*1 Plaintiff-Respondent, Wisconsin, State Defendant-Appellant.† Barbaro Escalona-Naranjo, Supreme Court 2, 1994. February argument Oral 92-0846. No. Decided 22, 1994. June (Also 157.) reported in 517 N.W.2d 21,1994. September reconsideration denied † Motion *2 For there was a brief defendant-appellant by Gerardo H. Gonzalez and Gonzalez & Saggio, Milwau- John A. Birdsall. oral argument kee and by For the the cause was plaintiff-respondent argued Balistreri, Thomas J. assistant by attorney general, E. Doyle, attorney brief was James with whom on general. from an GESKE, J. This is an appeal P.
JANINE R. Court, Circuit Robert County the Dane order of under in a Judge, proceeding Circuit Pekowsky, inor, Stats.,1 to conviction 974.06, judgment vacate 974.06, Stats., reads as follows: Section (1) procedure. the time for After 974.06 Postconviction provided expired, remedy in s. 974.02 has or person custody con- of a court or a under sentence placed probation program under volunteers in s. victed and with a claiming right upon ground to be that the released 973.11 imposed the U.S. sentence was in violation of constitution state, juris- or laws of this that the was without constitution sentence, impose such or that the sentence was excess diction to subject law of maximum authorized or is otherwise collat- attack, may imposed sentence eral move the court which vacate, aside or the sentence. set correct part original A motion relief criminal for such may action, separate proceeding be made at time. is not *3 supreme may prescribe of the The court the form motion. (3) motion and the files and records of the action Unless the relief, conclusively person to the show that the is entitled no shall: (a) upon copy Cause a of the notice to be served the district pre- attorney response time who shall file a written within the by scribed the court. (b) necessary appears If that counsel is if the defen- it and indigent, person appears dant or to be refer the to the claims state public indigency appointment for defender determination and under ch. 977. counsel (c) hearing. prompt Grant a (d) findings Determine the issues and make of fact and con- judgment If finds clusions of law. the court that the was rendered imposed jurisdiction, the not without or that sentence was author- open attack, by ized law or otherwise to collateral or that there infringement rights has such a denial or of the been person judgment as to render the the vulnerable collateral attack, judgment the court shall vacate and the aside and set shall person discharge grant the him or her or a new or resentence trial may appear appropriate. or correct the sentence as (4) grounds person All for relief available under this original, supplemental in his or section must raised her or order a new trial for defendant alternative, (Escalona-Naranjo). Escalona-Naranjo Bárbaro Escalona-Naranjo argued conviction resulted that his right to effective of his state and federal from a denial I, art. secs. 7 and 8 of the of counsel under assistance the sixth and fourteenth Constitution2 and Wisconsin raised, adjudicated Any ground finally or not so amended motion. intelligently proceed- knowingly, voluntarily in the waived or ing the conviction or sentence or in other that resulted in may person not proceeding has taken to secure relief be the motion, ground subsequent for unless the court finds a basis for a or which for sufficient reason was not asserted was relief asserted original, supplemental inadequately or amended raised motion. (5) may A court entertain and determine such motion with- hearing. requiring production at the out may be heard under s. 807.13. (6) Proceedings shall be considered civil in under this section nature, proof upon person. and the burden of shall be (7) appeal may An be taken from the order entered on the judgment. motion as from a final petition corpus seeking A for a or an action writ habeas remedy person apply for in behalf of a who is authorized to by not if it relief motion under this section shall be entertained relief, motion, applicant apply by appears that the has failed person, or that the court has to the court which sentenced relief, by person appears remedy unless it also that the denied the legality inadequate motion is or ineffective to test the of his her detention. I, pro 7 and 8 of the Wisconsin Constitution Article secs. part as
vide in relevant follows: prosecutions Rights In all criminal of accused. Section 7. enjoy right the accused shall to be heard himself and coun- him; *4 sel; against of accusation to demand the nature and cause face; compulsory process to face to to have to meet witnesses behalf; compel prosecu- in the attendance of witnesses his and indictment, information, speedy public by by an tions or to a trial county impartial jury of the or district wherein the offense shall committed; county have been which or district shall have been previously by ascertained law. By the United States Constitution.3 to amendments 1992, court dismissed dated March order Escalona-Naranjo's 974.06 motion. The amended sec. of the issues raised concluded that each Escalona-Naranjo's had initial been raised court, and on motions to circuit appeal. 974.06 could not such, As a motion under sec. were or could have been to review issues which be used litigated appeal. on direct appeals Escalona-Naranjo's
The court of certified court, this from the circuit court decision to (Rule) pursuant 809.61, Stats. to sec. self-incrimination; Prosecutions; bail; jeopardy; double person may corpus. held Section 8. . . . No be to habeas law, process and without due of no answer for criminal offense put jeopardy punish- person may offense be twice in of for the same any ment, may compelled in criminal case to be a witness nor against himself herself. or amendment to the United States Constitution The sixth reads: right prosecutions, enjoy the In all criminal the accused shall trial, impartial jury speedy public of to the State and and committed, the crime shall have been which dis- district wherein by law, previously been and to be
