CA Blank Order

Hon. Mark T. Slate

Circuit Court Judge

492 Hill Street

P.O. Box 3188

Green Lake, WI 54941

Susan J. Krueger

Clerk of Circuit Court

Green Lake County Courthouse

P.O. Box 3188

Green Lake, WI 54941

Sarah K. Larson

Assistant Attorney General

P. O. Box 7857

Madison, WI 53707-7857

Kyle J. Sargent

District Attorney

P.O. Box 3188

Green Lake, WI 54941-3188

Lawrence J. Gould, #2538

Racine Corr. Inst.

P.O. Box 900

Sturtevant, WI 53177-0900

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



	2012AP2267	State of Wisconsin v. Lawrence J. Gould (L.C. # 2001CF14)

Before Brown, C.J., Reilly and Gundrum, JJ.

Lawrence Gould appeals pro se from a circuit court order denying his Wis. Stat. § 974.06 (2011-12)[1] motion. The State argues on appeal that Gould’s claims are barred under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), because he did not raise the claims in his Wis. Stat. Rule 809.32 appeal from his conviction. State v. Allen, 2010 WI 89, ¶¶40-41, 328 Wis. 2d 1, 786 N.W.2d 124. Based upon our review of the briefs and record, we conclude at conference that this case is appropriate for summary disposition. Wis. Stat. Rule 809.21. We affirm the circuit court because the Escalona bar applies.

Gould appealed his child enticement conviction via a Wis. Stat. Rule 809.32 (2001-02) no-merit appeal. Gould did not file a response to his appointed counsel’s no-merit report. We affirmed Gould’s conviction in June 2003. State v. Gould, No. 2002AP3231-CRNM, unpublished op. and order (WI App June 11, 2003). In our opinion affirming Gould’s conviction, we concluded that there would be no arguable merit to an appellate challenge to Gould’s no contest plea and his twenty-five-year sentence was a proper exercise of circuit court discretion. Id. at 2-3.

In September 2012, Gould filed a Wis. Stat. § 974.06 motion alleging that his First Amendment rights were violated when the circuit court considered the views of the presentence investigation report author that Gould’s sexual fantasies made him a risk to the community.[2] Gould also asserted a self-incrimination claim and contended that the State breached the plea agreement at sentencing when it noted that Gould thought poorly of the presiding judge. Gould also argued that the State used perjured testimony to convict him, and he alleged that the sexual assault was physically impossible.[3] The circuit court denied Gould’s Wis. Stat. § 974.06 motion.

All of Gould’s Wis. Stat. § 974.06 claims arise from the record created at the time of Gould’s conviction and no-merit appeal. These claims could have been raised in a response to counsel’s no-merit report in his direct appeal. Gould’s § 974.06 motion did not offer a reason, let alone a sufficient reason, for failing to raise his claims in his no-merit appeal. Allen, 328 Wis. 2d 1, ¶¶4-5, 41.

In Gould’s no-merit appeal, we reviewed the record and concluded that there would be no issue with arguable merit for appeal. We properly followed the no-merit procedures. Allen, 328 Wis. 2d 1, ¶32. Therefore, Gould’s prior no-merit appeal serves as a procedural bar to his § 974.06 motion because the motion raised issues that could have been raised in his no-merit appeal. See State v. Tillman, 2005 WI App 71, ¶27, 281 Wis. 2d 157, 696 N.W.2d 574.

Upon the foregoing reasons,

IT IS ORDERED that the order of the circuit court is summarily affirmed.

[1] All subsequent references to the Wisconsin Statutes are to the 2011-12 version.

[2] We conclude below that Gould’s Wis. Stat. § 974.06 motion is barred. Even if the motion were not barred, we would conclude that this issue lacks merit. Whether a defendant poses a risk to public safety is a proper consideration at sentencing. State v. Ziegler, 2006 WI App 49, ¶23, 289 Wis. 2d 594, 712 N.W.2d 76.

[3] The repeated sexual assault of a child charge was dismissed and read-in as part of Gould’s plea agreement.