State v. Escalona-Naranjo, ESCALONA-NARANJ

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtGESKE; This is an appeal from an order of the Dane County Circuit Court, Robert R. Pekowsky; SHIRLEY S. ABRAHAMSON
Citation185 Wis.2d 168,517 N.W.2d 157
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Barbaroefendant-Appellant. d
Decision Date22 June 1994
Docket NumberNo. 92-0846,ESCALONA-NARANJ,D

Page 157

517 N.W.2d 157
185 Wis.2d 168
STATE of Wisconsin, Plaintiff-Respondent,
v.
Barbaro ESCALONA-NARANJO, Defendant-Appellant. d
No. 92-0846.
Supreme Court of Wisconsin.
Argued Feb. 2, 1994.
Decided June 22, 1994.

For the plaintiff-respondent the cause was argued by Thomas J. Balistreri, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.

[185 Wis.2d 170] GESKE, Justice.

This is an appeal from an order of the Dane County Circuit Court, Robert R. Pekowsky, Circuit Judge, in a proceeding under sec. 974.06, Stats., 1 to vacate a judgment of conviction or, in [185 Wis.2d 171] the alternative, order a new

Page 158

trial for defendant Barbaro Escalona-Naranjo (Escalona-Naranjo). Escalona-Naranjo argued that his conviction resulted from a denial of his state and federal right to effective assistance of counsel under art. I, secs. 7 and 8 of the Wisconsin Constitution 2 and the sixth and fourteenth [185 Wis.2d 172] amendments to the United States Constitution. 3 By order dated March 9, 1992, the court dismissed Escalona-Naranjo's amended sec. 974.06 motion. The court concluded that each of the issues raised in Escalona-Naranjo's motion had been raised in initial postconviction motions to the circuit court, and on appeal. As such, a motion under sec. 974.06 could not be used to review issues which were or could have been litigated on direct appeal.

The court of appeals certified Escalona-Naranjo's appeal from the circuit court decision to this court, pursuant to sec. (Rule) 809.61, Stats.

[185 Wis.2d 173] The issue in this case is whether Escalona-Naranjo is prohibited from raising his claim

Page 159

of ineffective assistance of trial counsel in a postconviction motion under sec. 974.06, Stats., if such a claim could have been raised in a previously filed sec. 974.02 motion and/or on direct appeal. We conclude that Escalona-Naranjo could have raised the ineffective assistance of trial counsel claim in postconviction motions under sec. 974.02, Stats. 4 Therefore, we hold that Escalona-Naranjo is precluded from raising that issue in a sec. 974.06 motion. We now affirm the order of the circuit court dismissing Escalona-Naranjo's sec. 974.06 motion.

In December, 1984, a criminal complaint was filed, charging Escalona-Naranjo with two counts of possession of controlled substances with intent to deliver, in violation of secs. 161.14(4)(n), 161.14(4)(t), and 161.41(1m)(b), Stats. 5 Escalona-Naranjo was convicted of both counts following a jury trial in February,[185 Wis.2d 174] 1986. Though the initial date for sentencing was to occur in May, 1986, trial counsel filed a motion to vacate the conviction and requested an inquiry as to Escalona-Naranjo's mental condition. A competency hearing was held in August of that year, wherein Escalona-Naranjo was determined to be competent for sentencing.

Following Escalona-Naranjo's sentencing in September, 1986, defense counsel filed a notice of intent to seek postconviction relief. See sec. 809.30(2)(b), Stats. Pursuant to sec. 974.02, Stats., postconviction motions for a new trial, competency redetermination, and resentencing were filed in December, 1986.

In July, 1987, the circuit court issued a memorandum decision denying Escalona-Naranjo's motion to vacate the judgment and order a new trial. The court stated that the "defendant has failed to show the existence of error sufficient to justify an order vacating the[185 Wis.2d 175] judgment and granting a new trial. Nor has defendant shown that the cumulative impact of the challenged evidentiary decisions was sufficiently prejudicial to require grant of defendant's motion."

After the court of appeals affirmed the judgment of the circuit court, Escalona-Naranjo filed a sec. 974.06, Stats., motion in July, 1990. An amended motion was filed in February, 1991. Escalona-Naranjo claimed relief because his conviction resulted from a denial of his right to effective assistance of trial counsel under art. I, secs. 7 and 8 of the Wisconsin Constitution and the Sixth and Fourteenth Amendments of the United States Constitution. Specifically, Escalona-Naranjo argued that certain evidence and testimony admitted at trial should have been objected to by trial counsel and that the failure to object resulted in a waiver of the right to appeal on these issues.

