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Defendant’s s. 974.06 motion is barred because he is no longer in custody under the conviction he’s challenging

State v. Michael J. Viezbicke, 2021AP2172, District 2, 10/12/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Viezbicke filed a postconviction motion under § 974.06 challenging his convictions in a 2017 misdemeanor case. The court of appeals holds the motion was barred because he is no longer in custody under the sentence imposed in that case.

Though Viezbecke was in custody when he filed the motion, but, as Viezbicke conceded, he was not in custody on the sentence imposed for the 2017 offenses; instead, he was serving a consecutive sentence imposed in a different case for offenses committed in 2018. (¶¶5, 8-11, 18).

To file a motion under § 974.06, a person must be “a prisoner in custody under sentence of a court” and must be “claiming the right to be released upon the ground that the sentence was imposed” in violation of the law, § 974.06(1) (emphasis added). Thus, a person who is no longer in custody for the sentence he seeks to challenge may not bring a motion under § 974.06. State v. Bell, 122 Wis. 2d 427, 362 N.W.2d 443 (Ct. App. 1984); Jessen v. State, 95 Wis. 2d 207, 211, 290 N.W.2d 685 (1980); Thiesen v. State, 86 Wis. 2d 562, 570, 273 N.W.2d 314 (1979). Because Viezbecke was no longer in custody under the sentence in the case he was challenging, the circuit court lacked competency to address his motion. (¶¶18-20).

Viezbicke argued his motion was timely because the sentence he is currently serving was imposed consecutive to the sentence in the 2017 case and is therefore directly connected to or a continuation of his completed sentence. (¶11). The court says Viezbicke doesn’t develop this argument sufficiently. (20 n. 4). But he did cite State v. Theoharopoulos, 72 Wis. 2d 327, 240 N.W.2d 635 (1976), claiming it “adopted” a rule for federal habeas petitions that a defendant may use habeas to collaterally attack an old case for which the defendant is no longer in custody if the old case was used to enhance the sentence of the case for which they are currently in custody. 72 Wis. 2d at 332, citing Banks v. United States, 319 F. Supp. 649 (SDNY 1970). But Bell puts paid to that argument, for it held that Theoharopoulos “impliedly rejects” the rule from Banks. 122 Wis. 2d at 430. (Curiously, the court of appeals doesn’t cite Bell here, even though it’s closer to Viezbicke’s fact situation than Jessen and Thiesen, which the court does cite, and addresses Viezbicke’s argument more directly—which is no doubt why the state relied on Bell in its brief.) Further, Theoharopoulos discussed Banks in addressing mootness, not competency, which determines the court’s power to act. Finally, it’s not clear the 2017 conviction was used to enhance the sentence in the 2018 case or whether the 2018 case’s sentence was simply consecutive as a matter of sentence structure; if it was the latter, the Banks rule may not apply even if it was “adopted.”

The circuit court was unsure whether it could entertain Viezbicke’s motion given the fact his sentence was finished, but it decided to hold an evidentiary hearing anyway. (¶11). So the court of appeals also addresses the claims Viezbicke was making—namely, that his trial lawyer was ineffective for failing to realize there was an entrapment defense and that body camera footage had been lost or destroyed—and the evidence from the postconviction hearing, and affirms the circuit court’s conclusion that trial counsel was not ineffective. (¶¶2-7, 12-17, 21-27). Thus, even if Viezbicke could proceed with a 974.06 motion, he failed to prove his claims. (¶21).

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{ 1 comment… add one }
  • Robert R. Henak October 26, 2022, 1:27 pm

    The Court appears to be wrong on the jurisdictional issue (no comment on the merits).

    The Supreme Court has made clear under the parallel provisions of federal habeas that, when a petitioner is serving consecutive sentences, he or she is “in custody” for all of those convictions throughout the period regardless of which sentence is deemed to be served first. Peyton v. Rowe, 391 U.S. 54, 67 (1968). This is consistent with Wisconsin law that, unless specifically stated otherwise, see, e.g., Wis. Stat. s973.195, consecutive sentences are treated as a single sentence, e.g., Wis. Stat. s. 302.113(4). Thus,

    a. A defendant serving the first of two consecutive sentences is “in custody” for purposes of challenging the sentence to be served second, even though it has not yet begun and even though winning the petition would not result in immediate release. Peyton v. Rowe, 391 U.S. 54 (1968).

    b. A defendant serving the second of two consecutive sentences is “in custody” for purposes of challenging the sentence served first, even though he or she has completed service of that sentence. Garlotte v. Fordice, 515 U.S. 39, 46 (1995), at least so long as the expired sentence “continues to postpone the prisoner’s date of potential release” under the unexpired sentences.

    Odd that the Court of Appeals missed that.

    Jurisdiction is a question to be considered and addressed by the Court regardless of whether the parties raise (or, in this case, the pro se petitioner inadequately briefed) the issue. And since the law appears to be clear that the Court HAS jurisdiction, denying the petitioner relief simply because he is proceeding pro se without the same background and resources a lawyer would have is not just.

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