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Postconviction motion under § 974.06 challenging enhanced misdemeanor sentence is barred because issue was not raised in previous postconviction motion

State v.  Zackory J. Kerr, 2013AP273-CR, District 1, 7/23/13; court of appeals decision (1-judge; ineligible for publication); case activity

Kerr was sentenced to one year of confinement and one of extended supervision, consecutive to any other sentence. Shortly after sentencing he unsuccessfully challenged the circuit court’s subject matter jurisdiction. (¶¶2-4). A few years later he moved for sentence modification based on  State v. Gerondale, 2009AP1237-CR & 2009AP1238-CR (Wis. Ct. App. Nov. 3, 2009) (unpublished), and  State v. Ash, 2012AP381-CR (Wis. Ct. App. Aug. 15, 2012) (unpublished). The circuit court denied the motion as barred under State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994), which generally requires all claims for postconviction relief to be brought in a single motion. The court of appeals agrees:

¶9       …. Kerr claims he could not have relied upon Gerondale or Ash to challenge his sentence earlier because they were not issued until after he was sentenced; however, as noted, these cases were not published. Gerondale and Ash, as unpublished cases, are not new law. See Wis. Stat. § 809.23(2) [sic]. The sentencing statutes that Gerondale and Ash discuss were in effect at the time Kerr was sentenced. Kerr does not explain why he failed to identify the issue of misdemeanor bifurcation in his previous litigation.

¶10      Moreover, contrary to what Kerr argues, neither Gerondale nor Ash constitutes a “new factor.” A new factor is “a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties.” Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). Gerondale and Ash, on the other hand, are merely persuasive authority that courts remain free to reject. See Wis. Stat. § 809.23(2) [sic: cite should be § 809.23(3)(b)] (unpublished opinions issued on or after July 1, 2009 may be cited for persuasive value, but are not precedent, and are “not binding on any court of this state. A court need not distinguish or otherwise discuss an unpublished opinion and a party has no duty to research or cite it.”).

The court doesn’t mention it, but there’s an exception to the procedural bars in § 974.06 and Escalona-Naranjo. That exception allows a defendant to seek relief from faulty repeater sentences under § 973.13, which voids sentences that exceed the lawful maximum. State v. Flowers, 221 Wis. 2d 20, 22-23, 28-29, 586 N.W.2d 175 (Ct. App. 1998) (defendant could raise state’s failure to prove repeater status for the first time in a successive § 974.06 motion). CfState v. Hanson, 2001 WI 70, 244 Wis. 2d 405, 628 N.W.2d 759 (defendant’s plea to habitual traffic offender charge did not waive later challenge to HTO status because § 973.13 requires a court to declare a sentence void “in any case” where the court imposes a maximum penalty that exceeds that authorized by law). This exception doesn’t help Kerr because Gerondale and Ash are not binding authority, so his sentence isn’t clearly unlawful. In fact, in a decision issued the same day as Kerr’s, another judge in this district rejects the reasoning in Gerondale. Our post on that case, State v. Shawn Robinson, 2012AP2498-CR, is here.

{ 1 comment… add one }
  • Robert R. Henak July 26, 2013, 8:15 am

    The Court also overlooks the facts that (1) Escalona-Naranjo addresses a statutory bar under 974.06(4) that applies only to 974.06 motions and thus has no direct application to new factor sentence modification motions, although the circuit court probably can consider the failure to raise the claim earlier under the second, discretionary prong of the Rosado/Harbor analysis, and (2) Under Harbor, changed circumstances do not have to require a different result to be highly relevant to the issue of sentencing and thus a new factor.

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