State v. Harrell

• Decision Date: 09 September 2014
• Docket Number: No. 2012AP1192.,2012AP1192.
• Citation: 855 N.W.2d 903 (Table),357 Wis.2d 720
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Jacquese Franklin HARRELL, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

357 Wis.2d 720
855 N.W.2d 903 (Table)

STATE of Wisconsin, Plaintiff–Respondent
v.
Jacquese Franklin HARRELL, Defendant–Appellant.

No. 2012AP1192.

Court of Appeals of Wisconsin.

Sept. 9, 2014.

Opinion

¶ 1 PER CURIAM.

Jacquese Franklin Harrell, pro se, appeals an order of the circuit court denying his Wis. Stat. § 974.06 (2011–12)¹ motion without a hearing. Harrell complains that trial counsel was ineffective for not objecting to or directly challenging the State's ballistics expert's testimony. We agree with the circuit court's conclusion that the motion is insufficiently pled, so we affirm.

BACKGROUND

¶ 2 Harrell was charged with one count of first-degree reckless homicide while armed and one count of possession of a firearm by a felon for the shooting death of Victoria Jackson. Part of the case against Harrell was testimony from forensic firearms examiner Kyle Anderson, who testified that recovered bullets came from a gun linked to Harrell and that the bullets could not have been fired from any gun other than the one possessed by Harrell. On May 14, 2008, a jury convicted Harrell on both counts. The circuit court sentenced him to thirty years' initial confinement and fifteen years' extended supervision for the first-degree reckless homicide while armed, and a concurrent ten years' imprisonment for the possession.

¶ 3 Harrell filed a postconviction motion alleging ineffective assistance of trial counsel in certain aspects and challenging the earlier denial of a suppression motion. The circuit court denied the motion without a hearing. Harrell appealed, and we affirmed. See State v. Harrell, 2010 WI App 132, 329 Wis.2d 480, 791 N.W.2d 677, review denied 2010 WI 125, 329 Wis.2d 376, 791 N.W.2d 383.

¶ 4 In February 2012, Harrell filed the underlying postconviction motion under Wis. Stat. § 974.06. He alleged that trial counsel had been “ineffective for failing to object to expert testimony of ballistics match of firearm to projectiles to a degree of scientific certainty.” (Capitalization omitted.) His basis for this contention was “[r]ecent State and federal cases [that] have concluded that firearm toolmark evidence [is] questionable [.]” Harrell also challenged Anderson's qualifications to be an expert. Cognizant of procedural bars, Harrell further asserted that the reason this particular claim of ineffective trial counsel was not raised on appeal was because “he was represented by Attorney Michael S. Holzman on direct appeal, and Holzman could not raise ineffective assistance of appellate counsel on himself” on direct appeal.

¶ 5 The circuit court denied the motion without a hearing on two grounds. First, Harrell had previously filed a pro se motion to vacate a DNA surcharge pursuant to State v. Cherry, 2008 WI App 80, 312 Wis.2d 203, 752 N.W.2d 393. Thus, the circuit court concluded that the subsequent Wis. Stat. § 974.06 motion was barred by State v. Escalona–Naranjo, 185 Wis.2d 168, 178, 517 N.W.2d 157 (1994), because Harrell could have raised his current challenges with that motion. Second, the circuit court determined that Harrell had not set forth a viable ineffective-assistance claim, explaining that it would not have granted a motion to strike Anderson's testimony and that Harrell had not shown a reasonable probability that trial counsel's failure to object to Anderson's testimony affected the outcome of the case.

DISCUSSION

¶ 6 The purpose of Wis. Stat. § 974.06 is to consolidate all claims of error into one motion or appeal; therefore, claims that could have been raised in the defendant's direct appeal or a prior § 974.06 motion are barred absent a sufficient reason. See State v. Balliette, 2011 WI 79, ¶ 36, 336 Wis.2d 358, 805 N.W.2d 334 ; Escalona–Naranjo, 185 Wis.2d at 178, 517 N.W.2d 157. Recently, our supreme court explained that a Cherry motion, standing alone, does not bar a later § 974.06 motion. See State v. Starks, 2013 WI 69, ¶ 47, 349 Wis.2d 274, 833 N.W.2d 146. Thus, the circuit court's invocation of the Escalona–Naranjo procedural bar based on Harrell's prior Cherry motion was inappropriate. However, the circuit court also rejected Harrell's motion as insufficiently pled with respect to the ineffective-trial-counsel argument. We therefore turn our review to the motion's substance.

¶ 7 We first note that Harrell seems to be confused about whom he should call ineffective. He appears to believe that appellate counsel Holzman was ineffective for not claiming on appeal that trial counsel was ineffective for failing to object to Anderson's testimony. Thus, Harrell thinks Holzman's failure on appeal is a “sufficient reason” for not challenging trial counsel's performance earlier because Holzman “could not raise ineffective assistance of appeal counsel on himself.”² However, a claim of ineffective assistance of trial counsel cannot be raised on appeal absent a postconviction motion, see State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 677–78, 556 N.W.2d 136 (Ct.App.1996), and appellate counsel is not ineffective for failing to raise an unpreserved issue, i d. at 678.

¶ 8 Harrell may have meant that...