trict shall have ascertained accusation; of the informed of the nature and cause be confronted against him; compulsory process to have with the witnesses favor, obtaining in his and to have the Assistance of witnesses for his Counsel defence. amendment, provides: The fourteenth States, subject persons bom or naturalized in the United All thereof, jurisdiction are citizens the United States and the any they or wherein reside. No State shall make enforce law State abridge privileges shall or immunities of which citizens life, States; person any deprive any nor State lib- United shall law; deny erty, property, process without due nor person equal jurisdiction protection within of the laws. its *5 Escalona-Naranjo in this case is whether The issue claim of ineffective assis- raising from his prohibited is in motion under a postconviction of trial counsel tance have been a claim could 974.06, Stats., if such sec. motion and/or on filed sec. 974.02 in a previously raised Escalona-Naranjo conclude that We appeal. direct of trial ineffective assistance raised the could have motions under sec. in postconviction counsel claim hold that Escalona- Therefore, we 974.02, Stats.4 in a from issue sec. raising precluded Naranjo order of circuit now affirm the 974.06 motion. We 974.06 Escalona-Naranjo's dismissing motion. filed, a criminal was December, 1984, complaint
In two counts of Escalona-Naranjo posses- with charging in deliver, with intent controlled substances sion of 161.14(4)(t), 161.14(4)(n), of secs. violation con- was 161.41(lm)(b), Escalona-Naranjo Stats. in February, trial following jury counts victed both 974.02, Stats., part: provides in relevant Section postconviction in criminal cases. Appeals and relief 974.02 (1) postconviction other than under s. 974.06 A for relief motion in be made the time and in a criminal case shall the defendant appeal by provided An the defen- 809.30 and 809.40. manner ss. judgment or from an from a of conviction in a criminal case dant denying postconviction from shall be taken motion or both order 808.04(3), provided in 809.30 and and manner ss. the time 809.40.... required appellant is not to file a An grounds prior if the are in the trial court to an previously sufficiency raised. of the evidence or issues commonly 161.14(4)(n), Stats., phencyclidine, lists Section "POP," hallucinogenic drug and controlled as an known as substance. 161.14(4)(t), Stats., tetrahydrocannabinols, lists
Section "TCH," hallucinogenic an controlled commonly known as as sentencing was the initial date Though 1986. trial counsel filed motion May, occur as to inquiry conviction and requested vacate the A competency mental condition. Esealona-Naranjo's *6 in of that wherein August year, held hearing was to for competent determined be Escalona-Naranjo was sentencing. sentencing in Esealona-Naranjo's Sep-
Following of to filed a notice intent tember, 1986, defense counsel 809.30(2)(b), sec. Stats. relief. See postconviction seek 974.02, Stats., motions Pursuant to trial, redetermination, and competency for a new December, in filed 1986. resentencing were a memoran- In the circuit court issued July, to Esealona-Naranjo's dum denying decision and order a new trial. The judgment vacate the exis- the "defendant has failed to show the stated that to an order justify vacating tence of error sufficient marijuana, in from mari- It is contained obtained substance. chemically synthesized. juana or 161.41(lm)(b), Stats., reads as Section follows: penalties.... 161.41 Prohibited acts A — (lm) chapter, Except by authorized this it is unlawful for as any person possess, deliver, or to with intent to manufacture may be controlled substance. Intent under this subsection demon- by, enumeration, strated without limitation because of evidence of monetary quantity possessed, and value substances possession manufacturing implements paraphernalia, or and possession person or of the of the activities statements con- prior alleged Any and trolled substance to after violation. respect person violates subsection with who this to: (cm) (b) (e) pars, (c), Except provided (h), any as to and III, I, may other controlled substance classified in schedule II or $15,000 imprisoned fined more or not more not than than 5 years both[.] judgment granting a new trial. Nor has defendant impact challenged shown that the cumulative evidentiary sufficiently prejudicial decisions was require grant of defendant's motion." appeals judgment
After the court of affirmed the Escalona-Naranjo court, the circuit filed a sec. 974.06, July, Stats., motion in 1990. An amended motion was February, Escalona-Naranjo filed in 1991. claimed relief because his conviction resulted from a denial of right his to effective assistance of trial counsel under art. I, secs. 7 and 8 of the Wisconsin Constitution and the sixth and fourteenth amendments United Specifically, Escalona-Naranjo States Constitution. argued testimony that certain evidence and admitted objected at trial should have been trial counsel object and that the failure to resulted a waiver of the right on these issues. *7 summarily state, in its motion to dismiss
Escalona-Naranjo's argued motion, sec. 974.06 that all alleged previously errors claimed had been raised in the 1986 motion and on appeal. merely rephrasing The state contended that appeal the issues submitted on would not constitute the basis for a sec. 974.06 motion. adopted reasoning
The circuit of the state and dismissed the sec. 974.06 motion. Escalona- Naranjo sought by appeals. further review the court of Certifying appeals the case to court, this the court of though Escalona-Naranjo stated that even waived cer- evidentiary object tain issues because he did not at may trial, the sec. 974.06 motion have raised new appeal. issues not decided on direct This case involves the construction of sec. 974.06, question statutory question A Stats. construction is a
175
independently and
this court decides
of law which
reasoning
courts.
the lower
to the
deference
without
Leeds,
797,
149
2d
v.
Wis.
Farms
Town of
Pulsfus
(1989) (citing
v.
Sacotte
Ideal-
329
803-04, 440 N.W.2d
Krug
359
Priester,
401, 405,
2d
121 Wis.
&
Werk
(1984),
4, Area
and Ball v. District No.
