State v. Nash

• Decision Date: 29 March 2016
• Docket Number: No. 2014AP2935.,2014AP2935.
• Citation: 879 N.W.2d 808 (Table),369 Wis.2d 72
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Silkie L. NASH, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

369 Wis.2d 72
879 N.W.2d 808 (Table)

STATE of Wisconsin, Plaintiff–Respondent,
v.
Silkie L. NASH, Defendant–Appellant.

No. 2014AP2935.

Court of Appeals of Wisconsin.

March 29, 2016.

¶ 1 PER CURIAM.

Silkie L. Nash, pro se, appeals a circuit court order that denied his motion for postconviction relief filed pursuant to Wis. Stat. § 974.06 (2013–14).¹ The circuit court concluded that Nash's claims are procedurally barred and substantively meritless. We agree and affirm.

BACKGROUND

¶ 2 The State charged Nash with first-degree intentional homicide following the fatal shooting of another man on July 4th, 1999. A jury found Nash guilty. The circuit court imposed a life sentence and ordered that Nash would be eligible for parole after serving thirty years in prison. See Wis. Stat. § 973.014(1)(b) (1999–2000).

¶ 3 The state public defender appointed Attorney Thomas Erickson to serve as postconviction and appellate counsel for Nash in his appeal of right. With Attorney Erickson's assistance, Nash pursued an appeal challenging the sufficiency of the evidence. We affirmed. See State v. Nash, No.2001AP6–CR, unpublished op. and order (WI App Oct. 8, 1991) (Nash I ).

¶ 4 Proceeding pro se, Nash moved in 2010 for postconviction relief on two grounds. Relying on State v. Cherry, 2008 WI App 80, 312 Wis.2d 203, 752 N.W.2d 393, he sought a refund of a DNA surcharge imposed at sentencing. Relying on the authority of Wis. Stat. § 974.06 (2009–10), he alleged that his trial counsel and postconviction counsel were ineffective by failing to raise the surcharge issue on his behalf. Nash did not prevail on any of the claims.

¶ 5 Nash, again pro se, next filed the postconviction motion underlying this appeal. He alleged that the sentencing court imposed a parole eligibility date in violation of the constitutional prohibition against ex post facto punishment. Specifically, he contended that the statute permitting a circuit court to choose a parole eligibility date for a person serving a life sentence “was a new law passed after the occurrence of the fact or commission of the alleged act of first degree intentional murder committed on July 4, 1999.” His case, he alleged, was governed by a prior law that relied on a statutory formula for determining the parole eligibility date of an inmate serving a life sentence. He further alleged that his trial counsel was ineffective in advising him in matters related to his parole eligibility, and that his appellate counsel was ineffective in turn for failing to challenge both the effectiveness of trial counsel and the sentence Nash received.

¶ 6 The circuit court rejected Nash's claims, concluding they were procedurally barred and lacked merit. Nash appeals.

DISCUSSION

¶ 7 Preliminarily, we examine the State's suggestion that Nash launched his current round of litigation in the wrong court. Nash alleges ineffectiveness on the part of his “appellate counsel,” but, the State argues, challenges to appellate counsel's effectiveness may not be raised in circuit court but must be raised in the court of appeals under State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992). We conclude that Knight does not control here.

¶ 8 Although Nash faults his “appellate counsel” for failing to challenge trial counsel's effectiveness and for failing to challenge the legality of Nash's sentence, “appellate counsel” could not have raised the claims that Nash describes. A defendant who alleges ineffective assistance of trial counsel or who seeks sentence modification must initially raise such claims by postconviction motion in the circuit court. See State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 677–78, 556 N.W.2d 136 (Ct.App.1996) (describing forum for raising claims of ineffective assistance of trial counsel); State v. Walker, 2006 WI 82, ¶ 30, 292 Wis.2d 326, 716 N.W.2d 498 (describing forum for raising sentence modification claims). Thus, despite Nash's references to the errors and omissions of “appellate counsel,” Nash's current litigation in fact raises claims that Attorney Erickson was ineffective in his role as postconviction counsel by failing to bring postconviction motions in the circuit court asserting trial counsel's ineffectiveness and seeking sentence modification. See Rothering, 205 Wis.2d at 679, 556 N.W.2d 136.

¶ 9 Claims of ineffective assistance of counsel should normally be raised in the court where the allegedly ineffective conduct took place. See id. The supreme court has recently confirmed the ongoing vitality of this rule. See State ex rel. Kyles v. Pollard, 2014 WI 38, ¶ 38, 354 Wis.2d 626, 847 N.W.2d 805 (opining that “claims of ineffective assistance of counsel should generally be brought in the forum where the alleged error occurred”). Nash therefore was required to raise his current claims in circuit court unless that court could not provide a remedy for those claims. See id.

¶ 10 A circuit court is fully capable of providing remedies for both ineffective assistance of trial counsel, see State v. Balliette, 2011 WI 79, ¶ 32, 336 Wis.2d 358, 805 N.W.2d 334, and sentencing errors, see Walker, 292 Wis.2d 326, ¶ 30, 716 N.W.2d 498. Accordingly, Nash properly filed his claims in the circuit court, and the circuit court correctly reviewed them.²

¶ 11 The circuit court concluded that Nash's claims are procedurally barred. Whether claims are procedurally barred in any particular case presents a question of law for this court's independent review. See State v. Tolefree, 209 Wis.2d 421, 424, 563 N.W.2d 175 (Ct.App.1997). For the reasons that follow, we agree with the circuit court.

¶ 12 Nash raises constitutional claims in this proceeding: he asserts he did not receive the effective assistance of counsel guaranteed to him under the 6th Amendment of the United States Constitution and that his sentence constitutes an ex post facto punishment prohibited by both article I, section 12 of the Wisconsin Constitution and Article I, Section 10, Clause 1 of the United States Constitution. Because Nash has exhausted his direct appeal rights, Wis. Stat. § 974.06 is the mechanism for him to bring his constitutional claims. See State v. Henley, 2010 WI 97, ¶ 52, 328 Wis.2d 544, 787 N.W.2d 350. Nash's opportunity to bring such claims is limited, however, because “[w]e need finality in our litigation.” See State v. Escalona–Naranjo, 185 Wis.2d 168, 185, 517 N.W.2d 157 (1994). A convicted prisoner such as Nash is procedurally barred from bringing claims under § 974.06 if the prisoner could have raised the claims in a previous postconviction motion or on direct appeal unless the prisoner states a “ ‘sufficient reason’ ” for failing to raise those issues previously. See Escalona–Naranjo, 185 Wis.2d at 181–82, 517 N.W.2d 157 (citing § 974.06(4) ).

¶ 13 Nash claims he has a sufficient reason for serial litigation, namely, Attorney Erickson's allegedly prejudicial failure when litigating Nash I to raise the issues Nash raises now. A lawyer's ineffectiveness in postconviction proceedings can constitute a reason to allow an additional postconviction motion. See Rothering, 205 Wis.2d at 682, 556 N.W.2d 136. In this case, however, Nash pursued a pro se postconviction motion in 2010, long after we resolved the issue he presented with the assistance of Attorney Erickson in Nash I. Attorney Erickson's alleged ineffectiveness in Nash I does not explain why Nash did not pursue his...