The state, in its motion to summarily dismiss Escalona-Naranjo's sec. 974.06 motion,

Page 160

argued that all of the alleged errors claimed had been previously raised in the 1986 postconviction motion and on appeal. The state contended that merely rephrasing the issues submitted on appeal would not constitute the basis for a sec. 974.06 motion.

The circuit court adopted the reasoning of the state and dismissed the sec. 974.06 motion. Escalona-Naranjo sought further review by the court of appeals. Certifying the case to this court, the court of appeals stated that even though Escalona-Naranjo waived certain evidentiary issues because he did not object at trial, the sec. 974.06 motion may have raised new issues not decided on direct appeal.

This case involves the construction of sec. 974.06, Stats. A question of statutory construction is a question [185 Wis.2d 176] of law which this court decides independently and without deference to the reasoning of the lower courts. Pulsfus Farms v. Town of Leeds, 149 Wis.2d 797, 803-04, 440 N.W.2d 329 (1989) (citing Sacotte v. Ideal-Werk Krug & Priester, 121 Wis.2d 401, 405, 359 N.W.2d 393 (1984), and Ball v. District No. 4, Area Board, 117 Wis.2d 529, 537, 345 N.W.2d 389 (1984)). See also City of Muskego v. Godec, 167 Wis.2d 536, 545, 482 N.W.2d 79 (1992) (with the construction of a statute, an appellate court is not bound by a trial court's conclusions of law and decides the matter de novo ).

PURPOSE OF SECTION 974.06, STATS.

With the exception of subsection (4), sec. 974.06 6 is a direct adaptation of 28 U.S.C. sec. 2255. 7 The federal statute attempted to provide "an expeditious remedy for correcting erroneous sentences without resorting to habeas corpus." Angela B. Bartell, Comment, Wisconsin Post Conviction Remedies--Habeas Corpus: Past, Present and Future, 1970 Wis.L.Rev. 1145, 1152 [hereinafter Wisconsin Post Conviction Remedies ]. See also U.S.Code Congr.Serv. 1248 (1949) (Act of May 24, 1949). In fact, as applied in Wisconsin, the postconviction motion procedure under sec. 974.06 was "designed to replace habeas corpus as the primary method in which a defendant can attack his conviction after the time for appeal has expired." Howard B. Eisenberg, Post-Conviction Remedies in the 1970's, 56 Marq.L.Rev. 69, 79 (1972).

In 1972, this court stated that

185 Wis.2d 177] [t]he postconviction motion under sec. 974.06, Stats., is not a substitute for a motion for a new trial. A sec. 974.06 motion can be made only after the defendant has exhausted his direct remedies which consist of a motion for a new trial and appeal. A sec. 974.06 motion is limited in scope to matters of jurisdiction or of constitutional dimensions. The motion must not be used to raise issues disposed of by a previous appeal

Peterson v. State, 54 Wis.2d 370, 381, 195 N.W.2d 837 (1972) (footnote omitted). See also Nichols v. State, 73 Wis.2d 90, 241 N.W.2d 877 (1976); Sass v. State, 63 Wis.2d 92, 216 N.W.2d 22 (1974).

By contrast, the language of subsection (4) of sec. 974.06 was adapted from the Uniform Post-Conviction Procedure Act. See 11 U.L.A. 477 (1974). First approved in 1955 by the National Conference of Commissioners on Uniform State Laws and the American Bar Association, it was revised by the same bodies in 1966. The primary purpose of the act was to compel a prisoner to raise all grounds regarding postconviction relief in his or her original, supplemental or amended motion, thereby cutting off successive frivolous motions. 8 See sec. 8 of the uniform act

Page 161

[Waiver of [185 Wis.2d 178] Claims]; see also Wisconsin Post Conviction Remedies, 1970 Wis.L.Rev. at 1153. In 1980, the new Post-Conviction Procedure Act was approved and superseded the 1966 version. The substance of sec. 8 is now embodied in sec. 12 [Affirmative Defenses-Res Judicata-Misuse of Process].

