State v. Anthony, 2015AP431.
| Decision Date | 29 March 2016 |
| Docket Number | No. 2015AP431.,2015AP431. |
| Citation | 879 N.W.2d 808 (Table),369 Wis.2d 72 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. John M. ANTHONY, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
John M. Anthony, pro se, appeals from trial court orders denying his Wis. Stat. § 974.06 (2013–14) motion for postconviction relief and his motion for reconsideration.1 Anthony presents numerous arguments in support of his claim that he should be allowed to withdraw his no-contest pleas.2 We reject his arguments and affirm the orders.
¶ 2 Anthony was charged with one count of first-degree reckless homicide while armed in connection with the 2007 death of Prentice Barnes. The criminal complaint alleged that Anthony was driving a vehicle containing three passengers when he saw Myron McNutt driving a car in the opposite direction. Both men executed u-turns and stopped their vehicles about fifteen feet away from each other. The complaint states that McNutt told a detective that Anthony “extend[ed] his left hand and arm through the open front left driver's window ... [and] fired one shot in the direction of Mr. McNutt with a dark colored semi-automatic pistol.” The shot missed McNutt and struck Barnes, an innocent bystander who was seated in his own vehicle, killing him. Anthony drove away from the scene and was later apprehended.
¶ 3 The complaint further alleged that a man named Youantis Wright told police that he was the front seat passenger in the car Anthony was driving and that he saw Anthony fire the gun out of the window. The complaint also identified a witness who was walking down the street when he saw the two cars execute u-turns and then saw the driver of one car “shoot a gun outside of the driver's side window.” Finally, the complaint asserted that the motive for the shooting was that Anthony was dating McNutt's cousin and that Anthony and McNutt had disagreements about how Anthony treated the woman. The woman told a detective that the two men had threatened each other in the past.
¶ 4 On the day of the scheduled jury trial, Anthony accepted a plea bargain pursuant to which he pled no contest to one count of second-degree reckless homicide while armed and one count of second-degree recklessly endangering safety, which reduced his total exposure from sixty-five years to forty years. The trial court accepted Anthony's no-contest pleas, found him guilty, and scheduled the case for sentencing. Prior to sentencing, Anthony filed a pro se motion seeking to discharge his trial counsel and withdraw his no-contest pleas on grounds that he had been coerced by his trial counsel to accept the plea bargain. Trial counsel was allowed to withdraw and Anthony hired new counsel to represent him. Anthony's new counsel filed a formal motion to withdraw the no-contest pleas.
¶ 5 The trial court conducted a hearing on the motion at which two of Anthony's prior attorneys, Anthony's girlfriend, and Anthony all testified. The trial court found that Anthony had not presented a fair and just reason for plea withdrawal and denied the motion. New counsel was appointed for Anthony. That attorney told the trial court at sentencing that Anthony maintained that he was not the shooter and that it was his front-seat passenger who reached across Anthony and fired the shot at McNutt. The trial court sentenced Anthony to a total of twenty-two years of initial confinement and twelve years of extended supervision.
¶ 6 After sentencing, postconviction counsel was appointed for Anthony. After postconviction counsel informed Anthony that he intended to file a no-merit report, Anthony moved this court to allow him to discharge his counsel and proceed pro se. In response to an order from this court, Anthony submitted a letter to this court indicating that he understood the risks of proceeding pro se and asserting that he was capable of doing so. We granted the motion and extended the time for Anthony to file a postconviction motion.
¶ 7 Anthony's July 2009 postconviction motion was denied and he filed a pro se appeal. In a twenty-page decision, this court addressed Anthony's arguments that the trial court had erroneously exercised its discretion when it denied Anthony's pre-sentencing and post-sentencing motions to withdraw his pleas. See State v. Anthony, No.2009AP2171–CR, unpublished slip op. (WI App Oct. 13, 2010). Our discussion included an analysis of Anthony's claim that he was denied the effective assistance of trial counsel. We rejected Anthony's arguments and affirmed the judgment and order. Anthony filed a petition for review, which the Wisconsin Supreme Court denied on February 7, 2011.
