State v. Martin
| Decision Date | 27 July 2004 |
| Docket Number | No. 03-3131.,03-3131. |
| Citation | 686 NW 2d 456,276 Wis.2d 310 |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Michael A. Martin, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before Wedemeyer, P.J., Fine and Curley, JJ.
Michael A. Martin appeals, pro se, from orders denying his original and "supplemental" WIS. STAT. § 974.06 (2001-02) motions for sentence modification.1 Martin claims that: (1) the Wisconsin DNA collection statute, WIS. STAT. § 973.047, violates the Fourth Amendment's prohibition against unreasonable searches and seizures; (2) section 973.047 is an ex post facto law; and (3) his trial counsel rendered ineffective assistance when the lawyer allegedly failed to advise Martin on what plea to enter. Martin also alleges that the trial court erred when it concluded that: (1) he could not file a "supplemental" § 974.06 motion after he filed a notice of appeal and the record was sent to this court; and (2) he could not seek sentence modification under § 974.06. We affirm.
¶2 Michael A. Martin was charged with escape from the Milwaukee County House of Correction. See WIS. STAT. § 946.42(3)(a) (1999-2000). According to the complaint, he was released on November 15, 1999, to go to work and did not return. Martin claims in his brief that he voluntarily turned himself in approximately three years later, on June 24, 2003, "to resolve all outstanding criminal matters pending against him in the State of Wisconsin." The State does not dispute this assertion. He pled guilty to escape, and the trial court sentenced him to six months in the House of Correction, consecutive to any other sentence, and ordered him to provide a DNA sample.
¶3 Martin did not file a direct appeal. On October 31, 2003, he filed a pro se WIS. STAT. § 974.06 motion for sentence modification. Martin alleged that his trial counsel rendered ineffective assistance at the combined plea and sentencing hearing when the lawyer did not advise him on which plea to enter, and that the Wisconsin DNA collection statute, WIS. STAT. § 973.047, under which he was required to submit a DNA sample, was unconstitutional. The trial court denied Martin's motion, concluding that his ineffective-assistance claim was "entirely conclusory," and that he did not show prejudice. It also determined that his constitutional challenge to § 973.047 was "entirely without merit."
¶4 Martin filed a pro se notice of appeal on November 14, 2003. On November 26, 2003, he filed a motion requesting the preparation of his transcripts at public expense. The trial court denied the motion, noting that Martin was not entitled to transcripts because his opportunity for pursuing postconviction relief under WIS. STAT. § 809.30 had expired and he had not made a showing of an "arguably meritorious claim for relief."
¶5 After his request for transcripts was denied, Martin filed with this court a "supplemental motion for ex parte provisional remedy of mandamus" on December 9, 2003. (Uppercasing omitted.) In this motion, he appeared to seek review of the trial court's decision to deny him transcripts. We denied Martin's motion on December 18, 2003, and noted that transcripts were not required because Martin's first WIS. STAT. § 974.06 motion was denied without a hearing. We also concluded that because "[t]he [trial] court denied the motion without benefit of transcripts, ... the issue on appeal will be whether the [trial] court properly denied the motion given the record before it and the allegations of the motion."
¶6 In the meantime, Martin filed a "supplemental" WIS. STAT. § 974.06 motion on December 2, 2003, for postconviction relief. In this motion, he requested "the same relief requested in his original Motion for Postconviction Relief." He also claimed that his lawyer was ineffective because the lawyer did not tell Martin of his right to remain silent at sentencing, and that the trial court erred when it denied his first § 974.06 motion without an evidentiary hearing. The trial court denied the motion on December 16, 2003. It again concluded that Martin's claims were entirely conclusory and opined that, after a notice of appeal is filed and the record is sent to the appellate court, a defendant may not file additional § 974.06 motions. The record was sent to us on January 12, 2004.
¶7 Martin attacks the constitutionality of the Wisconsin DNA collection statute, WIS. STAT. § 973.047.2 The constitutionality of a statute is a question of law that we review de novo. State v. Borrell, 167 Wis. 2d 749, 762, 482 N.W.2d 883, 887 (1992). All statutes reach us with the presumption that they are constitutional, and the party challenging the statute has the burden of showing that it is unconstitutional beyond a reasonable doubt. State v. McManus, 152 Wis. 2d 113, 129, 447 N.W.2d 654, 660 (1989).