393
N.W.2d
(1984)).
Board,
529, 537,
In this court stated that *8 6 255, 63, Section as ch. sec. 974.06 was enacted Wis. Laws 1969, July 1,1970. effective 7 25, 646, 967; 1948, ch. 62 Enacted June Stat. amended 24,1949, 139, 114, May ch. sec. 63 Stat. 105.
176 [t]he 974.06, under Stats., is not a substitute for a motion for a new trial. A sec. 974.06 motion only can be made after the defendant has exhausted his direct remedies which consist of a motion for a new appeal. trial and A sec. 974.06 motion is limited in scope to matters of jurisdiction or of constitutional dimensions. The motion must not be used to disposed raise issues by previous appeal. State,
Peterson v.
8In the Prefatory Note, Commissioners' the rationale for proposed uniform act great was discussed. Of concern was the increased federal-state resulting conflict from the use of a federal corpus by prisoners. habeas writ state Abuses which had arisen connection corpus would, with federal habeas accord ing to the commissioners, be eliminated means of constructive action at the Thus, state level. the Uniform Post- (1) Conviction designed Procedure Act was part provide single, unitary, postconviction remedy place to be used in (2) remedies; provide other state remedy grounds for all attacking validity of a conviction or sentence a criminal case; require applicant present all claims for *9 Remedies, Post Conviction Claims]; Wisconsin see also 1980, the new Post-Con- at 1153. In L. Rev. 1970 Wis. superseded approved and Act was Procedure viction 8 now embod- sec. substance the 1966 version. [Affirmative Defenses-Res Judicata- in sec. 12 ied Process]. Misuse formally adopt
Though the Uni- did not Wisconsin purpose Act, the Procedure form Post-Conviction incorporated original underlying into sec. 8 was 974.06(4). Contrary to assertion of the dissent sec. purpose of is clear: to case, the in this require all their to consolidate defendants
criminal appeal.9 postconviction or into one motion claims 'S SECTION 974.06 ESCALONA-NARANJO DISMISSED PROPERLY MOTION WAS Escalona-Naranjo argues that neither circuit appeals directly addressed nor the court object to the admis- trial counsel's failure claim that testimony at trial resulted sion of certain evidence result, he con- assistance of counsel. As ineffective assistance of trial the claim of ineffective tends that pre- not the sec. 974.06 motion should counsel in at the initial on the conviction or sentence attack given why sufficient as to proceeding, unless reason was at that ground adequately for relief was not raised or asserted proceeding. See 11 U.L.A. at 479-82. Post- At 1966 revision of Uniform the time Act, Prefatory Note Procedure the Commissioners' Conviction articulated a similar intent: requires present applicant act] all of his claims for [The post-conviction his or sentence in his initial attack on conviction
proceeding.... 11 U.L.A. at 481.
eluded because it is raised being now for the first time and is a distinct issue from those consid- previously ered. In his sec. 974.02 motion for postconviction relief, *10 a requesting trial, new Escalona-Naranjo alleged that he was deprived of his due to process right trial, a fair for the part, following reasons:
(1) The court improperly admitted testimony regarding search warrant, which evidence was overly prejudicial to the defendant and consisted of impermis- sible hearsay;
(2) The court improperly permitted substantial inadmissible to hearsay be used against the defendant;
(3) The court permitted the introduction of sub- stantial evidence of other crimes which were not relevant and which were to prejudicial the defendant;
(4) The court admitted the improperly testimony of police officers regarding matters their beyond com- petence; and
(5) The court improperly permitted introduc- tion of extrinsic evidence credibility confidential informant, in violation of 906.08(2), Stats.
However, in the circuit court's memorandum deci- order, sion and these were challenges directly (a) case, addressed. In each the court noted that either the defendant failed to show that evidence was improp- (b) erly admitted or no objection was made at trial the introduction of certain testimony evidence. The court concluded that the failure to raise a timely objec- tion operated as a waiver of future any to the challenge evidence. it
Additionally, must be noted that two companion postconviction motions were filed on the same as day the motion for a new trial. Those motions called for a competency or, redetermination in the alternative, resentencing. motions, In those Escalona- each of Naranjo alleged specifically he was denied effec- that hearing competency at his of counsel tive assistance alleged sentencing ineffective assis- but never and his attorney.10 of his trial tance Escalona-Naranjo argues failure raise in his sec. counsel of ineffective assistance the issue on does new trial or direct motion for a 974.02 waiver, issue is one because the not constitute Escalona-Naranjo looks dimension. Bergenthal State, 72 2d Wis. court's decision in this (1976), controlling. N.W.2d 199 as 740,242 Bergen- first-degree During murder, his trial inspection requested of materials an in camera thal exculpa- possessed claimed state, which he were tory. Upon court concluded the review, the circuit exculpatory and had them sealed were not materials *11 subsequent purposes. envelope appeal Id. for a brown Bergenthal During postverdict motions, raised at 746. challenged and, time, 100 claims of error second of the court to disclose the contents failure envelope. appeal, raised, of error were but On claims to disclose the contents of not the circuit court's failure Though ruling envelope. Id. at 745-46. court's exculpatory in the nature of the materials envel- on the ope challenged appeal, not on direct the materials was to this court for themselves were not transferred appeal at 746. review when direct was taken. Id. Bergenthal's 'conviction, After this court affirmed challenged allegedly he the denial access to the exculpatory The 974.06 motion. cir- materials sec. parties subsequently stipulated granting to the form of a de novo sentencing hearing. postconviction relief Thereafter, Escalona-Naranjo postconviction his withdrew regard competency motion with to redetermination. motion, cuit court denied the stating that the issue had been of on direct disposed appeal that, therefore, "the motion could not be used as a vehicle for a second reviewed." Id. at 745. grounds on already This court disagreed and stated that though might properly
[e]ven the issue have been appeal, presents raised on it an issue of significant proportions and, therefore, must be considered in this postconviction motion for relief. Id. at 748.
