State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Issue/Holding: State failure to argue, in the trial court, that Miller’s 974.06 motion was barred under Escalona-Naranjo waived the argument on appeal:
¶25 We conclude that application of the waiver rule is appropriate here, and therefore decline to address the State’s Escalona argument. Waiver is a rule of judicial administration, and whether we apply the rule is a matter addressed to our discretion. See Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 417, 405 N.W.2d 354 (Ct. App. 1987). Miller’s case differs from Crockett, wherein the defendant failed to raise his claim in three prior postconviction motions, and did not assert a sufficient reason for failing to raise his claim in his direct appeal or the prior postconviction proceedings. Crockett, 248 Wis. 2d 120, ¶10. The present case is more akin to State v. Avery, 213 Wis. 2d 228, 247-48, 570 N.W.2d 573 (Ct. App. 1997), in which we concluded that the State had waived its right to assert the procedural bar of Escalona. Like Miller, Avery had made no prior § 974.06 motions. Moreover, as in Miller’s case, the circumstances weighed heavily in favor of reaching the merits. Avery’s motion alleged a miscarriage of justice based on the late discovery that the sheriff’s department had withheld evidence. Here, Miller’s motion asserts claims that he was unable to raise in his direct appeal, as explained below, and alleges that the State failed to meet its burden of proof on his conviction for first-degree reckless injury. For the foregoing reasons, we therefore conclude that the State has waived its argument that Miller’s claims are procedurally barred by Escalona. 
The court further indicates, fn. 9, that the indistinguishable State v. Robinson, 177 Wis. 2d 46, 53, 501 N.W.2d 831 (Ct. App. 1993)(serial-litigation bar inapplicable where trial counsel was also direct-appeal counsel) would nullify Escalona here anyway. Note, as well, the court’s instruction, ¶22 fn. 10, citing State v. Ndina, 2009 WI 21, ¶¶29-30, that “forfeiture” is the correct nomenclature; “waiver” used merely because the parties use the term.
Additional authority discussing and applying State’s waiver in various contexts: State v. Danny G. Harrell, 2008 WI App 37; State v. Jonathan W. Nawrocki, 2008 WI App 23; State v. Robert J. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998); State v. Gerald J. Van Camp, 213 Wis. 2d 131, 569 N.W.2d 577 (1997). But: State v. Darcy N.K., 218 Wis. 2d 640, 581 N.W.2d 567 (Ct. App. 1998) (state’s waiver doesn’t apply where defendant’s action supported judicial estoppel)