District IV

 

January 22, 2014 


To:

Hon. Michael R. Fitzpatrick

Circuit Court Judge

51 S. Main Street

Janesville, WI 53545

 

Eldred Mielke

Clerk of Circuit Court

Rock Co. Courthouse

51 S. Main Street

Janesville, WI 53545

 

Nancy A. Noet

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857

Gerald A. Urbik

Asst. District Attorney

51 S. Main St.

Janesville, WI 53545

 

Earl DeWayne Phiffer 366323

Fox Lake Corr. Inst.

P.O. Box 200

Fox Lake, WI 53933-0200

 

You are hereby notified that the Court has entered the following opinion and order: 

 

 

 

 

 

 

 

2012AP1094

State of Wisconsin v. Earl DeWayne Phiffer (L.C. # 2002CF3370)

 

 

 

Before Lundsten, Higginbotham and Kloppenburg, JJ.

Earl Phiffer appeals an order denying a postconviction motion.  Based upon our review of the briefs and record, we conclude at conference that this case is appropriate for summary disposition.  See Wis. Stat. Rule 809.21 (2011-12).[1]  We affirm.

Phiffer argues that the circuit court should have granted his postconviction request for a hearing under Franks v. Delaware, 438 U.S. 154 (1978).  This appears to be a claim made under Wis. Stat. § 974.06.  Phiffer previously filed a pro se motion under § 974.06 in 2006.  A defendant may not pursue a second motion under that section without showing a sufficient reason why the current issues were not raised in the previous motion under that section.  Wis. Stat. § 974.06(4); State ex rel. Dismuke v. Kolb, 149 Wis. 2d 270, 273-74, 441 N.W.2d 253 (Ct. App. 1989).  Phiffer argues that this issue was not previously raised because his attorney in his first appeal, under Wis. Stat. Rule 809.30, was ineffective.  However, Phiffer does not explain why he did not raise the issue in his own first motion under § 974.06.  Ineffective assistance of counsel is not a convincing explanation because Phiffer did not have counsel then.  Therefore, we conclude that the issue is barred by § 974.06(4).

The State asks that we issue an order imposing certain conditions on future appeals by Phiffer, and that we find this appeal frivolous under Wis. Stat. Rule 809.25(3).  We deny those requests.

IT IS ORDERED that the order appealed from is summarily affirmed under Wis. Stat. Rule 809.21.


 

Diane M. Fremgen

Clerk of Court of Appeals

 


[1]  All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.