COURT OF APPEALS
DATED AND FILED
March 15, 2011
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
A. John Voelker
Acting Clerk of Court of Appeals
Cir. Ct. No. 2002CF5886
STATE OF WISCONSIN
IN COURT OF APPEALS
STATE OF WISCONSIN,
CHARLES M. STAR,
APPEAL from an order of the circuit court for Milwaukee County:
DANIEL L. KONKOL, Judge. Affirmed.
Before Curley, P.J., Kessler, and Brennan, JJ.
Charles M. Star, pro se, appeals an order denying
his motion for postconviction relief under WIS. STAT. § 974.06 (2009-10).1 Star
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise
argues: (1) that he received ineffective assistance of counsel because his attorney
did not raise issues before the circuit court that Star believes had merit; (2) that the
circuit court misused its discretion in refusing to allow him to raise additional
issues when he tried to do so the day of the hearing; and (3) that we should reverse
his conviction under WIS. STAT. § 752.35. We affirm.
Star first argues that he received ineffective assistance of counsel
when he was litigating this motion in the circuit court. Star filed this pro se
motion to withdraw his guilty plea pursuant to WIS. STAT. § 974.06 because the
time for pursuing a direct appeal from his 2002 conviction had long elapsed and
the State Public Defender refused to appoint counsel. After the motion was filed,
the circuit court appointed Attorney Paul Bonneson to represent Star at county
expense. Even though Attorney Bonneson was appointed by the court, Star did
not have a right to representation by counsel, as he would have had this been a
direct appeal. See State v. Evans, 2004 WI 84, ¶32, 273 Wis. 2d 192, 682 N.W.2d
784 (“There is no constitutional right to counsel on a § 974.06 motion.”). Because
Star did not have the right to counsel, he did not have a constitutional right to the
effective assistance of counsel. See Coleman v. Thompson, 501 U.S. 722, 752
(1991) (“[W]here there is no constitutional right to counsel there can be no
deprivation of effective assistance.”). Therefore, we reject this argument.
Star next argues that the circuit court erred when it refused to allow
him to belatedly raise additional issues. The morning of the Machner2 hearing,
Star explained to the court that he wanted to raise several issues that his attorney
had not raised. The circuit court explained to Star that he had a right to proceed
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
with counsel’s assistance, in which case Star would have to let counsel decide
which issues to raise, or he had a right to proceed without counsel’s assistance and
raise whatever issues he would like to raise. After a lengthy discussion, Star
decided to proceed with counsel’s assistance. Because Star chose to proceed with
the assistance of counsel, he had no right to raise additional pro se issues. See
State v. Redmond, 203 Wis. 2d 13, 17, 552 N.W.2d 115 (Ct. App. 1996) (“If a
defendant elects to be represented by counsel, that precludes simultaneous pro se
activity.”). We reject this argument.
Finally, Star argues that we should reverse his underlying judgment
of conviction from 2002 under WIS. STAT. § 752.35. It is well-established that
“[o]ur power of discretionary reversal under sec. 752.35 … may be exercised only
in direct appeals from judgments or orders.” State v. Allen, 159 Wis. 2d 53, 55,
464 N.W.2d 426 (Ct. App. 1990). That statute does not allow us to exercise our
power of discretionary reversal to reverse a motion for postconviction relief under
WIS. STAT. § 974.06. Therefore, we reject this argument.3
By the Court.—Order affirmed.
This opinion will not be published.
See WIS. STAT. RULE
After briefing was complete, Star filed a motion to vacate the DNA surcharge it
imposed against him. See State v. Cherry, 2008 WI App 80, 312 Wis. 2d 203, 752 N.W.2d 393.
Because the circuit court imposed this surcharge, Star must file this motion to vacate the
surcharge with the circuit court, not this court.