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 (1972).
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 (1972).
974.06 Annotation
A question of sufficiency of the evidence cannot be reached by a motion under this section. The complete failure to produce any evidence could be reached, 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 (1973).
974.06 Annotation
A motion for postconviction relief may be denied without a hearing if the defendant fails to allege sufficient facts to raise a question of fact or presents only conclusory allegations, or the record conclusively demonstrates that he or she is not entitled to relief. If 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 (1973).
974.06 Annotation
In view of s, 971.31 (2), objection to an 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. State v. Kuecey,
60 Wis. 2d 677,
211 N.W.2d 453 (1973).
974.06 Annotation
When a defendant, ordered to be present at a hearing under this section, escapes from prison, the court may summarily dismiss the petition. State v. John,
60 Wis. 2d 730,
211 N.W.2d 463 (1973).
974.06 Annotation
The supreme court 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 (1974).
974.06 Annotation
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 (1974).
974.06 Annotation
The failure to establish a factual basis for a guilty plea is of constitutional dimensions and is the type of error that can be reached by a s. 974.06 motion. Loop v. State,
65 Wis. 2d 499,
222 N.W.2d 694 (1974).
974.06 Annotation
The necessity or desirability of the presence of the 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. There was no abuse of discretion in the denial of defendant's motion to be present at the hearing on his s. 974.06 motions when only issues of law were raised and defense counsel had other opportunities to consult with the defendant. Sanders v. State,
69 Wis. 2d 242,
230 N.W.2d 845 (1975).
974.06 Annotation
Although the defendant's allegation had no support in the record of the original proceedings, a silent record did not conclusively show that the defendant was not entitled to no relief. When the 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 (1975).
974.06 Annotation
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 (1975).
974.06 Annotation
State courts do not have subject-matter jurisdiction over postconviction motions of federal prisoners not in custody under the sentence of a state court. State v. Theoharopoulos,
72 Wis. 2d 327,
240 N.W.2d 635 (1976).
974.06 Annotation
An issue considered on direct review cannot be reconsidered on a 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
The power of a circuit court to stay the execution of a sentence for legal cause does not include the power to stay the sentence while a collateral attack is being made on the conviction by a habeas corpus proceeding in federal court. State v. Shumate,
107 Wis. 2d 460,
319 N.W.2d 834 (1982).
974.06 Annotation
The burden of proof under sub. (6) is clear and convincing evidence. State v. Walberg,
109 Wis. 2d 96,
325 N.W.2d 687 (1982).
974.06 Annotation
A defendant's uncorroborated allegations will not support a claim of ineffective representation when counsel is unavailable to rebut the claim of ineffectiveness. State v. Lukasik,
115 Wis. 2d 134,
340 N.W.2d 62 (Ct. App. 1983).
974.06 Annotation
Formal violation of s. 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 a trial court's failure to submit a lesser-included offense instruction to jury would probably result in reversal upon timely direct appeal, the error is not of constitutional proportion entitling a 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
A defendant challenging a sentence on due process grounds based upon a failure to receive a copy of the presentence investigation report is entitled to a hearing only upon showing that the court had a blanket policy of denial of access and the policy was specifically applied to the defendant, or that before sentencing the 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
A defendant's death did not moot a motion under s. 974.06 or the appeal of its denial. State v. Witkowski,
163 Wis. 2d 985,
473 N.W.2d 512 (Ct. App. 1991).
974.06 Annotation
A court should permit post sentencing withdrawal of a guilty or no contest plea only to correct a "manifest injustice." State v. Krieger,
163 Wis. 2d 241,
471 N.W.2d 599 (Ct. App. 1991).
974.06 Annotation
If 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 a motion under s. 974.06 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 168,
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),
93-3380.
974.06 Annotation
A motion may not be filed under this section while an appeal of the same case is pending. When 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),
94-1544.
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 rel. Macemon v. Christie,
216 Wis. 2d 337,
576 N.W.2d 84 (Ct. App. 1998),
97-0660.
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),
97-1814.
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),
97-3682.
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),
98-1369.