We now Bergenthal which overrule the holding stated that a defendant although fails raise a consti- tutional issue on appeal, the issue still must be considered when raised in a sec. 974.06 subsequent (4) motion. The plain of subsection language clearly when provides a sec. 974.06 motion is appropriate. First, all grounds for relief under sec. must be 974.06 raised in a petitioner's original, supplemental, or amended motion. Contrary statements the dis- sent, there is no legislative history which restricts "original, supplemental amended motion" to a under brought solely Further, sec. 974.06. such a conclusion could not be reached even if we were look to the drafting section 8 of the Uni- language form Post-Conviction Procedure Act.
Second, if the defendant's for relief have grounds been waived or not raised in a finally adjudicated, prior motion, not they may become the basis for a 974.06 motion. The of subsection language *12 does not exempt a constitutional issue from this limita- tion, unless the court ascertains that a "sufficient reason" exists for either the failure to or to allege ade-
181 original, supplemental quately the issue in raise amended motion.11
11 (Ct. Klimas, 157 288 N.W.2d v. 94 Wis. 2d In State appeal and 1979), 974.06 motion filed a sec. App. the defendant constitutionality his for first- of conviction challenging the the circuit court's refusal degree Klimas claimed that murder. testimony regarding his mental state at the psychiatric to allow manslaughter a of and the refusal submit time the murder deprived process law. Id. at jury him of due of instruction to the appeals The court of held that 291. appeal [a] on direct was not a failure to raise the issue defendant's intelligent meaning 'knowing, voluntary of waiver' within the and failing statute, a 'sufficient reason' for to assert and that he had Moreover, presented on this at time. the issues
them that magnitude. significant are issues constitutional (footnote omitted). at 299 Id. Bergen- on part ofKlimas which relied
We overrule that that all issues must be considered thal conclusion However, proceedings. at the time of relief yet had not the case of appeal, Klimas' direct this court decided State, 84 Wis. 2d 267 N.W.2d Schimmel v. Matthews, Hughes 576 F.2d followed the case Schimmel (7th 1978), psychiat held that the exclusion of Cir. which capacity to form testimony regarding defendant's mental ric stating kill, jury coupled intent to with instruction proba and presumed to have intended natural defendant consequences acts, unconstitutionally relieves the of his ble beyond proving of its intent a reasonable doubt. state burden testimony deprived the of his The exclusion of such defendant present rights to a defense. sixth and fourteenth amendment Schimmel, Hughes psychiatric evidence in Kli- Under Klimas, Wis. at mas should have been admitted. 2d 296 - 97. subsequent Since the effect law was not foreseen at the appeal, why as to time of the "sufficient reason" existed cer- tain issues were not raised in the earlier motion. *13 if Bergenthal
Even aware, was as the (4) asserts,12 dissent of origin subsection was distinct from the rest of 974.06, sec. it failed to properly address fact that it was designed as a means to a compel to consolidate all for grounds relief, including grounds, his or her original, or amended supplemental motion.13 the Bergenthal decision Additionally, appears State, on Loop rely 65 499, 502, Wis. 2d 222 N.W.2d (1974), wherein this court stated: "Issues of consti- tutional dimension can be raised on direct can also be raised on 974.06 note, motions." We how-
12The dissent would have presence us assume that the Justice November, 1969, Connor Hansen at a meeting of the Judicial Council Criminal Procedure Code Revision Committee subsequently validated the reasoning Bergenthal. court's Dissenting op. Though at 188-189. Justice Hansen stated at the meeting postcon- that this court favored "some kind omnibus remedy," legislative history viction from which this decision is drawn by regarding is devoid of further comment him understanding scope imposed by or limitations subsection incorporated part Subsection was as of sec. 974.06 255, ch. July 1, sec. Wis. Laws of effective 1970. A comparable limiting provision incorporated was not into 28 September, 1976, U.S.C. sec. 2255 until February, effective 9(b) 1977. Rule governing proceedings the rules sec. 2255 the United States district courts states: may A
Successive motions. second or successive motion be dis- judge allege if missed finds that it fails to new or different grounds prior or, for relief and the determination was on the merits grounds alleged, judge if new and different are finds that the grounds prior failure of the movant to assert those in a motion procedure governed by constituted an abuse these rules. (As 94-426, 2(9), (10), Sept. 28, 1976, amended Pub. L. 1335). Stats. Loop although filed sec. the defendant
