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COURT OF APPEALS DECISION DATED AND FILED December 13, 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. 2000CF5889 |
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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. Aaron C. Lane, Defendant-Appellant. |
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APPEAL from an order of the circuit court for Milwaukee County: jeffrey a. conen, Judge. Affirmed.
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. Aaron C. Lane, pro se,
appeals from an order that denied his postconviction motion filed pursuant to Wis. Stat. § 974.06
(2009-10).[1] The circuit court determined that Lane’s
claims are procedurally barred by State v. Escalona-Naranjo, 185
Wis. 2d 168, 517 N.W.2d 157 (1994).
We agree and affirm.
BACKGROUND
¶2 In
2002, a jury found Lane guilty of armed robbery as a party to a crime. He
pursued an appeal with the assistance of appointed counsel. We affirmed his conviction. See
State
v. Lane, No. 2003AP1079-CR, unpublished slip op. (WI App Dec. 5, 2003).
¶3 Lane, proceeding pro se, moved in 2010 to vacate a DNA
surcharge imposed at sentencing. The
circuit court denied the motion and then denied reconsideration. Lane did not appeal.
¶4 In
2011, Lane filed the pro se
postconviction motion underlying this appeal.
He claimed that his trial counsel was constitutionally ineffective by
failing to seek a dismissal of the case and by failing to move to suppress his
custodial statements. The circuit court concluded
that the claims are barred, and Lane appeals.
DISCUSSION
¶5 “We
need finality in our litigation.” Escalona-Naranjo,
185 Wis. 2d at 185. Thus, a prisoner
must “raise all grounds regarding postconviction relief in his or her original,
supplemental or amended motion.” Id.
¶6 In
this case, Lane pursued both an appeal with the assistance of counsel and pro se postconviction litigation before
he filed the postconviction motion underlying the instant appeal. Therefore, we will not entertain his current
claims unless he demonstrates a sufficient reason for failing to raise them in earlier
proceedings. See id. at 184. We assess
the sufficiency of a prisoner’s reason by examining the four corners of the
postconviction motion. See
State v. Allen, 2004 WI 106, ¶¶9, 27, 274 Wis. 2d 568, 682 N.W.2d
433.
¶7 Lane
included no reason for serial litigation in his most recent postconviction
motion. On appeal, however, he argues
that his omission should not bar his claims because the circuit court “should
have construed [his] motion as ineffective assistance of postconviction
counsel.” Ineffective assistance of
postconviction counsel may in some circumstances constitute a sufficient reason
for failing to raise claims in a first postconviction motion. State ex rel. Rothering v. McCaughtry,
205 Wis. 2d 675, 682, 556 N.W.2d 136 (Ct. App. 1996). Nonetheless, this principle does not aid Lane
here. If he believed that ineffective
assistance of postconviction counsel justified his failure to raise his claim
in earlier litigation, he had an obligation to say so in his postconviction
motion. “Defendants must, at the very
minimum, allege a sufficient reason in their motions to overcome the Escalona-Naranjo
bar.” State v. Allen, 2010 WI
89, ¶46, 328 Wis. 2d 1, 786 N.W.2d 124.
We cannot overlook Lane’s failure to satisfy the minimum requirement
necessary to sustain a second or subsequent postconviction motion.
¶8 Moreover,
nothing in Rothering permits a defendant to file a series of pro se postconviction motions based on
an assertion that his or her lawyer was ineffective early in the appellate
process. Lane’s suggestion that
postconviction counsel erred by failing to raise a claim on direct appeal is
insufficient to explain why Lane himself did not raise his current claims when
he moved for postconviction relief from the DNA surcharge.
¶9 Lane offered no reason, much less a sufficient reason, in his
circuit court submission to justify another postconviction motion. 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.