974.06 Annotation
Plea bargaining as a basis for withdrawal of guilty plea and a new trial discussed. State v. Wolfe,
46 Wis. 2d 478,
175 N.W.2d 216.
974.06 Annotation
Where defendant made a pro se motion within the time limited but counsel was not appointed until later, the court should hear the motion. He can withdraw a guilty plea as a matter of right if he establishes: (1) That there occurred a violation of a relevant constitutional right; (2) that this violation caused him to plead guilty; and (3) that at the time of his guilty plea he was unaware of potential constitutional challenges to the prosecution's case against him because of that violation. State v. Carlson,
48 Wis. 2d 222,
179 N.W.2d 851.
974.06 Annotation
Defendant's contention that he concluded he was going to be sentenced under the Youth Service Act and would be incarcerated for no more than 2 years, whereas a 20-year sentence was imposed (assuming verity), constituted no grounds for withdrawal of the guilty plea, his trial defense counsel asserting at the postconviction hearing that such a sentence was a desired objective but that no agreement had been made with the district attorney that it could be achieved nor representation made to his client that the lesser sentence would be imposed. State v. Froelich,
49 Wis. 2d 551,
182 N.W.2d 267.
974.06 Annotation
The sentencing judge is not disqualified from conducting a hearing on a postconviction motion to withdraw a guilty plea unless he has interjected himself in the plea bargaining to the extent he may become a material witness or otherwise disqualify himself. Rahhal v. State,
52 Wis. 2d 144,
187 N.W.2d 800.
974.06 Annotation
After a plea bargain for a recommendation of a one-year sentence by the prosecutor, where a presentence report recommended 2 years and defendant did not object, he cannot then withdraw his guilty plea. Farrar v. State,
52 Wis. 2d 651,
191 N.W.2d 214.
974.06 Annotation
Postconviction procedure cannot be used as a substitute for appeal; trial errors such as sufficiency of the evidence, instructions and errors in admission of evidence cannot be raised. State v. Langston,
53 Wis. 2d 228,
191 N.W.2d 713.
974.06 Annotation
No hearing need be granted where the record refutes defendant's claims and they can be found to have no merit. Nelson v. State,
54 Wis. 2d 489,
195 N.W.2d 629.
974.06 Annotation
This section is not a remedy for an ordinary rehearing or reconsideration of sentencing on its merits. Only constitutional and jurisdictional questions may be raised. This section may be used to review sentences and convictions regardless of the date of prosecution. State ex rel. Warren v. County Court,
54 Wis. 2d 613,
197 N.W.2d 1.
974.06 Annotation
A petition under this section is limited to jurisdictional and constitutional issues; it is not a substitute for a motion for a new trial. Vara v. State,
56 Wis. 2d 390,
202 N.W.2d 10.
974.06 Annotation
When a defendant is informed that he might receive a maximum sentence of 20 years on an attempted murder charge and is then sentenced to 25 years, the sentence will be reduced to 20 years. Preston v. State,
58 Wis. 2d 728,
206 N.W.2d 619.
974.06 Annotation
The question of sufficiency of the evidence cannot be reached by a motion under this section; the utter failure to produce any evidence could be, because conviction without evidence of guilt would be a denial of due process. Weber v. State,
59 Wis. 2d 371,
208 N.W.2d 396.
974.06 Annotation
A motion for postconviction relief may be denied without a hearing if defendant fails to allege sufficient facts to raise a question of fact or presents only conclusory allegations, or the record conclusively demonstrates that he is not entitled to relief. Where multiple grounds for relief are claimed, particularized rulings as to each are to be made in denying the motion without an evidentiary hearing. Smith v. State,
60 Wis. 2d 373,
210 N.W.2d 678.
974.06 Annotation
Objection to the arrest, insufficiency of the complaint, or the use of illegal means to obtain evidence may not be raised for the first time under this section, in view of 971.31 (2). State v. Kuecey,
60 Wis. 2d 677,
211 N.W.2d 453.
974.06 Annotation
When a defendant, ordered to be present at a hearing under this section, escapes prison, the court may summarily dismiss the petition. State v. John,