ever, that previ- requesting trial, he had not a new 974.06 motion pursued ously direct a sec. 974.02 filed ground appeal. either no for relief had been result, aAs *14 postconvic- finally adjudicated or in an earlier raised Loop, simply appeal. In this court held or tion motion appeal taken, is not a defendant "where a direct that raising alleged [not] error of consti- from foreclosed . at in 974.06 motion . .." Id. dimension a sec. tutional 502. raising Bergenthal appeal, contrast, did
In challenging the circuit court's but not claims error allegedly exculpatory ruling in the materials on By failing properly apply envelope. sec. to sealed 974.06(4), Bergenthal court allowed defendant remaining issue in a sec. 974.06 to raise that one motion. applied case,
As in the instant subsection Escalona-Naranjo clearly preclude from rais- does not ing, time, even at this an issue of reason not asserted which for was dimension sufficient inadequately original, supplemen- in raised his was However, motions. tal or amended Escalona-Naranjo of ineffective assis- raised issue At of counsel in two ofhis sec. 974.02 motions. tance attorney already he knew that his had time, same trial object he believed failed to what inadmissible allegation in not those evidence. He chose to make any alleged why reason motions and has not sufficient that same claim a court should now entertain sec. 974.06 motion. because "it
The dissent criticizes this decision appeals under treats direct and motions sec. 974.06 974.06(4). identically interpreting They are not sec. 974.06(4)." purposes sec. be treated the same for Dissenting op. However, at 190. the dissent cites no authority proposition. plain language for that "[a]ny ground... states that not so raised proceeding . . . in the that resulted in the conviction or proceeding person sentence or in other has taken may subsequent to secure not be the basis relief added.) (Emphasis Again, motion . . .." nowhere it statute is stated that a sec. 974.06 motion should be differently treated from a direct or a sec. 974.02 motion. finality litigation.
We need in our Section 974.06(4) compels grounds to raise all regarding postconviction original, relief in his or her supplemental or amended motion. Successive motions appeals, brought and which all could have been at the design purpose time, run same counter to the legislation.
Contrary to the assertion of the dissent, we are not foregoing finality fairness for nor do we abdicate our responsibility protect rights. federal constitutional simply apply plain language We of subsection requires which reason to raise a constitu- sufficient tional issue in a sec. 974.06 motion that could have appeal been raised on direct or in a sec. 974.02 motion. explain why The dissent fails to it is now unfair to tell Escalona-Naranjo, or other criminal defendants and attorneys, their that constitutional claims which could appeal have been on raised direct a sec. 974.02 motion cannot later be the for a basis sec. 974.06 motion. designed
Section was not so that a defen- upon dant, conviction, could raise some constitutional strategically on issues and wait to raise other years issues a few later. Rather, defendant should raise the constitutional issues of original postcon- part as of the he or she is aware which point, everyone's memory proceedings. At that viction usually still fresh, witnesses and records are is still any remedy is entitled to available, the defendant and expeditiously can be awarded. Escalona-Naranjo's sec. its motion to dismiss
In argument written to the cir- motion, the state's 974.06 began: these cases ever cuit court "When are long lawyer appears completed? as as some can It theory up appeals continue." Dur- come with a new process filing ing of sec. 974.02 series Escalona-Naranjo motions in had complete to him a record the trial and available postverdict proceedings. He claimed ineffective assis- competency who handled tance counsel sentencing hearings chose that same but not attorney. raise respect to trial We conclude issue with his why alleged has a sufficient reason as to his that he not allegation of ineffective assistance trial counsel when he filed his sec. 974.02 could not have been raised properly for a new trial. The circuit court dis- missed his motion.
By order of the circuit court is Court.—The affirmed. (dissenting). ABRAHAMSON, S. J. For
SHIRLEY years applications post-conviction relief under litigated, 974.06, 1991-92, filed, been Stats. have according precepts Bergenthal and decided to the *16 (1976). Today 740, State, 2d 199 72 Wis. N.W.2d majority Bergenthal. majority The the overrules is able justify precedent only by its abandonment of miscon- struing by making appear statute, it the Bergenthal case was erroneously decided. On the con- Bergenthal trary, was then and is now sound law. The overrules Bergenthal majority for three rea- 1) the Bergenthal sons: alleged court's failure 974.06(4) sec. and to interpret correctly appreciate the 2) of Bergenthal origins 974.06(4); sec. court's sup- State, of Loop posed misreading 65 Wis. 2d 3) Bergenthal's (1974); N.W.2d 694 incon- alleged with the sistency goal "finality." None these for overturning 18-year-old reasons precedent with- stands The fails to the value scrutiny. majority weigh of fairness against and abdicates its goal finality responsibility protect federal constitutional rights.
