State v. Lo

Decision Date11 July 2003
Docket NumberNo. 01-0843.,01-0843.
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Anou Lo, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petitioner there were briefs by Robert R. Henak and Henak Law Office, S.C., Milwaukee, and oral argument by Robert R. Henak.

For the plaintiff-respondent the cause was argued by Sally L. Wellman, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

An amicus curiae brief was filed by Joseph N. Ehmann, first assistant state public defender, and William J. Tyroler, assistant state public defender, on behalf of the Office of the State Public Defender.

An amicus curiae brief was filed by Meredith J. Ross and Walter J. Dickey, Madison, on behalf of the Frank J. Remington Center.


This is a review of an unpublished decision of the court of appeals affirming an order of the Circuit Court for La Crosse County, Ramona A. Gonzalez, Judge. State v. Anou Lo, No. 01-0843, unpublished slip op. (Wis. Ct. App. Dec. 28, 2001).

¶ 2. The petitioner, Anou Lo, asks that we overrule our decision in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994) (Escalona), in which we held that any claim that could have been raised on direct appeal or in a previous Wis. Stat. § 974.06 (1999-2000)1 postconviction motion is barred from being raised in a subsequent § 974.06 postconviction motion, absent a sufficient reason. Lo also requests that we retroactively apply our decision in State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413, and thereby grant him a new trial so that a jury can be properly instructed on the elements of imperfect self-defense.

¶ 3. This case raises the question of whether our ruling in Escalona achieves a desired finality in the criminal appeals process and does so in a fair and efficient manner. We are mindful of the important interests and values articulated by counsel and of the practical difficulties identified by Judge Deininger in his concurring opinion. Lo, No. 01-0843, unpublished slip op., ¶¶ 56-58 (Deininger, J., concurring).

¶ 4. Having considered the arguments, we decline to overrule our holding in Escalona. We continue to believe that it represents the correct interpretation of Wis. Stat. § 974.06. With the understanding that Escalona is the law, the court will seek opportunities to work with the State and the defense bar to fashion remedies that fairly address the problems identified by the court of appeals.

¶ 5. The petitioner contends that our decision in Head should be applied retroactively. For the reasons set forth in Part IV of this opinion, we hold that Head should not be applied retroactively to litigants in collateral proceedings.


¶ 6. Some of the facts of this case are in dispute. In the summer of 1995, members of TMC, a street gang in La Crosse, were involved in various shootings directed at friends and acquaintances of Anou Lo.2 As a result, one of Lo's acquaintances gave him a handgun for protection.

¶ 7. On July 6, 1995, Lo met friends with the intention of accompanying them to Trane Park. While the group was in transit, Lo learned that several TMC members had gathered at Hood Park, and he asked his group to go there. At Hood Park, Koua Vang, a member of TMC, and Hue Lee, a friend of Vang, were playing marbles with some young children. Hue Lee observed the car in which Lo was a passenger circle twice around the park. Then Lo entered the park with one of his friends, while the driver of the car and other passengers stayed behind.

¶ 8. In the park, Lo yelled at Vang from a distance of 40 to 50 feet. An argument developed. Lo confronted Vang about rumors that the TMCs were out to get Lo's stepbrother. Vang claims that, during the argument, Lo asked him if he wanted to die. Vang became excited and Hue Lee tried to calm him down. In time, Lo and Vang decided to back off and go their separate ways.

¶ 9. Lo claims that as he was attempting to leave the park, he saw Vang try to grab something underneath his shirt, from the front waistband of his pants. Thinking that Vang was trying to get a gun, Lo drew his own gun and fired it in Vang's direction four times. Lo and his friend then ran away.

¶ 10. Vang was shot in the back of his right arm. At the time of the shooting, he was in fact carrying a gun in the front of his pants, but he denied reaching for it, explaining that he was simply putting marbles in his pocket.

¶ 11. Lo was 16 years old at the time of the shooting. He was waived into criminal court and tried as an adult. On January 12, 1996, a jury found Lo guilty of attempted first-degree intentional homicide while armed and first-degree reckless endangerment while armed. The circuit court sentenced Lo on February 26, 1996, to consecutive terms of 20 years incarceration on the attempted homicide conviction and 9 years on the reckless endangerment conviction.

