District I

 

January 7, 2013 


To:

Hon. David A. Hansher

Milwaukee County Circuit Court

901 North 9th Streeet

Milwaukee, WI  53233

 

John Barrett, Clerk

Milwaukee County Circuit Court

821 W. State Street, Room 114

Milwaukee, WI  53233

 

William L. Gansner

Assistant Attorney General

P.O. Box 7857

Madison, WI  53707-7857

Karen A. Loebel

Asst. District Attorney

821 W. State St.

Milwaukee, WI  53233

 

Johnnie Lawrence Burns Jr., #156480

Waupun Correctional Institution

P.O. Box 351

Waupun, WI  53963-0351

 

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

 

 

 

 

 

 

 

2012AP457

State v. Johnnie Lawrence Burns, Jr.

(L.C. #1988CF880536)

 

 

 

Before Curley, P.J., Fine and Brennan, JJ.

Johnnie Lawrence Burns, Jr., pro se, appeals an order denying his postconviction motion filed pursuant to Wis. Stat. § 974.06 (2009-10) and State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996).[1]  Based upon our review of the briefs and the record, we conclude at conference that this case is appropriate for summary disposition and affirm.  See Wis. Stat. Rule 809.21(1). 

Background

In a complaint filed in March 1988, Burns was charged with numerous crimes for his role as one of three men who committed nine robberies within sixty to ninety minutes at six separate locations.  Following a jury trial, he was convicted of one count of robbery as a party to the crime, eight counts of armed robbery as a party to the crimes, one count of operating a vehicle without owner’s consent, and one count of felon in possession of a firearm.  He was sentenced to sixty-five years’ imprisonment. 

Burns raised three issues on direct appeal:  (1) the show-up procedure employed by the Milwaukee police was unconstitutional; (2) the circuit court erred when it denied trial counsel’s motion to withdraw; and (3) the circuit court erroneously exercised its discretion when it sentenced him.  See State v. Burns, No. 1990AP821-CR, unpublished slip op. at 2 (WI App Feb. 5, 1991).  We affirmed and the Wisconsin Supreme Court denied review. 

In July 1992, the circuit court denied Burns’ pro se motion to modify his sentence and his request for the production of trial transcripts. 

In January 2012, Burns filed the pro se motion seeking postconviction relief that underlies this appeal.  He argued:  (1) his trial counsel was ineffective for “fail[ing] to object, to properly investigate, and to move for a mistrial” and for “[f]ail[ing] to raise the clear violation of Miranda [v. Arizona, 384 U.S. 436 (1966),] which dictates the suppression of evidence”; (2) his postconviction counsel was ineffective for failing to argue trial counsel’s ineffectiveness; (3) the circuit court erroneously exercised its discretion, apparently premised on its denial of his motion to suppress the show-up identification; and (4) his appellate counsel was ineffective for not previously raising these claims.[2] 

            The postconviction court rejected Burns’ arguments on a number of bases.  It pointed out that Burns’ claims that his arrest was unlawful and that the show-up was unconstitutional and/or impermissibly suggestive were the subject of a prior suppression motion and the circuit court’s findings were upheld on appeal.  Additionally, the postconviction court held that even if postconviction counsel had filed a motion addressing the issues Burns raised, the circuit court would have denied it based on its prior rulings and concluded that Burns could not establish prejudice.  The postconviction court further noted that Burns did not offer any new information with his most recent filing and that Wis. Stat. § 974.06 could not be used to relitigate issues that had already been reviewed.  The postconviction court also explained that Burns’ claims of ineffective assistance of trial counsel did not establish either deficient performance or prejudice under Strickland v. Washington, 466 U.S. 668, 687 (1984).  Without such a showing, the postconviction court concluded that there was no basis for postconviction counsel to assert trial counsel’s ineffectiveness.

This court agrees with the postconviction court’s assessment and adopts its decision as our own.  See Wis. Ct. App. IOP VI(5)(a) (Sept. 15, 2012) (“When the [circuit] court’s decision was based upon a written opinion ... of its grounds for decision that adequately express the panel’s view of the law, the panel may incorporate the [circuit] court’s opinion or statement of grounds, or make reference thereto, and affirm on the basis of that opinion.”).

Upon the foregoing reasons,

IT IS ORDERED that the postconviction court’s order is summarily affirmed.  See Wis. Stat. Rule 809.21(1).


 

Diane M. Fremgen

Clerk of Court of Appeals


[1]  All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.

[2]  To the extent Burns challenges his appellate counsel’s representation, such a claim is generally raised by filing a habeas petition with the appellate court that heard the appeal, see State v. Knight, 168 Wis. 2d 509, 520, 484 N.W.2d 540 (1992), while a claim of ineffective assistance of postconviction counsel is raised in the circuit court either by filing a habeas petition or by Wis. Stat. § 974.06, see State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 681, 556 N.W.2d 136 (Ct. App. 1996).  Because Burns has pursued the latter option, we construe his claim as one of ineffective assistance of his postconviction counsel.