974.06 Annotation
Whether a claim that newly discovered evidence entitles a probation revokee to an evidentiary hearing to determine whether a new probation revocation hearing should be conducted shall be governed by procedures analogous to those in criminal cases. Booker v. Schwarz,
2004 WI App 50,
270 Wis. 2d 745,
678 N.W.2d 361,
03-0217.
974.06 Annotation
Trial courts may correct obvious errors in sentences when it is clear that a good faith mistake was made in an initial sentencing pronouncement, the court promptly recognizes the error, and the court, by reducing an erroneous original sentence on one count and increasing the original sentence on another, seeks to impose a lawfully structured sentence that achieves the overall disposition the court originally intended. State v. Gruetzmacher,
2004 WI 55,
271 Wis. 2d 585,
679 N.W.2d 533,
02-3014.
974.06 Annotation
A hearing on a postconviction motion is required only when the movant states sufficient material facts that, if true, would entitle the defendant to relief. The mere assertion of a claim of manifest injustice, in this case the ineffective assistance of counsel, does not entitle a defendant to the granting of relief. State v. Allen,
2004 WI 106,
274 Wis. 2d 568,
682 N.W.2d 433,
02-2555.
974.06 Annotation
When a defendant's postconviction issues have been addressed by the no merit procedure under s. 809.32, the defendant may not thereafter again raise those issues or other issues that could have been raised in a previous postconviction motion under s. 974.06, absent the defendant demonstrating a sufficient reason for failing to raise those issues previously. State v. Tillman,
2005 WI App 71,
281 Wis. 2d 157,
696 N.W.2d 574,
04-0966.
974.06 Annotation
This section and
Escalona-Naranjo preclude a defendant from pursuing claims in a subsequent appeal that could have been raised in his or her direct appeal, unless the defendant provides sufficient reason for failure to raise the claims in the first instance. That the appeal was dismissed pursuant to s. 809.83 (2) does not change the result. State v. Thames,
2005 WI App 101,
281 Wis. 2d 772,
700 N.W.2d 285,
04-1257.
974.06 Annotation
A defendant is not required to file a response to the no-merit report under s. 809.32, but the fact that a defendant does not file a response to a no-merit report is not, by itself, a sufficient reason to permit the defendant to raise new claims under s. 974.06. Defendants must show a sufficient reason for failing to raise an issue in a response to a no-merit report because the court will have performed an examination of the record and determined any issues noted or any issues that are apparent to be without arguable merit. State v. Allen,
2010 WI 89,
328 Wis. 2d 1,
786 N.W.2d 124,
07-0795.
974.06 Annotation
A defendant gets review of issues not raised only if the court of appeals follows the no-merit protocol. If the no-merit procedure was followed, then it is irrelevant whether the defendant raised his or her claims. He or she got review of those claims from the court of appeals, and he is barred from raising them again. If it was not followed, it is similarly irrelevant whether the claims were raised. The failure to raise them may or may not have contributed to the court of appeals' failure to identify issues of arguable merit, but the court of appeals and appellate counsel should have found them and the defendant may not be barred from bringing an motion under s. 974.06 if the no-merit procedure was not followed. State v. Allen,
2010 WI 89,
328 Wis. 2d 1,
786 N.W.2d 124,
07-0795.
974.06 Annotation
If the court of appeals fails to discuss an issue of actual or arguable merit, the defendant has the opportunity to file: 1) a motion for reconsideration of the decision under s. 809.32 (1); 2) a petition for review with the supreme court; or 3) an immediate s. 974.06 motion, identifying any issue of arguable merit that was overlooked and, in the latter instance, explaining why nothing was said in a response to the no-merit report. Delay in these circumstances can seldom be justified. Failure of a defendant to respond to both a no-merit report and the decision on the no-merit report firms up the case for forfeiture of any issue that could have been raised. State v. Allen,
2010 WI 89,
328 Wis. 2d 1,
786 N.W.2d 124,
07-0795.
974.06 Annotation
While a postconviction motion under this section is not subject to the time limits set forth in s. 809.30 or 973.19, a s. 974.06 motion is limited to constitutional and jurisdictional challenges. It cannot be used to challenge a sentence based on an erroneous exercise of discretion when a sentence is within the statutory maximum or otherwise within the statutory power of the court. State v. Nickel,
2010 WI App 161,
330 Wis. 2d 750,
794 N.W.2d 765,
09-1399.
