State v. Anderson
| Decision Date | 30 September 2014 |
| Docket Number | No. 2013AP1434.,2013AP1434. |
| Citation | 357 Wis.2d 721,855 N.W.2d 903 (Table) |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Justin L. ANDERSON, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
Justin L. Anderson, pro se, appeals an order denying his motion for postconviction relief brought under Wis. Stat. § 974.06 (2011–12).1 He alleges that his trial counsel was ineffective for failing to seek relief from the joinder of his trial with that of his co-defendant, Paris Billups, following Billups's testimony during his cross-examination. Anderson alleges that his postconviction counsel was ineffective in turn for failing to challenge trial counsel's effectiveness. The circuit court determined that the claims are procedurally barred by State v. Escalona–Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994), and State v. Tillman, 2005 WI App 71, 281 Wis.2d 157, 696 N.W.2d 574. We affirm.
¶ 2 According to the State, Anderson and Billups forced their way into an apartment on May 14, 2008, sexually assaulted the female occupant, T.B., battered the male occupant, G.J., and then fled with various items from the apartment. The State charged Anderson and Billups with six felonies as a party to a crime, namely, burglary, false imprisonment, first-degree sexual assault, two counts of robbery by use of force, and one count of substantial battery. Additionally, the State charged each man with one count of first-degree sexual assault as a principal actor.
¶ 3 Anderson gave custodial statements that the circuit court suppressed on the ground that the police obtained them in violation of Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).2 The circuit court found, however, that Anderson confessed voluntarily in his second interview with police and that the State could therefore use the statements made in that interview for impeachment and rebuttal purposes if Anderson took the stand at trial and testified in a way that conflicted with his extrajudicial statements. After the circuit court ruled on the admissibility of Anderson's statements, all parties agreed that no basis existed to sever Anderson's trial from Billups's, and the matters proceeded to a joint trial.
¶ 4 T.B. testified that two men she did not know broke into her apartment late in the evening of May 14, 2008, had forced sexual contact with her, and fled with cash and other items, including several electronic devices. G.J. testified that he was asleep in the apartment that he shared with T.B. when he was awakened by intruders kicking and beating him. G.J. said that when the attackers fled the apartment, they stole his cell phone.
¶ 5 A police detective described using telephone records to determine the telephone numbers dialed from G.J.'s cell phone after it was allegedly stolen. The investigation revealed that a woman named Samantha Carr received calls from the stolen cell phone. Carr testified next. She said that she knew Anderson and his friend Billups, and she identified Anderson as the person who called her using the stolen cell phone. Additional police officers testified about locating Anderson and Billups and collecting samples of their DNA for analysis. A forensic scientist testified that the DNA profiles of Anderson and Billups matched the DNA profiles of the men who deposited semen found on T.B. when she was examined early in the morning of May 15, 2008.
¶ 6 Billups took the stand in his own defense. He told the jury that he and Anderson met T.B. for the first time near a parking lot on May 14, 2008, and she agreed to have sex with each of them in Billups's car. Billups said that after the sexual encounters, T.B. agreed that Anderson could use the bathroom in her apartment. When a man in the apartment confronted Billups and Anderson, they attacked and beat the man. Billups denied that he stole anything when he left the apartment, and he said that he did not see Anderson take anything either.
¶ 7 During cross-examination, the State questioned Billups about calls to his cell phone numbers that originated from G.J.'s allegedly stolen cell phone. While Billups did not dispute that his telephone numbers appeared on telephone records as numbers that received calls from G.J.'s stolen cell phone, Billups denied any knowledge of the calls and testified that he could not explain them.
¶ 8 Neither Anderson nor Billups presented any other witnesses. Anderson declined to testify. During closing argument, both Anderson and Billups conceded that they were guilty of substantial battery and otherwise maintained their innocence.
¶ 9 The jury found both men guilty of substantial battery, and the jury additionally found Anderson guilty of one count of robbing G.J. by use of force. The jury found Anderson and Billups not guilty of the remaining charges.
¶ 10 In postconviction proceedings, Anderson unsuccessfully challenged a DNA surcharge imposed at sentencing. His appellate counsel then filed a notice of appeal and a no-merit report in this court under the procedures set forth in Wis. Stat. Rule E 809.32. Anderson himself filed a document that identified no issues but asked us to review the record. We affirmed. State v. Anderson, No.2010AP2227–CRNM, unpublished op. and order (WI App Apr. 12, 2011) (Anderson I ). Proceeding pro se, Anderson next filed a petition for a writ of habeas corpus alleging his appellate counsel's ineffectiveness. See State v. Knight, 168 Wis.2d 509, 522, 484 N.W.2d 540 (1992). We addressed and rejected some claims and determined that he brought others in the wrong forum. Anderson v. Pugh, No.2012AP1831–W, unpublished slip op. (WI App Nov. 19, 2012) (Anderson II ).
