State Of Wis. v. Allen
| Citation | 786 N.W.2d 124,2010 WI 89 |
| Decision Date | 16 July 2010 |
| Docket Number | No. 2007AP795.,2007AP795. |
| Parties | STATE of Wisconsin, Plaintiff-Respondent,v.Aaron Antonio ALLEN, Defendant-Appellant-Petitioner. |
| Court | United States State Supreme Court of Wisconsin |
For the defendant-appellant-petitioner there were briefs and oral argument by Robert R. Henak and Henak Law Office, S.C., Milwaukee.
For the plaintiff-appellant there was a brief by William L. Gansner, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
This is a review of an unpublished decision of the court of appeals State v. Allen, 2007AP795, unpublished slip op., 2008 WL 763248 (Wis.Ct.App. Mar. 25, 2008), affirming an order of the Milwaukee County Circuit Court, Dennis P. Moroney, Judge.
¶ 2 Aaron Antonio Allen brought a motion for postconviction relief under Wis. Stat. § 974.06 (2005-06) seven years after the direct appeal from his criminal conviction was considered by the court of appeals under the procedure for no-merit review. The circuit court denied the motion on grounds that the issues raised in the motion were issues that Allen could have raised in a response to his appellate counsel's no-merit report, and they were therefore deemed waived. The court of appeals affirmed.
¶ 3 This case requires us to apply the procedural requirements for postconviction motions set out in State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994), to the no-merit procedure for direct appeals set out in Wis. Stat. § (Rule) 809.32 (1997-98).1 The question at hand is whether Allen is barred from raising issues in his Wis. Stat. § 974.06 motion because he failed to raise them in a response to his attorney's no-merit report. Allen argues that he was not required to raise the issues in a response to the no-merit report and has now demonstrated sufficient reason for not raising them in a response to the no-merit report.
¶ 4 We conclude, following Wis. Stat. § 974.06, that a defendant is not required to file a response to a no-merit report. This means he is not required to raise issues in response to a no-merit report. However, a defendant may not raise issues in a subsequent § 974.06 motion that he could have raised in response to a no-merit report, absent a “sufficient reason” for failing to raise the issues earlier in the no-merit appeal. The fact that the defendant is not required to file a response to a no-merit report is not, by itself, a sufficient reason to permit the defendant to raise new § 974.06 claims.
¶ 5 Here, we conclude that Allen's 2007 postconviction motion is barred by Wis. Stat. § 974.06(4) and Escalona-Naranjo. Allen's § 974.06 motion is based entirely on issues that he could have raised in a response to his appellate counsel's no-merit report. He has not alleged a sufficient reason for failing to raise the issues in a response to the earlier no-merit report. The record reflects that the court of appeals properly followed no-merit procedure in 2000 and its decision carries a sufficient degree of confidence to warrant application of the Escalona-Naranjo bar to the issues of this motion. For these reasons, we affirm the court of appeals.
¶ 6 On May 14, 1995, Allen robbed the driver of a “Johnny cab” at gunpoint. 2 He was arrested at a residence the next morning. Later that day, the victim identified Allen in a police lineup. Allen was charged on May 16 in Milwaukee County Circuit Court with possession of a firearm by a felon, in violation of Wis. Stat. § 941.29(2) (1993-1994) and armed robbery in violation of Wis. Stat. §§ 943.32(1)(b) and 943.32(2). He pleaded not guilty to both charges.
¶ 7 These two charges initiated a long and protracted series of criminal proceedings. The record reflects that at least nine different attorneys represented Allen from charging through sentencing. His attorneys filed numerous motions, including several motions to suppress Allen's lineup identification, several motions in limine, and several motions to suppress Allen's statements. Allen also wrote a number of pro se letters to the court at various points in the proceedings. When the case finally proceeded to trial, in January of 1998, it resulted in a mistrial.
¶ 8 A jury trial was finally completed in October of 1998. The jury convicted Allen on both counts, and the circuit court sentenced Allen to 37 years of imprisonment. Allen filed a notice of intent to pursue postconviction relief, and Assistant State Public Defender Janet L. Barnes was appointed Allen's postconviction/appellate counsel. The record does not reflect that Attorney Barnes took any action on the case. On July 9, 1999, the Office of the State Public Defender appointed Attorney Craig M. Kuhary as Allen's postconviction/appellate counsel.