¶ 8 Four years later, Anthony retained counsel, who filed a Wis. Stat. § 974.06 motion for postconviction relief on Anthony's behalf that also included a claim for plea withdrawal based on newly discovered evidence. The motion asserted that Anthony should be allowed to withdraw his no-contest pleas for three primary reasons: (1) Anthony was misinformed about party-to-a-crime liability and the sentence he would receive; (2) trial counsel and postconviction counsel provided ineffective assistance; and (3) newly discovered evidence provided a basis for plea withdrawal. The trial court denied the motion in a written order. The trial court concluded that numerous claims in Anthony's motion were procedurally barred because he failed to raise them in his prior motion for postconviction relief. The trial court also concluded that there was no legal basis to seek relief based on allegations that postconviction counsel provided ineffective assistance by allegedly ignoring meritorious arguments, because Anthony discharged his postconviction counsel before a no-merit report could be filed and chose to represent himself. Finally, the trial court found that the alleged newly discovered evidence—an affidavit from a witness who claims he saw a passenger in Anthony's car shoot the gun—did not provide a basis for plea withdrawal.
¶ 9 Anthony subsequently filed a pro se motion for reconsideration, which the trial court also denied. Anthony now appeals, pro se.
¶ 10 At issue is whether the trial court erroneously exercised its discretion when it denied Anthony's postconviction motion without a hearing. Our supreme court has summarized the applicable legal standards:
Whether a motion alleges sufficient facts that, if true, would entitle a defendant to relief is a question of law that this court reviews de novo. The [trial] court must hold an evidentiary hearing if the defendant's motion raises such facts. However, if the motion does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the [trial] court has the discretion to grant or deny a hearing.
State v. Burton, 2013 WI 61, ¶ 38, 349 Wis.2d 1, 832 N.W.2d 611 (italics added; citations and internal quotation marks omitted).
¶ 11 We begin our analysis with the claims in Anthony's postconviction motion relating to his understanding of his no-contest pleas and the alleged ineffective assistance of trial counsel and postconviction counsel. The trial court found that those claims were procedurally barred, and we agree.
¶ 12 Wisconsin Stat. § 974.06 permits collateral review of a defendant's conviction based on errors of jurisdictional or constitutional dimension. State v. Johnson, 101 Wis.2d 698, 702, 305 N.W.2d 188 (Ct.App.1981). However, it was not designed so that a defendant, upon conviction, could raise some constitutional issues on appeal and strategically wait to raise other constitutional issues a few years later. See State v. Escalona–Naranjo, 185 Wis.2d 168, 185, 517 N.W.2d 157 (1994). Thus, a prisoner who has had a direct appeal or another postconviction motion may not seek collateral review of an issue that was or could have been raised in the earlier proceeding, unless there is a “sufficient reason” for failing to raise it earlier. Id. A claim of ineffective assistance from postconviction counsel may present a “sufficient reason” to overcome the Escalona–Naranjo procedural bar. See, e.g., State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 682, 556 N.W.2d 136 (Ct.App.1996). Whether a procedural bar applies is a question of law. See State v. Tolefree, 209 Wis.2d 421, 424, 563 N.W.2d 175 (Ct.App.1997).
¶ 13 In this case, Anthony had a direct appeal. In his Wis. Stat. § 974.06 motion, the only reason Anthony offered for failing to make his arguments previously was that postconviction counsel performed ineffectively by failing “to see the obvious errors made by trial counsel” and proposing to file a no-merit report, rather than a postconviction motion or merits appeal. The flaw in Anthony's reasoning is that Anthony chose to discharge postconviction counsel and represent himself in postconviction and appellate proceedings. Thus, this court did not have an opportunity to review the no-merit report or conduct the independent review of the record that is required when a no-merit report is filed. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ; Wis. Stat. Rule 809 .32. Under these circumstances, having chosen to discharge postconviction counsel and represent himself in postconviction and appellate proceedings, Anthony cannot cite ineffective assistance of postconviction counsel as grounds for avoiding the Escalona–Naranjo bar.
¶ 14 We have reviewed the numerous motions filed in this case. Anthony's pre-sentencing motion, his 2009 postconviction motion, and his appeal all addressed numerous claims concerning Anthony's no-contest pleas and trial counsel's performance. Anthony's Wis. Stat. § 974.06 motion did not provide a “sufficient reason” for previously failing to raise issues he tried to advance in his § 974.06 motion. Therefore, like the trial court, we conclude that those issues in Anthony's § 974.06 motion are procedurally barred. See Escalona–N...
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