Though Wisconsin did not formally adopt the Uniform Post-Conviction Procedure Act, the purpose underlying the original sec. 8 was incorporated into sec. 974.06(4). Contrary to the assertion of the dissent in this case, the purpose of sec. 974.06(4) is clear: to require criminal defendants to consolidate all their postconviction claims into one motion or appeal. 9

ESCALONA-NARANJO'S SECTION 974.06

MOTION WAS PROPERLY DISMISSED

Escalona-Naranjo argues that neither the circuit court nor the court of appeals directly addressed any claim that trial counsel's failure to object to the admission of certain evidence or testimony at trial resulted in ineffective assistance of counsel. As a result, he contends that the claim of ineffective assistance of trial counsel in the sec. 974.06 motion should not be precluded[185 Wis.2d 179] because it is being raised now for the first time and is a distinct issue from those previously considered. In his sec. 974.02 motion for postconviction relief, requesting a new trial, Escalona-Naranjo alleged that he was deprived of his due process right to a fair trial, in part, for the following reasons:

(1) The court improperly admitted testimony regarding a search warrant, which evidence was overly prejudicial to the defendant and consisted of impermissible hearsay;

(2) The court improperly permitted substantial inadmissible hearsay to be used against the defendant;

(3) The court permitted the introduction of substantial evidence of other crimes which were not relevant and which were prejudicial to the defendant;

(4) The court improperly admitted the testimony of police officers regarding matters beyond their competence; and

(5) The court improperly permitted the introduction of extrinsic evidence of the credibility of a confidential...

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886 practice notes
  • State v. Romero-Georgana, No. 2012AP55.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 23, 2014
    ...if that claim “could have been raised in a previously filed sec. 974.02 motion and/or on direct appeal.” State v. Escalona–Naranjo, 185 Wis.2d 168, 173, 517 N.W.2d 157 (1994). Consequently, the defendant's claim is barred. ¶ 6 Third, even if the § 974.06 motion were not barred on “sufficien......
  • Reynolds v. Hepp, No. 16-3430
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 30, 2018
    ...Reynolds’s claim for ineffective appellate counsel was conclusory and, therefore, procedurally barred under State v. Escalona-Naranjo , 185 Wis.2d 168, 517 N.W.2d 157 (1994). In the alternative, the court found that the jury instructions were sufficient to support a conviction under Wiscons......
  • Sergent v. Douma, 12-cv-810-slc
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • January 26, 2016
    ...or in a postconviction motion under Wis.Page 25 Stat § 974.02, and was therefore procedurally barred under State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994). See State v. Sergent, 2013AP193-CR. Escalona-Naranjo holds that all issues not raised in a previous postconvicti......
  • Lindh v. Murphy, No. 95-3608
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 12, 1996
    ...may wage a collateral attack in Wisconsin even after the state's Supreme Court has addressed the merits, see State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994), but Lindh does not qualify for this exception--and, if he does, the state courts remain open to him. Lindh contends ......
  • Request a trial to view additional results
883 cases
  • State v. Romero-Georgana, No. 2012AP55.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 23, 2014
    ...if that claim “could have been raised in a previously filed sec. 974.02 motion and/or on direct appeal.” State v. Escalona–Naranjo, 185 Wis.2d 168, 173, 517 N.W.2d 157 (1994). Consequently, the defendant's claim is barred. ¶ 6 Third, even if the § 974.06 motion were not barred on “sufficien......
  • Reynolds v. Hepp, No. 16-3430
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 30, 2018
    ...Reynolds’s claim for ineffective appellate counsel was conclusory and, therefore, procedurally barred under State v. Escalona-Naranjo , 185 Wis.2d 168, 517 N.W.2d 157 (1994). In the alternative, the court found that the jury instructions were sufficient to support a conviction under Wiscons......
  • Sergent v. Douma, 12-cv-810-slc
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • January 26, 2016
    ...or in a postconviction motion under Wis.Page 25 Stat § 974.02, and was therefore procedurally barred under State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994). See State v. Sergent, 2013AP193-CR. Escalona-Naranjo holds that all issues not raised in a previous postconvicti......
  • Lindh v. Murphy, No. 95-3608
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 12, 1996
    ...may wage a collateral attack in Wisconsin even after the state's Supreme Court has addressed the merits, see State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994), but Lindh does not qualify for this exception--and, if he does, the state courts remain open to him. Lindh contends ......
  • Request a trial to view additional results

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