60 Wis. 2d 730,
211 N.W.2d 463.
974.06 Annotation
An appeal from an order under this section in a misdemeanor case must be to the circuit court. State v. Brice,
61 Wis. 2d 397,
212 N.W.2d 596.
974.06 Annotation
The supreme court as a caveat points out that it does not encourage the assignment of members of the prosecutor's staff to review petitions for postconviction relief. Holmes v. State,
63 Wis. 2d 389,
217 N.W.2d 657.
974.06 Annotation
The facts must be alleged in the petition and the petitioner cannot stand on conclusory allegations, hoping to supplement them at a hearing. Levesque v. State,
63 Wis. 2d 412,
217 N.W.2d 317.
974.06 Annotation
The failure to establish a factual basis for a guilty plea is of constitutional dimensions and is the type of error which can be reached by a 974.06 motion. Loop v. State,
65 Wis. 2d 499,
222 N.W.2d 694.
974.06 Annotation
The necessity or desirability of the presence of defendant at a hearing on postconviction motions is a matter of discretion for the trial court and depends upon the existence of substantial issues of fact; hence, there was no abuse of discretion in denial of defendant's motion to be present at the hearing on his 974.06 motions where only issues of law were raised and defense counsel had other opportunities to consult with his client. Sanders v. State,
69 Wis. 2d 242,
230 N.W.2d 845.
974.06 Annotation
Although the allegation that defendant was sick from extensive use of amphetamines at the time of his confession finds no support in the record of the original proceedings, a silent record does not conclusively show a defendant is entitled to no relief, and where defendant refuted his earlier statement that no promises were made to induce his confession other than that he would not have to go to jail that day and alleged a promise of probation, an issue of fact was presented requiring an evidentiary hearing. Zuehl v. State,
69 Wis. 2d 355,
230 N.W.2d 673.
974.06 Annotation
In an appeal via writ of error to review a sentence for forgery consisting of an 8-year prison term with the additional requirement that restitution be made, the supreme court, while reaching the merits, determines that henceforth the procedures made applicable by the postconviction relief statute shall be the exclusive procedure utilized to seek correction of an allegedly unlawful sentence. Spannuth v. State,
70 Wis. 2d 362,
234 N.W.2d 79.
974.06 Annotation
State courts do not have subject-matter jurisdiction over postconviction motion of federal prisoner not in custody under the sentence of a state court. State v. Theoharopoulos,
72 Wis. 2d 327,
240 N.W.2d 635.
974.06 Annotation
Double jeopardy clause prohibits increase of valid sentence to offset erroneously lenient sentence. State v. North,
91 Wis. 2d 507,
283 N.W.2d 457 (Ct. App. 1979).
974.06 Annotation
Issue considered on direct review cannot be reconsidered on motion under this section. Beamon v. State,
93 Wis. 2d 215,
286 N.W.2d 592 (1980).
974.06 Annotation
A court had no jurisdiction under this section, to hear a challenge of the computation of prisoner's good time. Habeas corpus is the proper avenue of relief. State v. Johnson,
101 Wis. 2d 698,
305 N.W.2d 188 (Ct. App. 1981).
974.06 Annotation
Power of circuit court to stay execution of sentence for legal cause does not include power to stay sentence while collateral attack is being made on conviction by habeas corpus proceeding in federal court. State v. Shumate,
107 Wis. 2d 460,
319 N.W.2d 834 (1982).
974.06 Annotation
Defendant's uncorroborated allegations will not support claim of ineffective representation where counsel is unavailable to rebut claim of ineffectiveness. State v. Lukasik,
115 Wis. 2d 134,
340 N.W.2d 62 (Ct. App. 1983).
974.06 Annotation
Formal violation of 971.08 may not be remedied under this section. Motions under this section are limited to jurisdictional and constitutional matters. State v. Carter,
131 Wis. 2d 69,
389 N.W.2d 1 (1986).
974.06 Annotation
While trial court's failure to submit lesser-included offense instruction to jury would probably result in reversal upon timely direct appeal, error is not of constitutional proportion entitling defendant to pursue relief under this section. State v. Nicholson,