¶ 9 On March 14, 2000, Attorney Kuhary filed a no-merit report with the court of appeals pursuant to Wis. Stat. § (Rule) 809.32(1). Allen did not file a response to the no-merit report or a petition for review in this court. The no-merit report raised three potential issues: (1) whether the evidence was sufficient to support the jury's verdict; (2) whether the trial court erred in admitting evidence that Allen initially refused to participate in the pre-charging lineup; and (3) whether the sentencing court misused its discretion.
¶ 10 In an order dated August 1, 2000, the court of appeals explained:
State v. Allen, No.1999AP2818, unpublished order (Wis.Ct.App. August 1, 2000) (citations omitted). The court accordingly affirmed Allen's judgment of conviction and relieved Attorney Kuhary from representing Allen.
¶ 11 Nearly seven years later, on March 16, 2007, Allen filed a pro se motion for postconviction relief pursuant to Wis. Stat. § 974.06. The motion alleged that Allen's postconviction counsel was ineffective for failing to bring an ineffective assistance of counsel claim against Allen's trial counsel. Allen alleged that trial counsel was ineffective for failing to (1) seek suppression of the fruits of Allen's unlawful arrest; (2) seek suppression of the illegal lineup identification and resulting in-court identification; and (3) object to the prosecutor's use of Allen's conduct at the lineup as evidence of consciousness of guilt.
¶ 12 On March 21, 2007, the circuit court issued an order denying Allen's postconviction motion. Relying on State v. Tillman, 2005 WI App 71, 281 Wis.2d 157, 696 N.W.2d 574, and Escalona-Naranjo, the court concluded that the issues raised in Allen's § 974.06 motion were deemed waived because he failed to raise them in a response to his appellate counsel's no-merit report.
¶ 13 Allen appealed, and the court of appeals affirmed in an unpublished decision. Allen, unpublished slip op. at ¶ 5. The court explained:
Here, nothing in Allen's Wis. Stat. § 974.06 motion suggests and nothing in the record indicates that Allen was, at the time the no-merit report was filed, unaware of the issues underlying the claims of ineffective assistance of counsel ultimately raised in his motion. Although he blames postconviction counsel for failing to raise the issues in a postconviction motion, he offered no reason as to why he was unable to articulate in a response to the no-merit report the issues he now raises as the basis for his ineffective-assistance-of-counsel claims. The simple contention that counsel could have and should have raised these issues is not, without more, a sufficient reason to overcome the Escalona-Naranjo /Tillman bar.
Id., unpublished slip op. at ¶ 6.
¶ 14 Allen filed a petition for review. This court appointed Attorney Robert R. Henak to represent Allen and subsequently granted review.
¶ 15 Whether Allen's claims are procedurally barred depends upon the proper interpretation of Wis. Stat. § 974.06. This is a question of law that we review de novo. State v. Lo, 2003 WI 107, ¶ 14, 264 Wis.2d 1, 665 N.W.2d 756; Escalona-Naranjo, 185 Wis.2d at 175-76, 517 N.W.2d 157.
¶ 16 This case requires us to apply the procedural requirements of Escalona-Naranjo to the no-merit procedure under Wis. Stat. § (Rule) 809.32. We begin our discussion by explaining the no-merit procedure in Wisconsin. We then turn to the basic procedural requirements that must be met to bring a postconviction motion under Wis. Stat. § 974.06, particularly as they apply to ineffective assistance of counsel claims and no-merit proceedings. Finally, we apply these legal principles to the facts of this case, concluding that Allen has not demonstrated a sufficient reason for failing to raise in a response to the no-merit report the claims he raises now in his postconviction motion.
¶ 17 The Sixth Amendment of the United States Constitution requires the state to provide indigent criminal defendants with appellate counsel on a first appeal. Douglas v. California, 372 U.S. 353, 357, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). An indigent defendant's appellate counsel is bound by different ethical considerations than trial counsel. At trial, an attorney's belief that his client's defense is wholly frivolous “does not qualify his or her duty to the client or to the court.” McCoy v. Court of Appeals of Wis., 486 U.S. 429, 435, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). Upon appeal, however, the defendant is no longer protected by the presumption of innocence. Id. at 436, 108 S.Ct. 1895. An indigent defendant's counsel on appeal “cannot serve the client's interest without asserting specific...
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