¶ 12. After his conviction, Lo acquired new counsel and filed postconviction motions pursuant to Wis. Stat. § 974.02 and Wis. Stat. § (Rule) 809.30. In one of these motions, he challenged the effectiveness of his trial counsel. After an evidentiary hearing, Lo's motions were denied. Lo appealed two claims that he had raised in postconviction motions, including the claim of ineffective assistance of counsel. The court of appeals affirmed the conviction and the denial of postconviction relief. State v. Lo, No. 97-0023-CR, unpublished slip op. (Wis. Ct. App. June 25, 1998). Lo then made an unsuccessful pro se attempt at federal habeas relief.

¶ 13. On March 6, 2000, Lo, again pro se, requested an order from the circuit court asking for information he needed to file a § 974.06 motion. In a Memorandum Decision and Order dated May 16, 2000, the circuit court denied the request on grounds that Lo could get the information from his prior attorneys. On January 17, 2001, Lo made a pro se § 974.06 motion, which was denied by the circuit court because the claims were barred pursuant to Escalona in that the issues could and should have been raised on direct appeal.3 The court of appeals affirmed the circuit court decision. In a concurring opinion, Judge Deininger raised questions whether Escalona's construction of § 974.06(4) had achieved its goal of bringing finality to postconviction litigation. Lo, No. 01-0843, unpublished slip op., ¶¶ 55-58.


[1, 2]

¶ 14. Once again this court is called upon to review the proper construction of § 974.06(4). The construction of a statute is a question of law and is reviewed de novo. Escalona, 185 Wis. 2d at 175-76. Our goal is to discern and give effect to the intent of the legislature. County of Jefferson v. Renz, 231 Wis. 2d 293, 301, 603 N.W.2d 541 (1999).


¶ 15. Although our decision in Escalona discussed the origins and purpose of § 974.06, see Escalona, 185 Wis. 2d at 176-78, 181-82,

we take this opportunity to augment that discussion and reinforce our holding that claims of error that could have been raised on direct appeal or in a previous § 974.06 motion are barred from being raised in a subsequent § 974.06 motion, absent a showing of a sufficient reason.

¶ 16. Section 974.06 was created by the Wisconsin legislature in 1969 as the first uniform postconviction procedure in the state's history.4 Heather M. Hunt, Note, State v. Escalona-Naranjo: A Limitation on Criminal Appeals in Wisconsin?, 1997 Wis. L. Rev. 207, 210. The decision to institute a uniform postconviction remedy was made by the Criminal Rules Committee of the Judicial Council. Id. at 211 The decision was influenced by a letter from Justice Myron L. Gordon, who expressed dissatisfaction over the time that the Wisconsin Supreme Court spent reviewing habeas corpus matters and recommended that circuit courts handle such petitions. Id. (citing Minutes of Meeting of the Judicial Council 2 (June 16, 1967)).

¶ 17. In establishing a uniform postconviction remedy, the Criminal Rules Committee set forth a procedure "under sec. 974.06 [that] 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.'" Escalona, 185 Wis. 2d at 176 (citing Howard B. Eisenberg, Post-Conviction Remedies in the 1970's, 56 Marq. L. Rev. 69, 79 (1972)). Section 974.06 was modeled after 28 U.S.C. § 2255 (2000).5 However, subsection (4) was taken from section 8 of the 1966 Uniform Post-Conviction Procedure Act (1966 UPCPA or 1966 Uniform Act). Hunt, supra, at 211. Section 974.06(4) reads as follows:

All grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended motion.

Wis. Stat. § 974.06(4).

¶ 18. There is no dispute that the language of § 974.06(4) was adapted from section 8 [Waiver of or Failure to Assert Claims] of the 1966 UPCPA, see Unif. Post-Conviction Procedure Act § 8, 11A U.L.A. 375 (Master ed. 1995), even though the UPCPA was not adopted in its entirety by the Wisconsin legislature. Escalona, 185 Wis. 2d at 177-78. The comment to § 974.06(4) acknowledges that subsection (4) came from the UPCPA and asserts that it was "designed to compel a prisoner to raise all questions available to him in one motion." Comment to Wis. Stat. Ann. § 974.06 (West Supp. 1998).

¶ 19. The stated legislative intent is consistent with the purpose of the 1966 UPCPA. The UPCPA was drafted to curtail the explosion of federal habeas corpus...

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