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COURT OF APPEALS DECISION DATED AND FILED December 27, 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. 2002CF4697 |
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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. Albert N. Satcher, Defendant-Appellant. |
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APPEAL from an order of the circuit court for Milwaukee County: richard j. sankovitz, Judge. Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Albert N. Satcher appeals from a circuit court order denying his motion
for postconviction relief brought under Wis.
Stat. § 974.06 (2009-10).[1] The circuit court determined that the motion
was procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d
168, 517 N.W.2d 157 (1994), and State v. Tillman, 2005 WI App 71,
281 Wis. 2d 157, 696 N.W.2d 574. We
affirm.
BACKGROUND
¶2 In
2002, Satcher pled guilty to first-degree reckless homicide by use of a
dangerous weapon. The circuit court
imposed a forty-year term of imprisonment.
With the assistance of appointed counsel, he filed a postconviction
motion challenging trial counsel’s effectiveness at sentencing, but the circuit
court denied relief. He pursued an
appeal to this court, and his appellate counsel filed a no-merit report pursuant
to Anders
v. California, 386 U.S. 738 (1967) and Wis.
Stat. Rule 809.32 (2003-04). Satcher
filed a response to the no-merit report.
Upon review of the record and the submissions from Satcher and his
counsel, we concluded that further appellate proceedings would lack arguable
merit, and we summarily affirmed. State
v. Satcher, No. 2004AP1304-CRNM, unpublished slip op. at 5 (WI App.
Dec. 13, 2005) (Satcher I).
¶3 In
August 2011, Satcher filed the postconviction motion underlying this
appeal. He alleged that his trial
counsel was ineffective because trial counsel failed to pursue suppression of
his confession and of the gun found in his home, and because trial counsel coerced
his guilty plea by refusing to bring a suppression motion or pursue other
avenues of defense. He sought plea
withdrawal. The circuit court concluded
that Satcher’s claims were barred and denied relief. He appeals.
DISCUSSION
¶4 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-Naranjo,
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 issue that the
prisoner hopes to present. See Escalona-Naranjo, 185 Wis. 2d at
184.
¶5 “A
no-merit appeal clearly qualifies as a previous motion under [Wis. Stat.] § 974.06(4).” State v. Allen, 2010 WI 89, ¶41, 328
Wis. 2d 1, 786 N.W.2d 124.
Accordingly:
when a defendant’s postconviction issues have been addressed by the no merit procedure under Wis. Stat. Rule 809.32, the defendant may not thereafter again raise those issues or other issues that could have been raised in the previous motion, absent the defendant demonstrating a sufficient reason for failing to raise those issues previously.
Tillman, 281
Wis. 2d 157, ¶19. We apply the rule
set forth in Escalona-Naranjo to a § 974.06 motion filed after a
no-merit appeal if “the no-merit procedures
(1) were followed; and (2) warrant sufficient confidence to apply the
procedural bar.” See Allen, 328 Wis. 2d 1, ¶62.
¶6 Satcher
demonstrates no inadequacy in the no-merit proceeding in his case. Our decision in Satcher I reflects that
we conducted a thorough review of the record.
We explained our agreement with appellate counsel’s description and
analysis of “the validity of Satcher’s guilty plea, trial counsel’s claimed
ineffectiveness at sentencing and the trial court’s exercise of sentencing
discretion.” Id., No. 2004AP1304-CRNM,
slip op. at 2. We also considered the
contentions raised by Satcher in his response to the no-merit report,
addressing his claims that “he was entitled to suppression of his confession
and the gun, and [his] challenges [to] the validity of his guilty plea.” See id. After discussing and analyzing the issues
that might be thought to support an appeal, we concluded that further
proceedings would lack arguable merit. Id.,
No. 2004AP1304-CRNM, slip op. at 5.
¶7 We
are satisfied that the no-merit procedures were followed in Satcher
I. Therefore, our affirmance of
Satcher’s conviction “carries a sufficient degree of confidence warranting the
application of the procedural bar.” See Tillman,
281 Wis. 2d 157, ¶20.
¶8 Satcher
contends, however, that we should disregard Tillman here because that
case postdates our decision in Satcher I. We reject this contention. Our decision in Tillman addressed the
mechanics of applying Escalona-Naranjo when a prisoner
seeks relief under Wis. Stat. § 974.06
after pursuing an appeal under Wis. Stat.
Rule 809.32. Proceedings under § 974.06
are civil in nature. Wis. Stat. § 974.06(6). We presume the retroactive application of
judicial holdings that establish rules of civil procedure. See Trinity Petroleum, Inc. v. Scott Oil Co.,
2007 WI 88, ¶¶80-81, 302 Wis. 2d 299, 735 N.W.2d 1. Moreover, application of Tillman to Satcher’s
claims “is consistent with the fact that the Escalona-Naranjo rule has
been applied retroactively by our courts in the past.” See State ex rel. Krieger v. Borgen, 2004 WI App 163, ¶12, 276 Wis. 2d
96, 687 N.W.2d 79. Consequently, we
conclude that Tillman is applicable to Satcher. He thus may not pursue a second or subsequent
motion under § 974.06 absent a sufficient reason for failing to include a
full presentation of his claims in response to the no-merit report. See Tillman, 281 Wis. 2d 157, ¶19.
¶9 In
his appellate briefs, Satcher asserts that he did not raise his current claims
previously because he relied on the authority of a federal case, Page
v. Frank, 343 F.3d 901 (7th Cir. 2003).
In his view, Page “held [that the defendant] had not waived his claim by
failing to raise his issues in his pro se
response to [an] Anders brief.” Satcher
explains that “it was this authority that Satcher relied on, in not presenting
his claims in response to counsel’s Anders brief.”
¶10 Satcher,
however, first alleges his reliance on Page in his appellate brief-in-chief. He did not cite Page in his
postconviction motion, nor did he offer the circuit court any other reason to disregard
the procedural bar imposed by Wis. Stat. § 974.06
and Escalona-Naranjo.
¶11 Satcher’s
failure to allege within the body of his postconviction motion any basis for serial
litigation bars him from proceeding further in this matter. “Defendants must, at the very minimum, allege
a sufficient reason in their motions to overcome the Escalona-Naranjo
bar.” Allen, 328 Wis. 2d
1, ¶46. When a defendant fails
to identify and support a sufficient reason for serial litigation in the postconviction
motion itself, “the circuit court should summarily deny the motion.” See
id.,
¶91. The circuit court properly did so
here. See id.
¶12 We
need not consider Satcher’s claims on appeal any further. For the sake of completeness, however, we
note, as did both the State and the circuit court, that Satcher presented the
core of his current claims to this court in his response to the no-merit
report. There, he alleged that he was
“entitled to” an order suppressing both physical evidence and his statements,
and he alleged that his trial counsel was ineffective by failing to file a suppression
motion seeking such an order. He also
alleged “that [his] guilty plea was not knowingly, intelligently, or
voluntarily entered.” We rejected all of
these contentions. We explained why a
suppression motion would lack arguable merit and why the record reflected a
knowing, intelligent, and voluntary plea. Satcher I, 2004AP1304-CRNM, slip op.
at 3-5. We will not revisit previously
rejected issues, no matter how artfully they are restated. See State v. Witkowski, 163 Wis. 2d
985, 990, 473 N.W.2d 512 (Ct. App. 1991).
We affirm.
By
the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.