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COURT OF APPEALS
DECISION
DATED AND FILED
December 21, 2010
A.
John Voelker
Acting Clerk of Court of Appeals
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NOTICE
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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.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Jose Matamoros,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Milwaukee County: daniel
l. konkol, Judge. Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Jose Matamoros, pro se, appeals an order denying his
motion for postconviction relief filed under Wis.
Stat. § 974.06 (2007-08). Matamoros
argues that the postconviction court erred when it concluded that the claims
asserted in his § 974.06 motion were barred by State v. Escalona-Naranjo,
185 Wis. 2d
168, 517 N.W.2d 157 (1994). We agree
with the postconviction court and affirm.
I. Background.
¶2 A jury found Matamoros
guilty of one count of armed robbery, one count of false imprisonment while
using a dangerous weapon, and two counts of substantial battery while using a
dangerous weapon, all as party to a crime.
This court affirmed his conviction following a direct appeal. See
State
v. Matamoros, No. 07-1216-CR, unpublished slip op. (WI App May 13,
2008).
¶3 On December 24, 2008, Matamoros,
pro se, filed a “Motion to Quash DNA
Surcharges” based on his contention that the sentencing court had erroneously
exercised its discretion in imposing the surcharge. (Some uppercasing omitted.) His motion was based on “new factors” and Wis. Stat. § 974.06. The postconviction court denied the motion on
the ground that it was untimely.
¶4 On February 26, 2009, Matamoros,
pro se, filed a motion titled “Notice
of Motion and Motion for Reconsideration of Denial of Illicit Assessment of DNA
Surcharge/Tax and Motion to Challenge the Statutory Authority to Order DNA Surcharge/Tax
Absent Clear Standard for Such Assessment.”
(Some uppercasing omitted.) In
this motion, Matamoros
challenged the constitutionality of the surcharge. The postconviction court denied Matamoros’s motion for
reconsideration “for the same reasons set forth in the court’s previous
decision.”
¶5 On November 10, 2009, Matamoros,
pro se, filed a Wis. Stat. § 974.06 motion and
supporting affidavit. In his motion, Matamoros alleged that
both his trial counsel and his postconviction counsel rendered ineffective
assistance. The court denied Matamoros’s motion after
concluding that his ineffective assistance of counsel claims were barred
pursuant to Escalona. The court held that Matamoros could have raised his current
claims in the context of his § 974.06 motion challenging the DNA
surcharge. The court noted that the
ineffective assistance of postconviction counsel may be a sufficient reason for
failing to raise an issue so as to overcome the Escalona bar. See
State ex
rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 682, 556 N.W.2d 136 (Ct. App.
1996) (per curiam). It went on to
conclude, however, that Rothering does not contemplate the
filing of successive motions under § 974.06. As an additional basis for denying Matamoros’s motion, the court concluded that Matamoros’s allegations
of ineffective assistance were “conclusory, unsupported and insufficient to
warrant relief of any kind.” Matamoros appeals.
II. Analysis.
¶6 We agree with Matamoros’s
summation of the issue presented: “[D]id
the two motions challenging the DNA surcharge filed by Matamoros qualify as a bar to challenging
constitutional issues as provided by Escalona[?]” We conclude the answer to this question is “yes.”
We need finality in our
litigation. [Wisconsin Stat. §] 974.06(4) compels a prisoner to raise all
grounds regarding postconviction relief in his or her original, supplemental or
amended motion. Successive motions and
appeals, which all could have been brought at the same time, run counter to the
design and purpose of the legislation.
Escalona, 185 Wis. 2d at 185. Therefore, a prisoner who wishes to pursue a
second or subsequent postconviction motion under § 974.06 must demonstrate a
sufficient reason for failing in the original postconviction proceeding to
raise or adequately address the issues. See id.
at 184. Whether litigation is
procedurally barred presents a question of law that we review de novo. See State v. Tillman, 2005 WI App 71, ¶14,
281 Wis. 2d
157, 696 N.W.2d 574.
¶7 To avoid the Escalona bar, Matamoros claims that the postconviction
court erroneously construed his December 24, 2008 “Motion to Quash DNA
Surcharges” as a motion filed pursuant to
Wis. Stat. § 974.06. (Some
uppercasing omitted.) On this point, we adopt
the reasoning set forth in the State’s brief:
Matamoros’s contention
that [Wis. Stat.] § 974.06 is not
the proper vehicle for challenging imposition of a DNA surcharge is generally
correct. Where the claim is that the trial
court erroneously exercised its discretion in imposing the surcharge, § 974.06
cannot be used to challenge the surcharge because only jurisdictional and
constitutional grounds can be raised in a § 974.06 motion. See Smith v. State, 85 Wis. 2d 650, 661, 271
N.W.2d 20 (1978). Thus, Matamoros’s Motion to Quash DNA Surcharges
could not be brought under § 974.06–Matamoros’s reference to the statute in his
motion notwithstanding–because that motion was premised solely on the allegedly
improper exercise of sentencing discretion.
