|
COURT OF APPEALS DECISION DATED AND RELEASED March 21, 1996 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1299
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JANE I. PECKHAM,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Dane County:
ROBERT R. PEKOWSKY, Judge. Affirmed.
Before Gartzke, P.J.,
Dykman and Sundby, JJ.
PER
CURIAM. Jane I. Peckham appeals from an order denying her
second postconviction motion. The
issues are whether Peckham provided a sufficient reason for failing to
previously raise the issue she now raises, and if so, whether she was denied
due process of law when the sentencing court allowed the State to amend the
repeater allegation (repeater amendment issue) to correct a clerical
error. Because we conclude that Peckham
did not provide a sufficient reason for failing to raise the repeater amendment
issue previously, she is precluded from raising it now. Section 974.06(4), Stats.; State v. Escalona-Naranjo, 185 Wis.2d
168, 185-86, 517 N.W.2d 157, 163-64 (1994).
Therefore, we affirm.
A jury found Peckham
guilty of criminal damage to property, contrary to §§ 943.01(1) and (2)(d), Stats., 1987-88. The State charged Peckham as a repeat
offender because she had been previously convicted of armed robbery.[1] At sentencing, the prosecutor moved to amend
the repeater allegation to correct the date of that conviction from August 17,
1983, to August 31, 1983. Peckham's counsel
objected and claimed that the prosecutor was bound by the erroneous date in the
complaint, although there was no claimed prejudice to Peckham.[2] The trial court overruled the objection and
allowed the amendment. Peckham's
counsel unsuccessfully sought a new trial, but did not raise the repeater
amendment issue. He then filed a no
merit report, but again did not raise the repeater amendment as a potential
issue. Although Peckham responded to
the report, she also did not raise the repeater amendment issue.[3] When we independently reviewed the record,
as required by Anders v. California, 386 U.S. 738 (1967), and Rule 809.32, Stats., we did not view this repeater amendment as an issue
of arguable merit.
In a second
postconviction motion, Peckham raised the repeater amendment issue.[4] However, the plain language of
§ 974.06(4), Stats.,
requires a defendant who initially raises an issue in a subsequent
postconviction motion, to provide a sufficient reason for failing to raise that
issue previously to avoid the preclusion of Escalona-Naranjo. 185 Wis.2d at 185-86, 517 N.W.2d at 163-64.
Peckham's reason for
failing to raise the repeater amendment issue earlier is that she claims to
have urged her appellate counsel to raise the issue, but that he refused to do
so. The trial court denied the motion
because we adopted the no merit report in a per curiam opinion and concluded
that there were no appellate issues of arguable merit. State v. Peckham, No.
90-2174-CR-NM, unpublished slip op. at 7 (Wis. Ct. App. Jun. 13, 1991).
We conclude that Peckham
did not comply with Escalona-Naranjo's procedural
requirement. Although her excuse for
not raising this issue previously is that she is not a lawyer, this did not
interfere with her ability to disagree vigorously with appellate counsel on
other issues and respond extensively to the no merit report. See
Rule 809.32(1), Stats. We conclude that Peckham's reason is
insufficient to comply with Escalona-Naranjo because she does not
explain her failure to raise the repeater amendment issue in her response after
appellate counsel refused to raise the issue.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] In correspondence filed to this court, Peckham asserts that she was convicted of violating § 943.32(1)(b), Stats., 1981-82, rather than § 943.32(1)(a). However, that error is harmless because that prior conviction, under either statutory subsection, is sufficient to prove that she is a repeater and subject to an enhanced penalty under § 939.62, Stats.
[2] Peckham suffered no prejudice because she was charged as a repeater and the amendment did not change her status as a repeater since both dates were within the five-year statutory period. Section 939.62(2), Stats.