h-1 Bergenthal court The concludes that majority 974.06(4) misinterpreted by allowing constitu- tional issues to raised in a sec. 974.06 motion which could have been —but were not —raised on direct mistaken conclusion about Ber- review. The majority's 974.06(4) genthal and sec. on its premised of sec. 8 of the misinterpretation Uniform Post-Convic- tion Procedure Act which sec. upon is based. See n.8. majority opinion Bergenthal
The court knew that of sec. origin 974.06(4) was the Uniform Post-Conviction Procedure Bergenthal Act. The cited Committee Com ment to sec. 974.06. See Bergenthal, 72 Wis. 2d at Bergenthal n.1. "Committee" referred to in is the 1967 Judicial Council Criminal Procedure Code Revi (sometimes sion Committee referred to as the Criminal Committee) Rules with which the court very was famil Connor Hansen, iar. Indeed Justice the author of the Bergenthal opinion, attended at least one the Com "to mittee's discuss with the members meetings *17 on the Uniform Post-Convic- feeling Court's Supreme a remedies was Providing post-conviction tion Act."1 1960s, courts in the late state major facing issue draft. role in the Judicial Council the court a played Comments, which the the Committee Furthermore clearly Bergenthal obviously examined, explain 974.06(4): (4) is taken from the of sec. "Sub. the source Procedure Act and is Uniform Post-Conviction questions a to raise all designed compel him in one Justice Connor available to motion."2 Thus in the Committee Bergenthal Hansen's reference demonstrates that the court was aware Comments 974.06. sec. origins (and of the Uniform Act sec. The drafters 974.06(4)) prisoners collaterally assumed that attack- the direct already convictions had ing completed their motion) (or 974.02 or that brought a sec. appeal process The had exercising remedy passed.3 the time for that to the Uniform Act "What explains Note Prefatory "It provides single, Act Does" as follows: Proposed 1 Procedure Code Minutes the Judicial Council Criminal 1969, Committee, 17-18, drafting the bill Nov. Revision 1969, Laws of ch. 255. records to 1969, 974.06; 255, Laws of ch. 63 2 1970Wis. Annot. sec. sec. (sec. 974.06, Ann., 974.06); Wis. Stats. Comments-L. West's (1985). p. at 258 c. "A can made This court has said: sec. 974.06 motion has only after the defendant exhausted his direct remedies appeal of a motion new trial and .... which consist disposed by previous not be used to raise issues must State, 370, 381, 195 appeal." Peterson v. Wis. 2d N.W.2d specify Section was amended 1977 to "[ajfter only brought motion can be the time for sec. 974.06 post-conviction remedy provided in Section 974.02 has expired." remedy place
unitary, postconviction of all to be used review)." (except 11 U.L.A. remedies direct other state 1974). 1(b) (Master Act Sec. of the Uniform Edition 481 expressly remedy post-conviction is "not that the states *18 any remedy incident nor does it affect a substitute for proceedings court, or of direct review in the trial to the .." 11 U.L.A. 486 or conviction . . the sentence 1974). (Master Edition Uniform Act focused on the drafters of the
Rather, bring- barring prisoners devising from a fair method post-conviction multiple ing relief. motions for ordinarily appeal, prisoner Following a a trial and post-conviction motion for entitled to one would be in Wiscon- Act, 8 of the Uniform codified relief. Section 974.06(4); prisoners attempted limit to a to as sec. sin single post-conviction motion, unless there was "suffi- ground not asserted that a for relief was cient reason" motion.4 in the initial majority opinion believe, I trouble, runs into
The appeals under sec. and motions it treats direct because 974.06(4). They identically interpreting sec. 974.06 purposes of sec. not to be treated same are 974.06(4). sepa- appeal are two 974.06 motion and an A sec. proceedings. review, collateral distinct State rate and provided 974.06, is the con- for in Wisconsin under sec. corpus equivalent ceptual habeas of federal —an Whole, Proceedings of the Committee of the Second See Act, August Uniform Post-Conviction Procedure Revised explained, 1-7, presenter As the of the Act pp. 33-43. finality. seeking post-convic Prisoners 8 has to do with section all, inquiry once and for relief "should have full-blown tion clause, put that, except escape we have after for an which . . . Act, repeated and there shall not be and must not be into the of a conviction." frivolous excessive effort to seek review imprisonment, challenge opportunity for a adopted grounds. generally States on constitutional "[t]he procedures specter avoid collateral review freeing state convicts in orders federal court adequate as United remedies," state absence scope expanded Supreme of federal Court States important sup- corpus.5 can Such review habeas appeal. plement direct to a mind, it is clear that sec. With this distinction preventing a not aimed at and sec. are (or bringing prisoner motion) 974.02 first direct from bringing a 974.06 motion. and then sec. 974.06(4), Act, the Uniform Rather, and sec. of sec. bringing designed prevent prisoners from succes- are attacks, is successive sec. 974.06 sive collateral challenging their convictions. motions 974.06(4), language of which substan- tially Act, as of the Uniform makes the same sec. 8 *19 absolutely it does not bar a sec. 974.06 clear that raising issues that could motion from The not raised on direct review. have been but were reads as follows: statute a person relief grounds
"All for available her origi- must be raised in his or under this section Any ground nal, motion. supplemental or amended finally raised, knowingly, not adjudicated or so intelligently proceed- in the voluntarily and waived ing in the conviction or sentence or in that resulted proceeding person has taken secure other motion, subsequent relief be for a may not the basis ground relief asserted Tinless the court finds for reason was not asserted or was which for sufficient original, supplemental inadequately raised in or amended motion." Larry Yackle, 2-3 Post-Conviction Remedies W. majority's equating
The error lies in sec. 974.06 motions) (including motions with direct reviews 974.02 reading 974.06(4), in its of the first sentence of sec. grounds which mandates that all available for relief 974.06(4) "original, supple- under sec. be raised majority mental or amended motion." The reads this referring sentence as to both an and a sec. majority opinion 974.02 motion. See at 185-186. Here's "original, supplemental the error. The or amended motion" referred to in this first sentence under sec. 974.06.6 very language of sec. and sec. 8 of the Uni point clearly,
form Act states this legislative history and the supports my the Uniform Act understanding of the first sentence. during
A comment the commissioners' discussion (and Uniform Act illustrates that the first sentence of sec. 8 974.06) (and only relates to a motion under the Uniform Act motion): to a sec. 974.06 Chairman, your "Mr. Gibson: Mr. I'd like to call to attention a
possible might put sentence, connotation that be on the first 'All grounds applicant available to an under this Act must be relief original, supplemental, application.' raised in his or amended position they original Some of them will take the can file an application that, hearing and have a on and later file an amended application. might I ambiguity by think it be well to resolve that stating original application, applica- 'must be raised in his which may supplemented tion or amended.' already "Mr. Jenner: We have said that. Yes, you have, "Mr. Gibson: I think but I think that some of undoubtedly position them will take the that I mean it can —and you application
be construed —that can file an amended after a *20 hearing your original application. on "Mr.Jenner: That wouldn't be an amendment. That would be a new one.
