Chapter 974

974.02 Annotation A claim of a constitutional right is waived unless timely raised in the trial court. Maclin v. State, 92 Wis. 2d 323, 284 N.W.2d 661 (1979).

974.02 Annotation A prerequisite to a claim on appeal of ineffective trial representation is preservation of trial counsel’s testimony at a postconviction hearing in which the representation is challenged. State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

974.02 Annotation A defendant’s escape during the pendency of postconviction motions constituted a forfeiture of the relief sought, and dismissal of the motion with prejudice was appropriate. State v. Braun, 185 Wis. 2d 152, 516 N.W.2d 740 (1994). But see Braun v. Powell, 77 F. Supp. 2d 973 (1999).

974.02 Annotation When new evidence is a recantation by a witness, the recantation must be sufficiently corroborated by other newly discovered evidence. State v. Terrance J.W., 202 Wis. 2d 496, 550 N.W.2d 445 (Ct. App. 1996), 95-3511.

974.02 Annotation The requirement of corroboration of a recantation as the basis of a post-sentencing motion to withdraw a guilty plea by other newly-found evidence is met if there is a feasible motive for the initial false statement when the motive was previously unknown and there are circumstantial guarantees of the trustworthiness of the recantation. State v. McCallum, 208 Wis. 2d 463, 561 N.W.2d 707 (1997), 95-1518.

974.02 Annotation If a court decision entered after the appellant’s conviction constitutes a new rule of substantive law, the appellant has not waived the right to seek postconviction relief based on the newly announced rule. State v. Howard, 211 Wis. 2d 269, 564 N.W.2d 753 (1997), 95-0770.

974.02 Annotation A motion for a new trial based on new evidence that after sentencing a codefendant claimed full responsibility for a murder, recanting her trial testimony that neither codefendant was involved, required corroboration of the newly discovered evidence and a finding that there was a reasonable probability that a jury considering the original trial testimony and later statements would have a reasonable doubt about the defendants’ guilt. State v. Mayo, 217 Wis. 2d 217, 579 N.W.2d 768 (Ct. App. 1998), 96-3656.

974.02 Annotation Plea withdrawal motions made prior to sentencing impose a lesser burden on the defendant than those made after. A motion based on new evidence requires showing by a preponderance of the evidence that: 1) the evidence was discovered after entry of the plea; 2) the defendant was not negligent in seeking the evidence; 3) the evidence is material to an issue in the case; and 4) the evidence is not merely cumulative. If the evidence is a witness recantation, the court must in addition determine that the recantation has reasonable indicia of reliability. State v. Kivioja, 225 Wis. 2d 271, 592 N.W.2d 220 (1999), 97-2932.

974.02 Annotation Newly discovered evidence does not include the new appreciation of the importance of evidence previously known but not used. A new expert opinion, based on facts available to the trial experts, falls within evidence that was previously known but not used. State v. Fosnow, 2001 WI App 2, 240 Wis. 2d 699, 624 N.W.2d 883, 00-0122.

974.02 Annotation A defendant must show by a preponderance of the evidence that there is a fair and just reason for allowing the withdrawal of a plea. An assertion of innocence is important but not dispositive. State v. Leitner, 2001 WI App 172, 247 Wis. 2d 195, 633 N.W.2d 207, 00-1718.

974.02 Annotation Affirmed on other grounds. 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341, 00-1718.

974.02 Annotation A challenge to the sufficiency of the evidence is different from other types of challenges not previously raised during trial, which justifies allowing a challenge to the sufficiency of the evidence to be raised on appeal as a matter of right despite the fact that the challenge was not raised in the circuit court. State v. Hayes, 2004 WI 80, 273 Wis. 2d 1, 681 N.W.2d 203, 02-1542.

974.02 Annotation For a new trial based on newly discovered evidence, the defendant must prove, by clear and convincing evidence, that: 1) the evidence was discovered after conviction; 2) the defendant was not negligent in seeking evidence; 3) the evidence is material to an issue in the case; and 4) the evidence is not merely cumulative. If the defendant meets this burden, the circuit court must determine whether a reasonable probability exists that a different result would be reached in a trial. State v. Armstrong, 2005 WI 119, 283 Wis. 2d 639, 700 N.W.2d 98, 01-2789.

974.02 Annotation After determining that both parties presented credible evidence in a motion for a new trial based on newly discovered evidence, it is not the court’s role to weigh the evidence. Instead, once the circuit court finds that newly discovered evidence is credible, it is required to determine whether there is a reasonable probability that a jury, hearing all evidence, would have a reasonable doubt as to the defendant’s guilt. This question is not answered by a determination that the state’s evidence is stronger. State v. Edmunds, 2008 WI App 33, 308 Wis. 2d 374, 746 N.W.2d 590, 07-0933.

