State v. Nash, 032916 WICA, 2014AP2935

Docket Nº:2014AP2935
Opinion Judge:PER CURIAM.
Party Name:State of Wisconsin, Plaintiff-Respondent, v. Silkie L. Nash, Defendant-Appellant.
Judge Panel:Before Curley, P.J., Brennan and Brash, JJ.
Case Date:March 29, 2016
Court:Court of Appeals of Wisconsin
 
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State of Wisconsin, Plaintiff-Respondent,

v.

Silkie L. Nash, Defendant-Appellant.

No. 2014AP2935

Court of Appeals of Wisconsin, District I

March 29, 2016

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL from an order of the circuit court for Milwaukee County: Cir. Ct. No. 1999CF3374 DENNIS P. MORONEY, Judge.

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

PER CURIAM.

¶1 Silkie L. Nash, pro se, appeals a circuit court order that denied his motion for postconviction relief filed pursuant to Wis.Stat. § 974.06 (2013-14).1 The circuit court concluded that Nash's claims are procedurally barred and substantively meritless. We agree and affirm.

BACKGROUND

¶2 The State charged Nash with first-degree intentional homicide following the fatal shooting of another man on July 4th, 1999. A jury found Nash guilty. The circuit court imposed a life sentence and ordered that Nash would be eligible for parole after serving thirty years in prison. See Wis. Stat. § 973.014(1)(b) (1999-2000).

¶3 The state public defender appointed Attorney Thomas Erickson to serve as postconviction and appellate counsel for Nash in his appeal of right. With Attorney Erickson's assistance, Nash pursued an appeal challenging the sufficiency of the evidence. We affirmed. See State v. Nash, No. 2001AP6-CR, unpublished op. and order (WI App Oct. 8, 1991) (Nash I).

¶4 Proceeding pro se, Nash moved in 2010 for postconviction relief on two grounds. Relying on State v. Cherry, 2008 WI App. 80, 312 Wis.2d 203, 752 N.W.2d 393, he sought a refund of a DNA surcharge imposed at sentencing. Relying on the authority of Wis.Stat. § 974.06 (2009-10), he alleged that his trial counsel and postconviction counsel were ineffective by failing to raise the surcharge issue on his behalf. Nash did not prevail on any of the claims.

¶5 Nash, again pro se, next filed the postconviction motion underlying this appeal. He alleged that the sentencing court imposed a parole eligibility date in violation of the constitutional prohibition against ex post facto punishment. Specifically, he contended that the statute permitting a circuit court to choose a parole eligibility date for a person serving a life sentence "was a new law passed after the occurrence of the fact or commission of the alleged act of first degree intentional murder committed on July 4, 1999." His case, he alleged, was governed by a prior law that relied on a statutory formula for determining the parole eligibility date of an inmate serving a life sentence. He further alleged that his trial counsel was ineffective in advising him in matters related to his parole eligibility, and that his appellate counsel was ineffective in turn for failing to challenge both the effectiveness of trial counsel and the sentence Nash received.

¶6 The circuit court rejected Nash's claims, concluding they were procedurally barred and lacked merit. Nash appeals.

DISCUSSION

¶7 Preliminarily, we examine the State's suggestion that Nash launched his current round of litigation in the wrong court. Nash alleges ineffectiveness on the part of his "appellate counsel, " but, the State argues, challenges to appellate counsel's effectiveness may not be raised in circuit court but must be raised in the court of appeals under State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992). We conclude that Knight does not control here.

¶8 Although Nash faults his "appellate counsel" for failing to challenge trial counsel's effectiveness and for failing to challenge the legality of Nash's sentence, "appellate counsel" could not have raised the claims that Nash describes. A defendant who alleges ineffective assistance of trial counsel or who seeks sentence modification must initially raise such claims by postconviction motion in the circuit court. See State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 677-78, 556 N.W.2d 136 (Ct. App. 1996) (describing forum for raising claims of ineffective assistance of trial counsel); State v. Walker, 2006 WI 82, ¶30, 292 Wis.2d 326, 716 N.W.2d 498 (describing forum for raising sentence modification claims). Thus, despite Nash's references to the errors and omissions of "appellate counsel, " Nash's current litigation in fact raises claims that Attorney Erickson was ineffective in his role as postconviction counsel by failing to bring postconviction motions in the circuit court asserting trial counsel's ineffectiveness and seeking sentence modification. See Rothering, 205 Wis.2d at 679.

¶9 Claims of ineffective assistance of counsel should normally be raised in the court where the allegedly ineffective conduct took place. See id. The supreme court has recently confirmed the ongoing vitality of this rule. See State ex rel. Kyles v. Pollard, 2014 WI 38, ¶38, 354 Wis.2d 626, 847 N.W.2d 805 (opining that "claims of ineffective assistance of counsel should generally be brought in the...

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