974.06 Annotation
There is no exception for postconviction discovery motions to the
Escalona-Naranjo rule requiring criminal defendants to consolidate their postconviction claims into a single appeal absent a sufficient reason. State v. Kletzien,
2011 WI App 22,
331 Wis. 2d 640,
794 N.W.2d 920,
10-0296.
974.06 Annotation
Sentence modification and postconviction relief under this section are separate proceedings such that filing one does not result in a waiver of the other. State v. Melton,
2013 WI 65,
349 Wis. 2d 48,
834 N.W.2d 345,
11-1770.
974.06 Annotation
A claim for ineffective assistance of postconviction counsel must be filed with the circuit court, either as a motion under this section or as a petition for a writ of habeas corpus. A defendant arguing ineffective assistance of appellate counsel, conversely, may not seek relief under this section and must instead petition the court of appeals for a writ of habeas corpus. State v. Starks,
2013 WI 69,
349 Wis. 2d 274,
833 N.W.2d 146,
10-0425.
974.06 Annotation
A defendant who alleges in a motion under this section that his or her postconviction counsel was ineffective for failing to bring certain viable claims must demonstrate that the claims he or she wishes to bring are clearly stronger than the claims postconviction counsel actually brought. However, in evaluating the comparative strength of the claims, reviewing courts should consider any objectives or preferences that the defendant conveyed to his attorney. A claim's strength may be bolstered if a defendant directed his attorney to pursue it. State v. Romero-Georgana,
2014 WI 83, ___ Wis. 2d ___,
849 N.W.2d 668,
12-0055.
974.06 Annotation
Because an individual has no underlying constitutional right to appointed counsel in state collateral postconviction proceedings, an 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
When postconviction counsel failed to assert a claim of ineffective assistance of trial counsel in a postconviction motion under s. 974.02, the defendant's opportunity to argue that claim on direct appeal was foreclosed. The appropriate forum for asserting ineffective assistance of postconviction counsel for failure to raise ineffective assistance of trial counsel was in a collateral motion under s. 974.06. Page v. Frank,
343 F.3d 901 (2003).
974.06 Annotation
This section does not constitute direct review for purposes of calculating the date in which a judgment became final by the conclusion of direct review or the expiration of the time for seeking such review under 28 U.S.C. 2244(d)(1)(A). This section is, in fact, a statute addressing collateral relief. Graham v. Borgen,
483 F.3d 475 (2007).
974.06 Annotation
Section 974.06 motions challenging the effectiveness of appellate counsel should be filed directly in the court of appeals. But, s. 974.06 motions challenging the effectiveness of appellate counsel on the grounds that appellate counsel should have challenged trial counsel's effectiveness should be filed in the trial court. Morales v. Lundquist,
580 F.3d 653 (2009).
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.
974.06 Annotation
New Laws Reflect the Power and Potential of DNA. Findley. Wis. Law. May, 2002.
974.07
974.07
Motion for postconviction deoxyribonucleic acid testing of certain evidence. 974.07(1)(a)
(a) "Government agency" means any department, agency, or court of the federal government, of this state, or of a city, village, town, or county in this state.
974.07(1)(b)
(b) "Movant" means a person who makes a motion under
sub. (2).
974.07(2)
(2) At any time after being convicted of a crime, adjudicated delinquent, or found not guilty by reason of mental disease or defect, a person may make a motion in the court in which he or she was convicted, adjudicated delinquent, or found not guilty by reason of mental disease or defect for an order requiring forensic deoxyribonucleic acid testing of evidence to which all of the following apply:
974.07(2)(a)
(a) The evidence is relevant to the investigation or prosecution that resulted in the conviction, adjudication, or finding of not guilty by reason of mental disease or defect.
974.07(2)(b)
(b) The evidence is in the actual or constructive possession of a government agency.
974.07(2)(c)
(c) The evidence has not previously been subjected to forensic deoxyribonucleic acid testing or, if the evidence has previously been tested, it may now be subjected to another test using a scientific technique that was not available or was not utilized at the time of the previous testing and that provides a reasonable likelihood of more accurate and probative results.