974.02 Annotation Wisconsin affords a convicted person the right to postconviction counsel. It would be absurd to suggest that a person has a right to counsel at trial and on appeal, but no right to counsel at a postconviction proceeding in the circuit court, which is often the precursor to an appeal. However, a defendant does not have the right to be represented by: 1) an attorney the defendant cannot afford; 2) an attorney who is not willing to represent the defendant; 3) an attorney with a conflict of interest; or 4) an advocate who is not a member of the bar. State v. Peterson, 2008 WI App 140, 314 Wis. 2d 192, 757 N.W.2d 834, 07-1867.

974.02 Annotation In order to set aside a judgment of conviction based on newly discovered evidence, the newly discovered evidence must be material to an issue in the case. If evidence of third-party culpability would not be admissible at trial, then it could not be material to the issue of guilt or innocence. In order to present evidence and make argument suggesting that a third party may have committed the charged crime, a defendant must show that the third party had: 1) opportunity; 2) motive; and 3) a direct connection to the crime that is not remote in time, place, or circumstances. State v. Vollbrecht, 2012 WI App 90, 344 Wis. 2d 69, 820 N.W.2d 443, 11-0425.

974.02 Annotation In order to set aside a judgment of conviction based on newly discovered evidence, the newly discovered evidence must be sufficient to establish that a defendant’s conviction was a “manifest injustice.” When the defendant has proven the first four criteria of the newly discovered evidence analysis, it must then be determined whether a reasonable probability exists that had the jury heard the newly discovered evidence, it would have had a reasonable doubt as to the defendant’s guilt. State v. Vollbrecht, 2012 WI App 90, 344 Wis. 2d 69, 820 N.W.2d 443, 11-0425.

974.02 Annotation Kivioja, 225 Wis. 2d 271 (1999), did not change the law controlling post-sentence plea-withdrawal motions. It modified the McCallum, 208 Wis. 2d 463 (1997), rubric only for pre-sentence motions. State v. Ferguson, 2014 WI App 48, 354 Wis. 2d 253, 847 N.W.2d 900, 13-0099.

974.02 Annotation Because a transcript is crucial to the right to an appeal, courts provide additional protection for appellants when they do not have a complete transcript. Under Perry, 136 Wis. 2d 92 (1987), and DeLeon, 127 Wis. 2d 74 (Ct. App. 1985), when a trial transcript is incomplete, a defendant may be entitled to a new trial, but only after the defendant makes a facially valid claim of arguably prejudicial error. The Perry/DeLeon procedure applies even when the entire trial transcript is unavailable. The court does not presume prejudice when the trial transcript is unavailable. State v. Pope, 2019 WI 106, 389 Wis. 2d 390, 936 N.W.2d 606, 17-1720.

974.02 Annotation Newly-discovered evidence must generally be of a fact that is true at the time of trial. State v. Watkins, 2021 WI App 37, 398 Wis. 2d 558, 961 N.W.2d 884, 19-1996.

974.02 Annotation A defendant is entitled to a Machner, 92 Wis. 2d 797 (1979), hearing only when the defendant’s motion alleges sufficient facts, which if true, would entitle the defendant to relief. However, if the motion does not raise facts sufficient to entitle the defendant to relief, or if it presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing. In this case, the defendant’s counsel did not perform deficiently by withdrawing a request for a self-defense instruction, and the circuit court did not erroneously exercise its discretion by denying the defendant’s motion without an evidentiary hearing. State v. Ruffin, 2022 WI 34, 401 Wis. 2d 619, 974 N.W.2d 432, 19-1046. See also State v. Spencer, 2022 WI 56, 403 Wis. 2d 86, 976 N.W.2d 383, 18-0942; State v. Jackson, 2023 WI 3, 405 Wis. 2d 458, 983 N.W.2d 608, 20-2119.

974.02 Annotation When the court granted the defendant’s timely motion to file a successive postconviction motion and voluntarily dismiss the defendant’s first appeal, the defendant’s subsequent appeal of the denial of the defendant’s postconviction motion was not barred by Escalona-Naranjo, 185 Wis. 2d 168 (1994). State v. McReynolds, 2022 WI App 25, 402 Wis. 2d 175, 975 N.W.2d 265, 21-0943.

974.02 Annotation By moving for a new trial, a defendant does not waive the right to acquittal based on insufficiency of the evidence. Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).

974.02 Annotation When postconviction counsel failed to assert a claim of ineffective assistance of trial counsel in a postconviction motion under this section, 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).

974.02 Annotation After a conviction and sentencing in a Wisconsin criminal case, a defendant’s first avenue of relief is a postconviction motion under this section. In contrast to the practice in many other jurisdictions, claims of ineffective assistance of counsel may—and usually must—be raised at this postjudgment, preappeal stage of the proceedings. Garcia v. Cromwell, 28 F.4th 764 (2022).

