Wis. Stat. §] 974.06 after being restored to competency.”  See Debra A.E., 188 Wis. 2d at 135-36.  Guman asserts that he was incompetent following his conviction in 2000, so Debra A.E. allows him to proceed with a § 974.06 motion now.  Guman also contends that his postconviction incompetency provides a sufficient reason for not previously raising his ineffective-assistance claims against postconviction counsel.

8        Assuming without deciding that Guman really was incompetent following his conviction in 2000, he tells us in his reply brief that he was restored to competency by November 2001.  Accordingly, Debra A.E. does not give Guman a “sufficient reason” for the current motion because he was by his own admission competent when he made his first attempt at postconviction relief in 2005.[2]  That is, Guman does not explain how his postconviction incompetency prevented him from raising his current issues in his 2005 motion.  The circuit court therefore properly applied Lo and properly concluded that the current Wis. Stat. § 974.06 motion is procedurally barred by the prior § 974.06 motion.[3]

            By the Court.—Order affirmed.

            This opinion shall not be published.  See Wis. Stat. Rule 809.23(1)(b)5.  


 


[1]  All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.

[2]  In his postconviction motion, Guman argued that the procedural bar of State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), did not apply because the bar is only applicable “where a criminal defendant actually filed a [Wis. Stat.] § 974.02 [postconviction] motion or pursued a direct appeal.”  See State v. Lo, 2003 WI 107, ¶44 n.11, 264 Wis. 2d 1, 665 N.W.2d 756.

It is true that a defendant does not need a sufficient reason for filing an initial Wis. Stat. § 974.06 motion if there has not been a prior Wis. Stat. § 974.02 motion or a direct appeal.  See State v. Romero-Georgana, 2014 WI 83, ¶35, 849 N.W.2d 668.  “But if the defendant did file a motion under § 974.02 or a direct appeal or a previous motion under § 974.06, the defendant is barred from making a claim that could have been raised previously unless he shows a sufficient reason for not making the claim earlier.”  Romero-Georgana, 849 N.W.2d 668, ¶35 (emphasis added).  Guman, because of his prior § 974.06 motion, still requires a sufficient reason for the current motion.

[3]  Of course, we also note that any issues that Guman previously raised that have already been addressed cannot be relitigated.  See State v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991) (“A matter once litigated may not be relitigated in a subsequent postconviction proceeding no matter how artfully the defendant may rephrase the issue.”).