Opinion
No. 2010AP703.
Opinion Filed: March 15, 2011.
APPEAL from an order of the circuit court for Milwaukee County: DAVID A. HANSHER, Judge. Affirmed.
Before Curley, P.J., Fine and Kessler, JJ.
¶ 1 Douglas A. Ruehl, pro se, appeals an order denying his WIS. STAT. § 974.06 (2009-10) motion without a hearing. We agree with the circuit court that the motion is procedurally barred, and we affirm.
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
¶ 2 In 2004, Ruehl pled guilty to one count of incest with a child, pursuant to a plea agreement in which the State agreed to dismiss a second charge of first-degree sexual assault. Ruehl was sentenced to fifteen years' initial confinement and ten years' extended supervision. Appointed counsel filed a no-merit appeal, to which Ruehl responded. After considering the no-merit report, response, a supplement report, and our own examination of the record, this court summarily affirmed the conviction in December 2005. In February 2010, Ruehl moved for relief under WIS. STAT. § 974.06, claiming that trial counsel was ineffective. The circuit court denied the motion as procedurally barred by State v. Escalona-Naranjo , 185 Wis. 2d 168, 517 N.W.2d 157 (1994), and Ruehl appeals.
¶ 3 It is well-settled that WIS. STAT. § 974.06 requires criminal defendants "to consolidate all their postconviction claims into one motion or appeal." See Escalona , 185 Wis. 2d at 178 (emphasis in original). If a defendant's grounds for relief were finally adjudicated, waived, or not raised in a prior postconviction motion or appeal, they may not form the basis for a new postconviction motion unless the defendant has a sufficient reason for failing to raise the issue previously. See State v. Fortier , 2006 WI App 11, ¶ 16, 289 Wis. 2d 179, 709 N.W.2d 893; see also § 974.06(4) and Escalona , 185 Wis. 2d at 181-82. Section 974.06 also prevents Ruehl from raising issues that he could have raised in his no-merit response, absent sufficient reason. See State v. Allen , 2010 WI 89, ¶¶ 5, 41, 328 Wis. 2d 1, 786 N.W.2d 124.
¶ 4 Here, Ruehl asserts his current claims of ineffective assistance of trial counsel were not previously raised because postconviction counsel failed to raise them herself. See State ex rel. Rothering v. McCaughtry , 205 Wis. 2d 675, 677-78, 682, 556 N.W.2d 136 (Ct. App. 1996) (claims of ineffective assistance of trial counsel must be preserved prior to appeal by postconviction motion; ineffective assistance of postconviction counsel may "in some circumstances" constitute sufficient reason for not raising an issue).
¶ 5 However, because Ruehl's prior appeal was a no-merit appeal, he was free to raise any issues of his choosing in his response. See Anders v. California , 386 U.S. 738, 744 (1967). Postconviction counsel's failure to file a motion was not an obstacle to Ruehl raising ineffective assistance of trial counsel and, in fact, Ruehl's no-merit response did include such a claim. With his current motion, Ruehl simply fails to allege sufficient reason for not raising his current ineffective-assistance claims in his previous no-merit response.
¶ 6 Further, Ruehl cannot use a WIS. STAT. § 974.06 motion to re-raise claims, such as a challenge to the validity of his plea, that were previously disposed of by this court's prior decision, no matter how he recasts them. See State v. Walberg , 109 Wis. 2d 96, 103, 325 N.W.2d 687 (1982); State v. Witkowski , 163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991). Accordingly, the circuit court properly denied the motion without a hearing.
To the extent that Ruehl claims his ineffective-assistance claim was deemed waived by this court under State v. Bangert , 131 Wis. 2d 246, 293, 389 N.W.2d 12 (1986) (valid guilty plea waives nonjuridictional defects and defenses), we observe that although we concluded some of Ruehl's issues in his no-merit response were waived, we nevertheless specifically rejected his ineffective-assistance claim. See State v. Ruehl , No. 2005AP1973-CRNM, unpublished slip op. order, 4-5 (Dec. 14, 2005).
By the Court. — Order affirmed.
This opinion shall not be published. See WIS. STAT. RULE 809.23(1)(b)5.