974.02 Annotation Failure to petition the state supreme court for review precluded federal habeas corpus relief. Carter v. Gagnon, 495 F. Supp. 878 (1980).

974.02 Annotation Post-Conviction Remedies in the 1970’s. Eisenberg. 56 MLR 69 (1972).

974.02 Annotation Confusion in the Court—Wisconsin’s Harmless Error Rule in Criminal Appeals. Tess-Mattner. 63 MLR 643 (1980).

974.02 Annotation The Duties of Trial Counsel After Conviction. Eisenberg. WBB Apr. 1975.

974.05 974.05 State’s appeal.

974.05(1) (1) Within the time period specified by s. 808.04 (4) and in the manner provided for civil appeals under chs. 808 and 809, an appeal may be taken by the state from any:

974.05(1)(a) (a) Final order or judgment adverse to the state, whether following a trial or a plea of guilty or no contest, if the appeal would not be prohibited by constitutional protections against double jeopardy.

974.05(1)(b) (b) Order granting postconviction relief under s. 974.02, 974.06, or 974.07.

974.05(1)(c) (c) Judgment and sentence or order of probation not authorized by law.

974.05(1)(d) (d) Order or judgment the substantive effect of which results in:

974.05(1)(d)1. 1. Quashing an arrest warrant;

974.05(1)(d)2. 2. Suppressing evidence; or

974.05(1)(d)3. 3. Suppressing a confession or admission.

974.05(2) (2) If the defendant appeals or prosecutes a writ of error, the state may move to review rulings of which it complains, as provided by s. 809.10 (2) (b).

974.05(3) (3) Permission of the trial court is not required for the state to appeal, but the district attorney shall serve notice of such appeal or of the procurement of a writ of error upon the defendant or the defendant’s attorney.

974.05 History History: 1971 c. 298; Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1977 c. 187; 1983 a. 219; 1991 a. 39; 1993 a. 486; 2001 a. 16.

974.05 Annotation If the state appeals from an order suppressing evidence, the defendant can ask for a review of another part of the order, although the defendant could not appeal directly. State v. Beals, 52 Wis. 2d 599, 191 N.W.2d 221 (1971).

974.05 Annotation That the state can appeal from an order suppressing evidence, but the defendant cannot, does not show a denial of equal protection of the law. State v. Withers, 61 Wis. 2d 37, 211 N.W.2d 456 (1973).

974.05 Annotation The granting of a motion to withdraw a guilty plea is a final order appealable by the state. State v. Bagnall, 61 Wis. 2d 297, 212 N.W.2d 122 (1973).

974.05 Annotation The trial court’s setting aside of a jury finding of guilt and its dismissal of the information was not appealable by the state because it was a final judgment adverse to the state made after jeopardy had attached, and jeopardy was not waived; hence the judgment was not within those situations from which a state appeal is authorized by this section. State v. Detco, Inc., 66 Wis. 2d 95, 223 N.W.2d 859 (1974).

974.05 Annotation The trial court’s order specifying conditions of incarceration was neither a judgment nor a sentence under sub. (1) (c). State v. Gibbons, 71 Wis. 2d 94, 237 N.W.2d 33 (1976).

974.05 Annotation Under s. 808.03 (2), both the prosecution and defense may seek permissive appeals of nonfinal orders. State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980).

974.05 Annotation Sub. (1) (d) 2. authorizes the state to appeal an order suppressing a defendant’s oral statements. State v. Mendoza, 96 Wis. 2d 106, 291 N.W.2d 478 (1980).

974.05 Annotation Sub. (2) does not confine the right of cross-appeal to final judgments or orders. State v. Alles, 106 Wis. 2d 368, 316 N.W.2d 378 (1982).

974.05 Annotation The state may appeal as a matter of right any pretrial order barring admission of evidence that might “normally” determine the success of the prosecution’s case. State v. Eichman, 155 Wis. 2d 552, 456 N.W.2d 143 (1990).

974.05 Annotation This section does not prohibit the trial court from hearing a motion by the state to reconsider an order granting postconviction relief. A trial court has inherent power to vacate or modify an order pursuant to s. 807.03. State v. Brockett, 2002 WI App 115, 254 Wis. 2d 817, 647 N.W.2d 357, 01-1295.

974.05 Annotation A ruling that reduced a charge from operating while intoxicated (OWI) third offense to second offense was not appealable as a matter of right. Unlike a collateral challenge that would reduce an OWI charge from a fourth or greater offense to a third or lesser offense, the reduced number of prior convictions at issue in this case would not change the applicable prohibited alcohol level. The circuit court’s ruling would not require the state to present any different evidence at trial regarding the defendant’s actual level of intoxication that would prevent the successful prosecution of the current charge. State v. Knapp, 2007 WI App 273, 306 Wis. 2d 843, 743 N.W.2d 481, 07-1582.