¶ 11 Anderson next filed the postconviction motion underlying this appeal, renewing the claims that we declined to reach in Anderson II. He alleged that Billups's trial testimony incriminated him in the theft of G.J.'s cell phone, that his trial counsel therefore was ineffective for failing to seek relief from prejudicial joinder during trial, and that his postconviction counsel was ineffective in turn for failing to challenge trial counsel's effectiveness and instead pursuing a no-merit appeal. The circuit court concluded that the claims were both procedurally barred and substantively meritless. Anderson appeals.
¶ 12 “We need finality in our litigation.” Escalona–Naranjo, 185 Wis.2d at 185, 517 N.W.2d 157. Therefore, a convicted defendant may not bring postconviction claims under Wis. Stat. § 974.06 if the defendant could have raised the issues in a previous postconviction motion or on direct appeal unless the defendant states a “sufficient reason” for failing to raise those issues. See Escalona–Naranjo, 185 Wis.2d at 181–82, 517 N.W.2d 157. Whether a defendant's claims are barred by Escalona–Naranjo in any particular case presents a question of law that this court reviews de novo. See State v. Tolefree, 209 Wis.2d 421, 424, 563 N.W.2d 175 (Ct.App.1997).
¶ 13 Preliminarily, we note that a postconviction motion seeking relief from a DNA surcharge does not bar a defendant from pursuing claims under Wis. Stat. § 974.06. See State v. Starks, 2013 WI 69, ¶ 46, 349 Wis.2d 274, 833 N.W.2d 146. Further, we determined in Anderson II that Anderson could not pursue the claims he brings now in the forum he selected for that proceeding, so Anderson II does not bar his current litigation. See Anderson II, No.2012AP1831–W, unpublished slip op. at 7. We turn to whether the no-merit proceedings conducted in Anderson I constitute a procedural bar.
¶ 14 When we consider the preclusive effect of no-merit proceedings under Wis. Stat. Rule E 809.32, our review includes an assessment of whether appellate counsel and this court followed the no-merit procedures and whether those procedures warrant confidence in their outcome. See Tillman, 281 Wis.2d 157, ¶ 20, 696 N.W.2d 574. In this case, appellate counsel filed a no-merit report and Anderson had an opportunity to respond. See Anderson I, No.2010AP2227–CRNM, unpublished op. and order at 1. Our opinion in Anderson I reflects that we considered the no-merit report and Anderson's submission, and we independently examined the record. See id. In affirming the convictions, we discussed the sufficiency of the evidence, the circuit court's exercise of sentencing discretion, and the order imposing a DNA surcharge. Id. at 2–3. We concluded that neither those issues nor any others constituted a basis for an arguably meritorious appeal. Id. at 3. Appointed counsel and this court thus followed the no-merit procedures precisely. See Rule 809.32. We therefore have confidence in the proceedings underlying Anderson I. Escalona–Naranjo governs here.
¶ 15 Because Escalona–Naranjo is applicable to this case, Anderson may pursue his current claims only if he presents a sufficient reason for an additional postconviction proceeding. Anderson indicates that he has such a reason, stating that, because he lacks legal training, he did not raise his current claims during the proceedings underlying Anderson I and instead relied on this court and his lawyer to identify potential appellate issues. This reason is insufficient to overcome the procedural bar to serial litigation. Most litigants lack legal training and rely on their lawyers. Moreover, all litigants in no-merit appeals may anticipate receiving the benefit of this court's independent review. See Tillman, 281 Wis.2d 157, ¶ 17, 696 N.W.2d 574. The procedural bar of Escalona–Naranjo would be meaningless if a prisoner could avoid it based on these considerations. Thus, a convicted defendant's decision during the no-merit proceedings to rely on counsel and this court is a reason to apply, not to disregard, the bar. “Failure of a defendant to respond to both a no-merit report and the decision on the no-merit report firms up the case for forfeiture of any issue that could have been raised.” State v. Allen, 2010 WI 89, ¶ 72, 328 Wis.2d 1, 786 N.W.2d 124 (emphasis omitted).
¶ 16 Anderson offers an...
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