974.07(3)
(3) A movant or, if applicable, his or her attorney shall serve a copy of the motion made under
sub. (2) on the district attorney's office that prosecuted the case that resulted in the conviction, adjudication, or finding of not guilty by reason of mental disease or defect. The court in which the motion is made shall also notify the appropriate district attorney's office that a motion has been made under
sub. (2) and shall give the district attorney an opportunity to respond to the motion. Failure by a movant to serve a copy of the motion on the appropriate district attorney's office does not deprive the court of jurisdiction and is not grounds for dismissal of the motion.
974.07(4)(a)(a) The clerk of the circuit court in which a motion under
sub. (2) is made shall send a copy of the motion and, if a hearing on the motion is scheduled, a notice of the hearing to the victim of the crime or delinquent act committed by the movant, if the clerk is able to determine an address for the victim. The clerk of the circuit court shall make a reasonable attempt to send the copy of the motion to the address of the victim within 7 days of the date on which the motion is filed and shall make a reasonable attempt to send a notice of hearing, if a hearing is scheduled, to the address of the victim, postmarked at least 10 days before the date of the hearing.
974.07(4)(b)
(b) Notwithstanding the limitation on the disclosure of mailing addresses from completed information cards submitted by victims under
ss. 51.37 (10) (dx),
301.046 (4) (d),
301.048 (4m) (d),
301.38 (4),
302.105 (4),
304.06 (1) (f),
304.063 (4),
938.51 (2),
971.17 (6m) (d), and
980.11 (4), the department of corrections, the parole commission, and the department of health services shall, upon request, assist clerks of court in obtaining information regarding the mailing address of victims for the purpose of sending copies of motions and notices of hearings under
par. (a).
974.07(5)
(5) Upon receiving under
sub. (3) a copy of a motion made under
sub. (2) or notice from a court that a motion has been made, whichever occurs first, the district attorney shall take all actions necessary to ensure that all biological material that was collected in connection with the investigation or prosecution of the case and that remains in the actual or constructive custody of a government agency is preserved pending completion of the proceedings under this section.
974.07(6)(a)(a) Upon demand the district attorney shall disclose to the movant or his or her attorney whether biological material has been tested and shall make available to the movant or his or her attorney the following material:
974.07(6)(a)2.
2. Physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material.
974.07(6)(b)
(b) Upon demand the movant or his or her attorney shall disclose to the district attorney whether biological material has been tested and shall make available to the district attorney the following material:
974.07(6)(c)
(c) Upon motion of the district attorney or the movant, the court may impose reasonable conditions on availability of material requested under
pars. (a) 2. and
(b) 2. in order to protect the integrity of the evidence.
974.07(6)(d)
(d) This subsection does not apply unless the information being disclosed or the material being made available is relevant to the movant's claim at issue in the motion made under
sub. (2).
974.07(7)(a)(a) A court in which a motion under
sub. (2) is filed shall order forensic deoxyribonucleic acid testing if all of the following apply:
974.07(7)(a)1.
1. The movant claims that he or she is innocent of the offense at issue in the motion under
sub. (2).
974.07(7)(a)2.
2. It is reasonably probable that the movant would not have been prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense at issue in the motion under
sub. (2), if exculpatory deoxyribonucleic acid testing results had been available before the prosecution, conviction, finding of not guilty, or adjudication for the offense.
974.07(7)(a)4.
4. The chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect or, if the chain of custody does not establish the integrity of the evidence, the testing itself can establish the integrity of the evidence.
974.07(7)(b)
(b) A court in which a motion under
sub. (2) is filed may order forensic deoxyribonucleic acid testing if all of the following apply:
974.07(7)(b)1.
1. It is reasonably probable that the outcome of the proceedings that resulted in the conviction, the finding of not guilty by reason of mental disease or defect, or the delinquency adjudication for the offense at issue in the motion under
sub. (2), or the terms of the sentence, the commitment under
s. 971.17, or the disposition under
ch. 938, would have been more favorable to the movant if the results of deoxyribonucleic acid testing had been available before he or she was prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense.