The [postconviction] court implicitly recognized this when it denied the
motion on the ground [that] it was untimely because it was neither filed within
ninety days of sentencing nor within the timelines established in Wis. Stat. [Rule] 809.30.
Unlike his initial motion,
however, Matamoros’s
second motion seeking to vacate the DNA surcharge was properly brought under [Wis. Stat.] § 974.06 because the motion
included a constitutional challenge to the surcharge. A constitutional challenge to the imposition
of a DNA surcharge, such as the equal protection challenge successfully mounted
in State
v. Trepanier, 204 Wis.
2d 505, 555 N.W.2d 394 (Ct. App. 1996) [(superseded by statute as stated in State
v. Jones, 2004 WI App 212, 277 Wis. 2d 234, 689 N.W.2d 917)], can be
raised via a § 974.06 motion, assuming the defendant shows a sufficient
reason why the constitutional issue was not raised on direct appeal. Despite the fact Matamoros labeled his second
motion challenging the DNA surcharge a “Motion for Reconsideration,” that
motion was undoubtedly a constitutional challenge to the surcharge, and §
974.06 was the only vehicle available for bringing the challenge.
Because Matamoros had already filed a [Wis. Stat.] § 974.06 motion
in February 2009, his current § 974.06 motion challenging the performance
of his trial and postconviction attorneys was a second or successive
motion. Thus, pursuant to Escalona,
185 Wis. 2d at 184, Matamoros had to allege a sufficient reason
why he did not raise his claims of ineffective assistance in his previous
§ 974.06 motion.
(Record citations
omitted.)
¶8 Although, as noted by the postconviction court, ineffective
assistance of postconviction counsel may sometimes be a sufficient reason for
failing to previously raise an issue, see
Rothering,
205 Wis. 2d at 682, we agree with the court’s assessment that Rothering
does not speak to the filing of successive Wis.
Stat. § 974.06 motions at issue here. Because Matamoros
has not alleged a sufficient reason for why he did not raise his claims of
ineffective assistance in his previous § 974.06 motion, we conclude his
claims are barred. See Escalona, 185 Wis. 2d at 184. Accordingly, we affirm on this issue, albeit
on a slightly different basis than that relied on by the postconviction court. See Vanstone v. Town of Delafield, 191 Wis. 2d 586, 595, 530
N.W.2d 16 (Ct. App. 1995) (“[W]e may affirm on grounds different than those
relied on by the trial court.”).
¶9 In his reply brief, Matamoros
calls upon this court to invoke its liberal policy of determining whether he
has used the right procedural tool in this matter. Matamoros
asserts that he never intended to implicate Wis.
Stat. § 974.06 and that he meant the motions to be construed
strictly as they were labeled—as a “Motion to Quash DNA Surcharges” and a
“Motion for Reconsideration.”
¶10 Matamoros’s
argument misses its mark. His decision
to label his motion a motion for reconsideration is irrelevant; instead, we
look at the substance of the motion itself.
Whether Matamoros
intended to or not, he made constitutional claims in his motion for
reconsideration that brought the motion within the ambit of Wis. Stat. § 974.06, and he cannot
now avoid the effect of that filing. See bin-Rilla
v. Israel, 113 Wis. 2d 514, 521, 335 N.W.2d 384 (1983) (Courts liberally
construe pleadings despite label given by defendant.); Buckley v. Park Bldg. Corp.,
27 Wis. 2d
425, 431, 134 N.W.2d 666 (1965) (The nature of motion determined from its
substance, and not its label.); see also Waushara Cnty. v. Graf, 166 Wis. 2d 442, 452, 480
N.W.2d 16 (1992) (“While some leniency may be allowed, neither a trial court
nor a reviewing court has a duty to walk pro
se litigants through the procedural requirements or to point them to the
proper substantive law.”).
¶11 Because we have concluded that Matamoros’s ineffective assistance claims are
barred, we do not address whether his motion was sufficient to warrant an
evidentiary hearing. See State
v. Blalock, 150 Wis.
2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (“[C]ases should be decided on the
narrowest possible ground.”).
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.