State v. Dietzen
| Decision Date | 08 February 1996 |
| Docket Number | No. 95-1071,95-1071 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Charles B. DIETZEN, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from an order of the circuit court for Waupaca County: JOHN P. HOFFMAN, Judge. Affirmed.
Before EICH, C.J., GARTZKE, P.J., and DYKMAN, J.
Charles B. Dietzen appeals from a trial court order denying his petition for writ of error coram nobis. Dietzen makes the following arguments on appeal: (1) the trial court erroneously exercised its discretion in denying the petition; (2) the trial court erroneously exercised its discretion when it failed to hold an evidentiary hearing on the coram nobis petition; and (3) because the trial court judge was biased, we should exercise our discretionary right to reverse under § 752.35, Stats. We reject Dietzen's claims and, therefore, affirm.
In April 1990, Dietzen was convicted of one count of theft, contrary to § 943.20(1)(e), Stats., after entering a no contest plea. He later appealed, raising numerous issues including whether several misdemeanor theft charges could be aggregated into a single felony charge and whether the prosecutor acted vindictively when it issued a third criminal complaint. We affirmed Dietzen's conviction in August 1991. See State v. Dietzen, 164 Wis.2d 205, 474 N.W.2d 753 (Ct.App.1991).
In August 1994, Dietzen filed a petition for writ of error coram nobis. He argued that the judgment of conviction should be vacated because the prosecutor acted vindictively and deceived Dietzen and the trial court. He asserted that the prosecutor improperly aggregated three misdemeanor charges into a felony charge. He also raised numerous constitutional issues. After a telephone conference, the court denied Dietzen's petition, concluding that he failed to allege a factual error in the petition or supporting affidavit sufficient to warrant the writ. Dietzen appeals.
The writ of error coram nobis has a limited scope. Jessen v. State, 95 Wis.2d 207, 213, 290 N.W.2d 685, 688 (1980). Whether the writ should be granted rests within the sound discretion of the trial court. Id. The writ is intended to give the court an opportunity to correct its own record of an error of fact. Id. In order to constitute grounds for the issuance of the writ, a defendant must show the existence of an error of fact which was unknown at the time of trial and that, but for the error, the court would have never entered the judgment. Id. The writ is intended to secure relief from the court for factual errors and to correct the record when no other remedy exists. State v. Kanieski, 30 Wis.2d 573, 576, 141 N.W.2d 196, 198 (1966). 1 A writ of habeas corpus is the proper remedy to attack a conviction obtained in violation of a defendant's constitutional rights. Jessen, 95 Wis.2d at 214, 290 N.W.2d at 688.
Dietzen alleges several errors including vindictive prosecution and prosecutorial misconduct. He first asserts that the prosecutor filed an amended complaint aggregating five misdemeanors into three felonies. He argues that the prosecutor did not have the authority to aggregate the charges in this manner and claims that this complaint mysteriously disappeared from the record. He then asserts that the prosecutor again amended the complaint, charging him with one felony and two misdemeanors. He later pleaded no contest because he feared further vindictiveness.
But these very same issues were decided adversely to Dietzen by this court on direct appeal. See State v. Dietzen, 164 Wis.2d 205, 474 N.W.2d 753 (Ct.App.1991). With respect to the vindictiveness claim, we concluded that because Dietzen never raised this argument before the trial court, he waived it. Id. at 212, 474 N.W.2d at 755. We also added that there was nothing in the record indicating that such a complaint was ever filed and that the only complaint of record was the one charging Dietzen with a single felony count. Id., 474 N.W.2d at 755-56. We stated that Dietzen was responsible for seeing that the document, if it existed, was made part of the record. Id., 474 N.W.2d at 756.
Moreover, these errors, and an ineffective assistance of trial and appellate counsel claim, raise constitutional issues which are the subject of habeas corpus and not coram nobis. Thus, the trial court properly dismissed the petition because Dietzen failed to allege any mistakes of fact which, if known to the court, would have prevented the entry of the judgment.
Dietzen next argues that he should have been afforded a hearing before the trial court dismissed his coram nobis petition. We disagree. A court has no duty to issue a writ of error coram nobis and to try issues unless it is satisfied that the petition, on its face, shows sufficient grounds for the issuance of the writ and the necessity for a hearing. Houston v. State, 7 Wis.2d 348, 353, 96 N.W.2d 343, 346 (1959).
The trial court asked Dietzen what information, other than what was...
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