148 Wis. 2d 353,
435 N.W.2d 298 (Ct. App. 1988).
974.06 Annotation
Defendant challenging sentence on due process grounds based upon failure to receive copy of presentence investigation report is entitled to hearing only upon showing that the court had blanket policy of denial of access and policy was specifically applied to defendant, or that before sentencing plea defendant personally sought access and was denied it. State v. Flores,
158 Wis. 2d 636,
462 N.W.2d 899 (Ct. App. 1990).
974.06 Annotation
Defendant's death did not moot 974.06 motion or appeal of its denial. State v. Witkowski,
163 Wis. 2d 985,
473 N.W.2d 512 (Ct. App. 1991).
974.06 Annotation
Court should permit post sentencing withdrawal of guilty or no contest only to correct "manifest injustice". State v. Krieger,
163 Wis. 2d 241,
471 N.W.2d 599 (Ct. App. 1991).
974.06 Annotation
Where a defendant is represented by the same attorney at trial and after conviction, the attorney's inability to assert his or her own ineffectiveness is a sufficient reason under sub. (4) for not asserting the matter in the original s. 974.06 motion. State v. Robinson,
177 Wis. 2d 46,
501 N.W.2d 831 (Ct. App. 1993).
974.06 Annotation
When a defendant must be present for a postconviction evidentiary hearing, the use of a telephone hearing is not authorized. State v. Vennemann,
180 Wis. 2d 81,
508 N.W.2d 404 (1993).
974.06 Annotation
A defendant is prohibited from raising a constitutional issue on s. 974.06 motion if the claim could have been raised in a previously filed s. 974.02 motion or a direct appeal. State v. Escalona-Naranjo,
185 Wis. 2d 169,
517 N.W.2d 157 (1994).
974.06 Annotation
Generally new rules of law will not be applied retroactively to cases on collateral review under this section. State v. Horton,
195 Wis. 2d 280,
536 N.W.2d 155 (Ct. App. 1995).
974.06 Annotation
A motion may not be filed under this section while an appeal of the same case is pending. Where an appeal has not been resolved, the time for appeal under sub. (1) has not expired. State v. Redmond,
203 Wis. 2d 13,
552 N.W.2d 115 (Ct. App. 1996).
974.06 Annotation
The Escanalona-Naranjo rule that a prisoner is compelled to raise in an original motion all grounds for postconviction relief that could have all been brought at the same time is extended to appeals by certiorari from parole and probation revocation hearings. State ex re. Macemon v. Christie,
216 Wis. 2d 336,
576 N.W.2d 84 (Ct. App. 1998).
974.06 Annotation
Subject to any other bars, all defendants on probation have standing to pursue postconviction relief under this section. State v. Mentzel,
218 Wis. 2d 734,
581 N.W.2d 581 (Ct. App. 1998)
974.06 Annotation
Section 973.13 commands that all sentences in excess of that authorized by law be declared void, including the repeater portion of a sentence. Prior postconviction motions that failed to challenge the validity of the sentence do not bar seeking relief from faulty repeater sentences. State v. Flowers,
221 Wis. 2d 20,
586 N.W.2d 175 (Ct. App. 1998).
974.06 Annotation
A motion to modify a sentence under this section, due to an improperly entered restitution order, does not allow granting a money judgment against the state for the recovery of improperly collected restitution under the improper sentence. State v. Minniecheske,
223 Wis. 2d 493,
590 N.W.2d 17 (Ct. App. 1998).
974.06 Annotation
Because individual has no underlying constitutional right to appointed counsel in state collateral postconviction proceedings, individual may not insist upon implementation of Anders v. California,
386 U.S. 738, procedures. Pennsylvania v. Finley,
481 U.S. 551 (1987).
974.06 Annotation
Review procedures provided by this statute are entirely adequate and must be employed before state remedies will be considered exhausted for purposes of federal habeas corpus statute. Bergenthal v. Mathews,
392 F. Supp. 1267.
974.06 Annotation
Postconviction remedies in the 1970's. Eisenberg, 56 MLR 69.
974.06 Annotation
The duties of trial counsel after conviction. Eisenberg, 1975 WBB No. 2.
974.06 Annotation
Wisconsin postconviction remedies. 1970 WLR 1145.
974.06 Annotation
Postconviction procedure; custody requirements. 1971 WLR 636.
974.06 Annotation
State v. Escalona-Naranjo: A Limitation on Criminal Appeals in Wisconsin? Hunt. 1997 WLR 207.
