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Coram Nobis

State v. Andrew M. Obriecht, 2010AP1469, District 4, 10/28/10

court of appeals decision (1-judge, not for publication); pro se

Following earlier unsuccessful challenges to his plea-based conviction via direct appeal and habeas, Obriecht utilizes coram nobis as an attack mechanism. He argues that his plea wasn’t knowing, and that requiring a plea as a precondition to participation in the First Offender Program violated due process. The court rejects the arguments because they don’t relate to factual error unknown at the time, hence fall outside the confines of coram nobis.

¶7        The scope of the writ of coram nobis is very narrow.  State v. Heimermann, 205 Wis. 2d 376, 382, 556 N.W.2d 756 (Ct. App. 1996).  It provides a means to remove errors of fact that were unknown at the time of trial and are of such a nature that knowledge of the fact’s existence would have prevented the entry of judgment.  Id. at 383 (citation omitted).  The writ does not lie to correct errors of law that appear on the record.  Jessen v. State, 95 Wis. 2d 207, 214, 290 N.W.2d 685 (1980).  A decision whether to issue a writ of coram nobis is left to the circuit court’s discretion.  Id. at 213.  We affirm a circuit court’s decision if the court applied the correct law to the facts of record and reached a reasonable conclusion.  See State v. Manuel, 2005 WI 75, ¶24, 281 Wis. 2d 554, 697 N.W.2d 811.

¶8        We conclude the court properly exercised its discretion in deciding that Obriecht’s petition is directed to legal arguments and not to a factual error that was unknown at the time of the trial.  On appeal he attempts to characterize his complaint as one of factual error, asserting that the district attorney intentionally made a false representation on the requirements for participating in the First Offender Program and the circuit court relied on that inaccurate statement.  Despite this reframing of the error, it remains in substance a legal question concerning requirements for participation in the First Offender Program.

Detailed discussion of writ in Heimermann, which includes following caution (205 Wis. 2d at 384): “First, he or she must establish that no other remedy is available. What this means for criminal defendants is that they must not be in custody because if they are, § 974.06, STATS., as an example, provides them a remedy.” Hard to tell whether Obriecht remains in custody on this case – his 2-year sentence imposed in 1998 obviously has expired but he received subsequent consecutive sentences which have kept him prison and which may or may not relate all the way back to this sentence. In any event, the court doesn’t discuss the custody requirement, but it’s one that must be kept in mind with respect to the writ.

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