191 three of sec. sets forth The next sentence sec. 974.06 which cannot the basis grounds (1) adjudicated or finally that was Any ground motion: (2) motion; Any in sec. 974.06 prior was not raised intelli- and voluntarily that was ground knowingly, that resulted in the waived in the gently proceeding sentence; that was Any ground conviction or and in and waived knowingly, voluntarily intelligently has taken to secure relief.7 other proceeding person is thus barred under Although in a sec. 974.06 motion an relitigating 974.06 from and decided fully fairly adjudicated issue that was and in the nothing on the merits a direct lan- appeal,8 proper, my interpretation experience "Mr. Your but Gibson: they will take all kinds of different attacks has been with these that applications. against or in aid of different note, suggest May this "Mr. we take care of and Northan: Proceedings say? [Laughter]" we of the Com- that mean what we Whole, Second Revised Uniform Post-Conviction mittee added). August 3,1966, p. (emphasis Act, 35 Procedure 7 objected grounds on A critic of the Uniform Act raising finality. approved prevent He that the Act "does issues previous inexcusably has failed to raise in a that a defendant proceeding proceedings leading post-conviction in the suggested "general But judgment conviction." he encourage perhaps require . . should be to then thrust. — —all proceedings raised in the known available defenses to be Proceedings leading to conviction and in thereof." Whole, Committee Uniform Post-Conviction Procedure Act of the National Conference of Commissioners on Uniform Laws, 29,1980, July State 26 and at 8. 8 Walberg, State v. 96, 103, 325 109 Wis. 2d N.W.2d 687 Roh, (Ct. State v. (1982); 77, 96, 104 631 Wis. 2d 319 N.W.2d State, v. Beamon 1981); 220, App. 93 2d 286 Wis. N.W.2d State, Peterson. (1979); 2d 195 Wis. N.W.2d 837 Post-Conviction Remedies (1972); Eisenberg, Howard 1970's, Marq. 69, 80 L. Rev. *21 (or Act), Uniform sec. 8 of the of sec. 974.06 guage 974.06(4) (or the Uniform of sec. history legislative conclusion majority's or our cases Act), supports in a sec. raising from bars that sec. could have been raised in issue that 974.06 motion 974.06(4) bars the prisoner Section a direct appeal.9 issues in sec. 974.06 motion subsequent raising from initial 974.06 raised in the could have been reason" excuses unless "sufficient motion, omission. of sec. 8 of this support interpretation
To further
(and
974.06(4)),
of sec.
I turn
Act
therefore
the Uniform
(ABA) Standards
American Bar Association
to the
As the majority
Remedies.
to Post-Conviction
Relating
178,
at
the Commis-
opinion
explains, majority
opinion
closely
Laws worked
with
on Uniform State
sioners
Committee
Association Standards
American Bar
Indeed the Commissioners
the Uniform Act.
drafting
9
Commissioner's
8 of the Uniform Act
Comment
to sec.
"permis
adopted to mirror the
provision
this
was
explains that
under the federal collateral
successive claims
siveness" toward
in Sanders v.
required by
Supreme
Court
relief statute
(1963).
States,
1
11 U.L.A. at 528-29.
United
373 U.S.
no iden
appeals
has held that when
The Wisconsin court
post-
present
and a
previous
on a
tity of issues exists
quoting Sand
heard,
motion,
the motion should be
conviction
particular
cases
ers'
holding
"[s]hould doubts arise
as follows:
same,
they
grounds
or the
two
are different
as to whether
Sharlow,
State v.
[petitioner]."
favor
should be resolved
(Ct.
1982), aff'd,
440, 444, 317
App.
110
2d
N.W.2d 150
106 Wis.
2d
327 N.W.2d
Wis.
(Ct.
Klimas,
In State v.
2d
288 N.W.2d
Wis.
denied,
(1980),
permit
cert.
