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COURT OF APPEALS DECISION DATED AND FILED September 18, 2012 Diane M. Fremgen 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. |
Cir. Ct. No. 2001CF1184 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Wisconsin, Plaintiff-Respondent, v. Toni J. Toston, Defendant-Appellant. |
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APPEAL from an order of the circuit court for Milwaukee County: rebecca f. dallet, Judge. Affirmed.
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. Toni J. Toston appeals, pro se, from an order denying his third
postconviction motion. The circuit court
determined that his claims are barred by State v. Escalona-Naranjo, 185
BACKGROUND
¶2 Toston pled guilty in 2001 to attempted first-degree intentional homicide while using a dangerous weapon, attempted armed robbery, and armed robbery, all as a party to a crime. The circuit court imposed an aggregate forty-five-year term of imprisonment. With the assistance of appointed counsel, he filed a postconviction motion and then pursued a direct appeal from the judgment of conviction and the order denying postconviction relief. We summarily affirmed. State v. Toston, No. 2002AP2894-CR, unpublished slip op. (WI App Oct. 30, 2003).
¶3 Toston next began a series of collateral attacks on his conviction. In February 2006, Toston moved pro se to withdraw his guilty plea. The circuit court appointed counsel to represent him and conducted an evidentiary hearing on his claims. The circuit court denied relief, however, and Toston did not appeal. In May 2010, Toston filed another pro se postconviction motion seeking plea withdrawal, and the circuit court again denied relief. We dismissed Toston’s appeal. See State v. Toston, No. 2010AP1693-CR, unpublished order (WI App Aug. 27, 2010).
¶4 In November 2011, Toston filed the pro se postconviction motion underlying this appeal. He again sought plea withdrawal. The circuit court denied relief, and this appeal followed.
DISCUSSION
¶5 Toston filed his most recent postconviction motion pursuant to Wis. Stat. § 974.06 (2009-10).[1] Section 974.06 is the primary statutory mechanism for criminal defendants to challenge their convictions after the time for a direct appeal has passed. State v. Henley, 2010 WI 97, ¶50, 328 Wis. 2d 544, 787 N.W.2d 350. The remedy, however, is limited, because “[w]e need finality in our litigation.” Escalona-Naranjo, 185 Wis. 2d at 185. A defendant is therefore barred from pursuing claims under § 974.06 that could have been raised in an earlier postconviction motion or direct appeal absent a “sufficient reason” for not raising the claims previously. Escalona-Naranjo, 185 Wis. 2d at 181-82.
¶6 Toston has not proffered a sufficient reason why he could not fully present his current claims in his earlier postconviction litigation. Instead, he asserts that he has identified errors that he believes should be corrected. That assertion does not constitute a reason for failing to develop issues previously. His postconviction submission is therefore inadequate. See id.
¶7 Toston argues, however, that we should not apply Escalona-Naranjo because he wishes to rely on the inherent authority of the court. In support of his position, he asserts: “limitations on postconviction relief described in Escalona do not apply to a case invoking a court’s inherent authority.” See Henley, 328 Wis. 2d 544, ¶126 n.8 (Crooks, J., dissenting). His reliance on the Henley dissent is misplaced. “A dissent is what the law is not.” State v. Perry, 181 Wis. 2d 43, 49, 510 N.W.2d 722 (Ct. App. 1993).
¶8 The law in this state is stated by the majority in Henley:
[t]he fair administration of justice is not a license for courts, unconstrained by express statutory authority, to do whatever they think is “fair” at any given point in time. Rather, any conception of the fair administration of justice must include the principle of finality. Thus, while circuit courts do have inherent powers, we do not recognize a broad, inherent power to order a new trial in the interest of justice at any time, unbound by concerns for finality and proper procedural mechanisms.
Id., 328 Wis. 2d 544, ¶75 (footnote omitted).
¶9 Toston thus must pursue postconviction relief using the appropriate procedural mechanisms available. In this case, Toston invoked Wis. Stat. § 974.06 when he filed his postconviction motion “pursuant to” that statute. Toston, however, has not complied with the requirement, imposed by § 974.06 and developed in Escalona-Naranjo, that he articulate a sufficient reason for serial litigation. Therefore, his claims are barred.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.