COURT OF APPEALS DECISION DATED AND FILED November 22, 2011 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. |
Cir. Ct. No. 2001CF4308 |
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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. Marius A. Battle, Defendant-Appellant. |
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APPEAL from an order of the circuit court for Milwaukee County: jeffrey a. conen, Judge. Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Marius A. Battle, pro se,
appeals from an order that denied his motion to vacate a deoxyribonucleic acid
surcharge imposed at his sentencing. He
contends that he is entitled to relief because his trial lawyer was
constitutionally ineffective by failing to challenge the surcharge earlier in
the proceedings. The claim is
procedurally barred, and we affirm.
I.
¶2 A
jury found Battle guilty of first-degree reckless injury while armed with a
dangerous weapon, as a party to a crime and as a habitual criminal. At his sentencing in July 2002, the circuit
court imposed, among other penalties, a $250 deoxyribonucleic acid
surcharge. See Wis. Stat. § 973.046(1g).
Battle pursued both a postconviction
motion and an appeal to this court. He
argued that the evidence at trial was insufficient to support the jury’s
verdict, the circuit court erred by denying a suppression motion, and his trial
lawyer was ineffective when litigating that suppression motion. We rejected his arguments and affirmed. See
State
v. Battle, No. 2007AP1059-CR, unpublished slip op. (WI App Apr. 22,
2008).
¶3 In
April 2010, Battle moved to vacate the deoxyribonucleic acid surcharge. He argued that the circuit court erroneously
exercised its sentencing discretion by failing to explain the reason for
imposing a surcharge, in violation of State v. Cherry, 2008 WI App 80, ¶9,
312 Wis. 2d 203, 207–208, 752 N.W.2d 393, 395. He asked the circuit court to exercise its
inherent power to relieve him of the surcharge.
A motion to vacate a deoxyribonucleic acid surcharge, however, is a
sentence modification motion. See State v. Nickel, 2010 WI App 161, ¶5,
330 Wis. 2d 750, 755, 794 N.W.2d 765, 767.
Such motions must be brought within the time limits for direct appeal
under Wis. Stat. § 974.02 and
Wis. Stat. Rule 809.30, or within
ninety days of sentencing under Wis.
Stat. § 973.19. See Nickel, 2010 WI App 161, ¶5, 330 Wis. 2d
at 756, 794 N.W.2d at 767. The circuit
court therefore determined that Battle’s motion, brought approximately six
years after his sentencing, was untimely under those statutes.
¶4 The
circuit court also considered the viability of Battle’s postconviction motion
under Wis. Stat. § 974.06. A motion under that statute is not subject to
the deadlines governing a direct appeal.
See Nickel, 2010 WI App 161, ¶7, 330 Wis. 2d at 757, 794
N.W.2d at 768. Nonetheless, § 974.06
did not afford Battle any relief because, as the circuit court explained,
prisoners may not use that statute to pursue challenges to the exercise of
sentencing discretion. See Nickel,
2010 WI App 161, ¶7, 330 Wis. 2d at 757, 794 N.W.2d at 768. The circuit court therefore denied Battle’s
claim.
¶5 In
October 2010, Battle filed the postconviction motion underlying the instant
appeal. He argued that his trial lawyer
performed ineffectively at sentencing by “allowing” the circuit court to
exercise its discretion erroneously when imposing the deoxyribonucleic acid
surcharge and that his lawyer performed ineffectively again by not pursuing an
appeal to challenge the surcharge. The
circuit court determined that its earlier order correctly resolved Battle’s
challenge to the exercise of sentencing discretion. Further, the circuit court determined that Battle’s
trial lawyer was not ineffective by failing to pursue a challenge in any forum
based on the holding in Cherry because that case had not yet
been decided at the time of Battle’s sentencing. Battle appeals.
II.
¶6 In
this court, Battle begins by asserting that his claim for relief should be viewed
as a proceeding under Wis. Stat. § 974.06,
although he did not cite that statute in his postconviction motion. We agree.
Section 974.06 is the vehicle by which defendants may raise
constitutional challenges after the time for a direct appeal has expired. See
id. Battle’s claim that his trial lawyer
performed ineffectively alleges a violation of the constitutional right to
counsel. See State v. Ludwig, 124
Wis. 2d 600, 606, 369 N.W.2d 722, 725 (1985) (constitutional right to
counsel is right to effective assistance of counsel). Nonetheless, our agreement that Battle
brought his claim under § 974.06 does not assist him.
¶7 “[Wisconsin Stat. §] 974.06(4)
compels a prisoner to raise all grounds regarding postconviction relief in his
or her original, supplemental or amended motion.” State v. Escalona-Naranjo, 185 Wis. 2d
168, 185, 517 N.W.2d 157, 163–164 (1994). A litigant who wishes to pursue a second or
subsequent postconviction motion under § 974.06 may not do so without
first demonstrating a sufficient reason for failing to raise the issue in the
original postconviction proceeding. State
v. Lo, 2003 WI 107, ¶44, 264 Wis. 2d 1, 22,
665 N.W.2d 756, 766. A sufficient reason
for a second or subsequent postconviction motion must be more than a conclusory
allegation. See State v. Allen, 2010 WI 89, ¶¶90–91, 328 Wis. 2d 1, 33–34,
786 N.W.2d 124, 140. Whether a prisoner
has presented a sufficient reason to avoid the procedural bar to serial
litigation is a question of law that we review de novo. See State v. Tolefree, 209 Wis. 2d 421,
424, 563 N.W.2d 175, 176 (Ct. App. 1997).
¶8 We
determine the sufficiency of a prisoner’s reason for bringing a second or
subsequent postconviction motion by examining the contents of the motion. See State v. Allen, 2004 WI 106, ¶¶9,
27, 274 Wis. 2d 568, 576, 588, 682 N.W.2d 433, 437, 443. Here, our examination is quickly
completed. Battle offered the circuit
court no explanation for why he did not pursue his current complaints about the
effectiveness of his trial lawyer in his first postconviction motion, his
direct appeal, or the pro se motion
he filed in April 2010. This alone
requires affirming the circuit court’s order denying his claim. See
Tolefree,
209 Wis. 2d at 426–427, 563 N.W.2d at 177.
¶9 Because
we affirm the order denying Battle’s claim for reasons other than those relied
upon by the circuit court, we need not discuss its reasoning. See
State
v. Bembenek, 2006 WI App 198, ¶10, 296 Wis. 2d 422, 430, 724
N.W.2d 685, 688–689 (noting that “when an appellate court affirms on other
grounds, it need not discuss the [circuit] court’s chosen grounds of
reliance”). We see no reason to
undertake such a discussion here, and we decline to do so.
By
the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.