¶8 Martin first alleges that WIS. STAT. § 973.047 violates the Fourth Amendment's prohibition against unreasonable searches and seizures. He argues that § 973.047 is "facially invalid because it authorizes suspicionless searches with the objective of furthering law enforcement purposes." (Internal quotation marks omitted.) We disagree.
¶9 Generally, a search is not reasonable under the Fourth Amendment unless it is carried out pursuant to a judicial warrant that is supported by probable cause. Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). There are a number of exceptions to this general rule, however, including the special needs exception. See New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring). Under the special needs exception, the warrant and probable cause requirements are replaced with a showing of a neutral plan for execution, a compelling government need, the absence of less restrictive alternatives, and reduced privacy rights. Shelton v. Gudmanson, 934 F. Supp. 1048, 1050 (W.D. Wis. 1996). Special needs searches are conducted for purposes other than solving and punishing crimes, and are deemed constitutionally permissible because they serve "`special needs, beyond the normal need for law enforcement.'" City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (quoted source omitted).
¶10 The issue of whether WIS. STAT. § 973.047 falls within the special needs exception was recently discussed by the United States Court of Appeals for the Seventh Circuit in Green v. Berge, 354 F.3d 675 (7th Cir. 2004). Green began by noting that all fifty states and the federal government have adopted DNA collection and data bank statutes that are similar to Wisconsin's, and that challenges to these statues "have almost uniformly been unsuccessful." Id. at 676. It observed that courts have upheld DNA collection statutes "because the government interest in obtaining reliable DNA identification evidence for storage in a database and possible use in solving past and future crimes outweighs the limited privacy interests that prisoners retain." Id. at 677. It then discussed the special-needs exception and concluded that § 973.047 falls within the exception:
Wisconsin's DNA collection statute is, we think, narrowly drawn, and it serves an important state interest. Those inmates subject to testing because they are in custody, are already "seized," and given that DNA is the most reliable evidence of identification—stronger even than fingerprints or photographs—we see no Fourth Amendment impediments to collecting DNA samples from them pursuant to the Wisconsin law. The Wisconsin law withstands constitutional attack under the firmly entrenched "special needs" doctrine.
Green, 354 F.3d at 679; see also Shelton, 934 F. Supp. at 1051 () (upholding a prior version of § 973.047). We agree. The only authority that Martin cites to the contrary is United States v. Kincade, 345 F.3d 1095 (9th Cir. 2003). Kincade held that forced blood extraction from parolees under the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135a, violated the Fourth Amendment unless the extraction was supported by individualized reasonable suspicion. Kincade, 345 F.3d at 1104. Kincade was vacated, however, when the Ninth Circuit ordered an en banc consideration. United States v. Kincade, 354 F.3d 1000 (9th Cir. 2004). We agree with the rationale of Green, and Martin has not shown, beyond a reasonable doubt, that § 973.047 violates the Fourth Amendment.
¶11 Second, Martin alleges that WIS. STAT. § 973.047, as it was applied to him, violates the constitutional provisions against ex post facto laws.3 The State argues that Martin waived this issue on appeal because he did not present it to the trial court. We disagree with the State. Generally, an appellate court will not review an issue that is raised for the first time on appeal. Wirth v. Ehly, 93 Wis. 2d 433, 443-444, 287 N.W.2d 140, 145 (1980). We may, however, review new arguments on an issue that has been raised before the trial court. See State v. Holland Plastics Co., 111 Wis. 2d 497, 505, 331 N.W.2d 320, 324 (1983). Martin raised this issue before the trial court when he claimed that § 973.047 was unconstitutional. Moreover, we give pro se litigants who are incarcerated some leeway. Waushara County v. Graf, 166 Wis. 2d 442, 451-452, 480 N.W.2d 16, 19-20 (1992). Thus, we now turn to the issue of whether § 973.047 is an ex post facto law.
¶12 Martin claims that the application of WIS. STAT. § 973.047 retroactively punishes him because it became effective after he committed his crime. He is correct in his assertion that the statute, as amended, became effective after he committed his crime. See 1999 Wis. Act 9, §§ 2288i, 3202k; WIS. STAT. § 165.76(1). Section 973.047,...
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