State v. Schultz, 90-2786-CR
| Decision Date | 26 March 1992 |
| Docket Number | No. 90-2786-CR,90-2786-CR |
| Citation | 485 N.W.2d 838,168 Wis.2d 357 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. James R. SCHULTZ, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from an order of the circuit court for Green county, William D. Johnston, Judge.
Before EICH, C.J., and DYKMAN and SUNDBY, JJ.
James R. Schultz appeals from an order quashing his petition for a writ of error coram nobis ("writ"). The issues are whether this writ is appropriate to remedy the alleged error committed when a subsequent commissioner issued an arrest warrant on the same complaint that a previous commissioner denied; and whether our disposition of this issue on direct appeal constitutes law of the case. We conclude this writ is not the appropriate remedy and we decline to reconsider our waiver decision based on the law of the case. Therefore, we affirm.
On November 19, 1985, police found Schultz and his wife nonresponsive on their garage floor. Notwithstanding the exhaust odor, there were signs of a struggle. The Schultzes were taken to the hospital. Nancy M. Schultz was pronounced dead on arrival and Schultz was treated for his injuries. The next day police questioned Schultz and on November 21, 1985, the state requested a warrant for Schultz's arrest. Initially, Circuit Court Commissioner John K. Callahan denied the request for lack of probable cause. Notwithstanding this denial, Circuit Court Commissioner Randal J. Elmer issued an arrest warrant shortly thereafter, based on the identical criminal complaint. On April 21, 1986, Schultz was convicted of the first-degree murder of his wife.
Schultz's appellate counsel discovered the denial after Schultz's postconviction hearing. Schultz claims that had he or his trial counsel known of the denial, they would have attacked the credibility of the investigating officers and the district attorney. Schultz raised this issue on direct appeal, but we declined to consider it based on waiver in the circuit court. State v. Schultz, 148 Wis.2d 370, 372 n. 1, 435 N.W.2d 305, 306 n. 1 (Ct.App.1988), aff'd on other grounds, 152 Wis.2d 408, 448 N.W.2d 424 (1989).
On July 9, 1990, Schultz petitioned the circuit court for a writ. The circuit court quashed the petition because this writ was an inappropriate remedy and because it was bound by our decision on direct appeal.
A writ of error coram nobis is limited to factual errors outside the record which are unknown to the circuit court and "which if known would have prevented the entry of judgment." State v. Kanieski, 30 Wis.2d 573, 576, 141 N.W.2d 196, 198 (1966). On appeal, we will reverse only if the circuit court abused its discretion. State v. Dingman, 239 Wis. 188, 192, 300 N.W. 244, 246 (1941).
Contrary to Schultz's contention, the previous denial of an arrest warrant was filed with the Green County Circuit Court on November 22, 1985. Therefore, the previous denial was in the record. A precondition to granting a petition for this writ is that the previous denial was unknown to the circuit court, not that it was unknown to the litigants. Kanieski, 30 Wis.2d at 576, 141 N.W.2d at 198. 1 We conclude, therefore, that this writ is an inappropriate remedy and the petition was properly quashed.
Schultz further argues the state's failure to disclose the previous denial violated his constitutional rights under Brady v. Maryland, 373 U.S. 83 (1963). Because the previous denial was in the record, there was no failure to disclose under Brady.
Schultz also is precluded from our reviewing this issue because on direct appeal we concluded that he did not preserve his jurisdictional argument for review. 2 See Schultz, 148 Wis.2d at 372 n. 1, 435 N.W.2d at 306 n. 1. We refuse to review this issue based on law of the case. United States v. Mazak, 789 F.2d 580, 581 (7th Cir.1986) ). Although this is not an inflexible doctrine, we apply it to the instant case.
Schultz further contends that because he did not personally waive the denial issue, he may raise it here. Sections 971.31(2) and (5)(c), Stats., do not require the defendant's personal waiver. 3
Schultz states that he did not discover the previous denial until his case was on direct appeal. Because the denial was in the record, his "actual discovery" is not relevant. Further, he was represented by counsel at trial, during postconviction proceedings, and on direct appeal. 4 He cannot circumvent waiver by ignoring the rule that he is bound by counsel's decisions. See State v. Wilkens, 159 Wis.2d 618, 622-23, 465 N.W.2d 206, 208 (Ct.App.1990). ("When a defendant accepts counsel in the defense of his case, the decision to assert or waive certain constitutional rights is delegated to that attorney.") (Footnote omitted.) We reject Schultz's personal waiver argument here. 5
By the Court.--Order affirmed.
This opinion will not be published. See Rule 809.23(1)(b)5, Stats.
* Petition for Review Filed
1 Schultz admits in his brief-in-chief that a writ of...
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