974.06 974.06 Postconviction procedure.

974.06(1) (1) After the time for appeal or postconviction remedy provided in s. 974.02 has expired, a prisoner in custody under sentence of a court or a person convicted and placed with a volunteers in probation program under s. 973.11 claiming the right to be released upon the ground that the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

974.06(2) (2) A motion for such relief is a part of the original criminal action, is not a separate proceeding and may be made at any time. The supreme court may prescribe the form of the motion.

974.06(3) (3) Unless the motion and the files and records of the action conclusively show that the person is entitled to no relief, the court shall:

974.06(3)(a) (a) Cause a copy of the notice to be served upon the district attorney who shall file a written response within the time prescribed by the court.

974.06(3)(b) (b) If it appears that counsel is necessary and if the defendant claims or appears to be indigent, refer the person to the state public defender for an indigency determination and appointment of counsel under ch. 977.

974.06(3)(c) (c) Grant a prompt hearing.

974.06(3)(d) (d) Determine the issues and make findings of fact and conclusions of law. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the person as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the person or resentence him or her or grant a new trial or correct the sentence as may appear appropriate.

974.06(4) (4) All grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended motion.

974.06(5) (5) A court may entertain and determine such motion without requiring the production of the prisoner at the hearing. The motion may be heard under s. 807.13.

974.06(6) (6) Proceedings under this section shall be considered civil in nature, and the burden of proof shall be upon the person.

974.06(7) (7) An appeal may be taken from the order entered on the motion as from a final judgment.

974.06(8) (8) A petition for a writ of habeas corpus or an action seeking that remedy in behalf of a person who is authorized to apply for relief by motion under this section shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced the person, or that the court has denied the person relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his or her detention.

974.06 History History: 1971 c. 40 s. 93; 1977 c. 29, 187, 418; 1981 c. 289; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1991 a. 253.

974.06 Note Judicial Council Note, 1981: Sub. (8) has been amended to reflect the fact that habeas corpus relief is now available in an ordinary action in circuit court. See s. 781.01, stats., and the note thereto and s. 809.51, stats. [Bill 613-A]

974.06 Note Judicial Council Note, 1988: Sub. (5) is amended to allow postconviction motions under this section to be heard by telephone conference. [Re Order effective Jan. 1, 1988]

974.06 Annotation Discussing plea bargaining as a basis for withdrawal of a guilty plea and a new trial. State v. Wolfe, 46 Wis. 2d 478, 175 N.W.2d 216 (1970).

974.06 Annotation When the defendant makes a pro se motion within the time limited but counsel is not appointed until later, the court should hear the motion. A guilty plea can be withdrawn as a matter of right if it is established that: 1) there was a violation of a relevant constitutional right; 2) the violation caused the defendant to plead guilty; and 3) at the time of the guilty plea the defendant was unaware of potential constitutional challenges to the prosecution’s case because of that violation. State v. Carlson, 48 Wis. 2d 222, 179 N.W.2d 851 (1970).

974.06 Annotation A defendant’s contention that he concluded he was going to be sentenced under the Youth Service Act for no more than two years, whereas a 20-year sentence was imposed, constituted no grounds for withdrawal of the guilty plea when trial defense counsel asserted 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 the defendant that the lesser sentence would be imposed. State v. Froelich, 49 Wis. 2d 551, 182 N.W.2d 267 (1971).

974.06 Annotation The sentencing judge is not disqualified from conducting a hearing on a postconviction motion to withdraw a guilty plea unless the judge has interjected himself or herself into the plea bargaining to the extent that the judge may become a material witness or may otherwise be disqualified. Rahhal v. State, 52 Wis. 2d 144, 187 N.W.2d 800 (1971).

974.06 Annotation The defendant could not withdraw the defendant’s guilty plea after entering a plea bargain for a recommendation of a one-year sentence by the prosecutor when the presentence report recommended two years and the defendant did not object. Farrar v. State, 52 Wis. 2d 651, 191 N.W.2d 214 (1971).

974.06 Annotation Postconviction procedure cannot be used as a substitute for appeal. Trial errors such as insufficiency of evidence and instructions and errors in the admission of evidence cannot be raised. State v. Langston, 53 Wis. 2d 228, 191 N.W.2d 713 (1971).

974.06 Annotation A motion under this section is not a substitute for a motion for a new trial. The motion is limited in scope to matters of jurisdiction or of constitutional dimensions and must not be used to raise issues disposed of by a previous appeal. Peterson v. State, 54 Wis. 2d 370, 195 N.W.2d 837 (1972).

974.06 Annotation No hearing need be granted when the record refutes a defendant’s claims and they can be found to have no merit. Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972).

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 the defendant 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 motion under this section. 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 the defendant’s motion to be present at the hearing on the defendant’s motions under this section 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 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).