1979),
the court
App.
stated that "impetus pole star of this [1980] According current ABA standards."10 are the revision in case of Standards, except ABA and 1980 to the 1967 in post-conviction advanced claims of process, abuse even merits, their be decided on should applications *22 and been, not, fully but were have might though they litigation.11 stages finally litigated prior majority's position, to the summary, contrary In Act, the origin Remedies Post-Conviction the Uniform in Ber- 974.06(4), approach the court's supports of sec. to undercut attempt The majority's genthal. does oiBergenthal majority fails because reasoning filed pursu- motions for relief between not distinguish The Bergenthal and direct appeals. ant to sec. the distinction between necessary court did draw the essential role fully comprehended two and The Ber- collateral review. post-conviction played by issue [raised "even though court held that genthal raised on have been might properly motion] in this constitutional significant an issue it appeal, presents must, considered this and, therefore, proportions Bergenthal, 72 Wis. relief." motion for post-conviction at 748. 2d misreading second mistake is its
The majority's
(1974).
2d
According opinion, or a sec. 974.02 if the does not an bring appeal he can a sec. 974.06 motion on con- bring motion then that he could have raised but failed to stitutional issues that if the prisoner brings raise on appeal, he not motion, may bring a sec. 974.02 cause) for sufficient a sec. 974.06 motion on (except issues that he failed to raise. This is not Rather, Loop says. "[Tissues what states Loop constitutional dimension can be raised on direct appeal motion." Loop, and can also be raised on 974.06 Wis. 2d at 502. and texts sec. 974.06 do not discussing cases See J. majority as does. Robert
distinguish Loop Malmgren, Martineau and Richard R. Wisconsin (1978); Practice ch. sec. 2706 David L. Appellate Walther, Grove, Heffernan, Patricia L. Michael S. and Procedure Practice Wisconsin Appellate 19.6b
H-4 I—l h-i The last its deci- majority's argument supporting to overrule is that" need Bergenthal finality [w]e sion 186. Of final- our at course litigation." Majority opinion 974.06(4) important. is drafters ity very the Uniform Post-Conviction Procedure Act were to ensure finality by allowing attempting one motion after direct bring only post-conviction author, The comments of Justice appeal. Bergenthal's Hansen, to the Judicial Council Committee Connor reflect the court's concern with that a ensuring pris- post-conviction relief at "one chance" receive oner 974.06.12 under sec. finality litigation, the it was about
Concerned as goal recognized Bergenthal that the nevertheless against finality need to ensure balanced must be significant a full claims receive that inquiry Finality is no more under sec. 974.06.
on review invoking years ago; today important it was 18 than certainly justification finality for overrul- no is need for fully appreciated ing of a court the decision issue. finality, weigh remem- we must fairness and
As we lawyer, always client, not the it is almost ber that I review. am aware on direct raise an issue fails to who lawyers legal important clients and fiction that ordinarily law, this under the but treated as one are concept competent law- fiction. Even
is nevertheless fundamentally yers me It make mistakes. seems lawyer on a client who the mistakes unfair to visit constitutionality challenging on of his conviction of counsel. of ineffective assistance the basis finality by ordinarily ensures Section single post-conviction limiting prisoners motion. to a apparently adopted in the states that have Moreover, majority's approach relief, to motions for collateral merely litigation the court's attention has shifted constitutional claim to arcane the merits of the from procedural procedural Rather than create a issues.13 significant with morass, I would rather see courts deal constitutional issues on their merits. Criminal Procedure Code Minutes of the Judicial Council Committee, Nov.17-18, 1969, drafting Fri. the bill
Revision *24 of ch. Laws of 1969. records 13 in to secs. 8 and 12 of the See cases cited the annotations Uniform Act.
196 third reason for majority's overruling Thus under The court should Bergenthal scrutiny. withers without sufficient precedent justifica- not from depart nor the offers tion, majority neither the state yet any existing The state cannot describe justification. Bergenthal. It has to no pointed difficulties under in the law that undermine changes developments It has made no show- behind the decision. the rationale has become detrimental to the ing precedent the coherence or to justice system administration no to depart in the law. There is reason consistency from 18-year-old precedent.
IV.
more
at
Finally,
looking
broadly
panoply
I would
rights,
afforded constitutional
protections
changed
one
consideration has
important
observe that
the role of state courts
Bergenthal
was decided:
since
of people
the federal constitutional
rights
upholding
much
than it
greater
today
convicted of state crimes is
Bergenthal
after
was
years ago.
year
was
began
the United States
Court
decided,
Supreme
state courts much of the responsibility
shift toward
the constitutional
convicted
rights
people
protecting
v.
Wainwright
Sykes,
courts.
433 U.S.
in state criminal
Noia,
(1963),
(overruling Fay
sess criminal intrusions into state ... Federal criminal law to sovereign power pun both the states' frustrate trials to honor attempts their good-faith offenders and ish Isaac, 107, 128 456 U.S. v. rights." Engle constitutional (1982). —, — U.S. also, Thompson, v. See Coleman death- habeas (denying corpus S. Ct. his had been three lawyer because sentenced of a denial of state a notice filing late days habeas corpus). limitations on the increasing
In of these light federal habeas our corpus, of the writ of availability federal consti protect as a state court responsibility must carefully is ever We greater. tutional rights especially our rules of criminal procedure, consider to collateral act as bars procedural those which will courts. Wain in our courts and the federal review under years For 18 433 U.S. wright Sykes, job providing have done a good we Bergenthal, seeking review remedy prisoners state adequate on collateral review. claims significant we abandon that course. Today, justification, without For the responsibility. not so abdicate our We should forth, I dissent. reasons set Chief Justice Nathan authorized to state that am
I this dissent. joins S. Heffernan