State v. Harvey Lee Brown

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COURT OF APPEALS DECISION DATED AND FILED December 22, 2009 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. David R. Schanker Clerk of Court of Appeals Appeal No. NOTICE Cir. Ct. No. 2003CF3557 2008AP2883 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, V. HARVEY LEE BROWN, DEFENDANT-APPELLANT. APPEAL from an order of the circuit court for Milwaukee County: M. JOSEPH DONALD, Judge. Affirmed. Before Fine, Kessler and Brennan, JJ. ¶1 PER CURIAM. his postconviction motion. Harvey Lee Brown appeals from an order denying The issues are whether appellate counsel was ineffective for failing to thoroughly examine and present the is[s]ues in his no merit report, and for failing to allege trial counsel s ineffectiveness; Brown No. 2008AP2883 additionally contends this court erred when it failed to remand this matter on direct appeal for a Machner hearing to litigate trial counsel s alleged ineffectiveness, and for directing appellate counsel to respond to matters that were not in the appellate record.1 We conclude that most of Brown s allegations are procedurally barred either because they have already been decided on direct appeal, or because they should have been raised on direct appeal; appellate counsel s alleged ineffectiveness in examining and presenting the issues in the no-merit appeal is rejected because this court is obliged to independently review the record to search for every issue of arguable merit incident to the no-merit procedure, and we are empowered to extend the deadline of WIS. STAT. RULE 809.32(1)(f) (2005-06).2 Therefore, we affirm. ¶2 A jury found Brown guilty of three counts of armed robbery with the threat of force. The trial court imposed three concurrent thirty-five-year sentences, each comprised of twenty-five- and ten-year respective periods of initial confinement and extended supervision. Brown filed a postconviction motion alleging prosecutorial misconduct that was scheduled for an evidentiary hearing. The lay witness in support of Brown s motion however, failed to appear for the hearing. The trial court denied the motion. ¶3 Appellate counsel pursued a no-merit appeal. Brown responded to counsel s report and raised concerns that were outside of the record; to understand those concerns, we directed appellate counsel to reply to Brown s response. 1 A Machner hearing is an evidentiary hearing to determine trial counsel s effectiveness. See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979). 2 All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted. 2 No. 2008AP2883 ¶4 In a no-merit appeal, the appellate court is obliged to independently search the record for issues of arguable merit. See Anders v. California, 386 U.S. 738, 744-45 (1967). Our review is not limited by those potential issues and concerns raised by counsel and by the appellant personally. See id. We are satisfied that we met our obligation in following the no-merit procedures. See id.; State v. Tillman, 2005 WI App 71, ¶20, 281 Wis. 2d 157, 696 N.W.2d 574. It is therefore inconsequential whether appellate counsel thoroughly examine[d] and present[ed] the is[s]ues in his no merit report. ¶5 Many of Brown s concerns involved the claimed ineffective assistance of trial counsel. We extensively addressed those concerns, and many others, and ultimately determined, incident to our obligation to independently review the record, that further proceedings would lack arguable merit. See Anders, 386 U.S. at 744-45. We decided many of the issues Brown now renews, including whether a Machner hearing was warranted. We will not revisit those issues that we previously decided. See State v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991). ¶6 Brown also contends that his appellate counsel was ineffective for failing to raise trial counsel s ineffectiveness. Insofar as trial counsel s alleged ineffectiveness is concerned, we thoroughly reviewed and decided that issue. See State v. Brown, No. 2006AP77-CRNM, unpublished slip op. at 3-7 (WI App Dec. 27, 2007). We will not decide it again. See Witkowski, 163 Wis. 2d at 990. Insofar as certain instances of trial counsel s alleged ineffectiveness were not previously raised, Brown has not provided a sufficient reason for failing to raise those instances previously, particularly when trial counsel s alleged ineffectiveness was his focus on direct appeal. See Tillman, 281 Wis. 2d 157, ¶27 (extending the applicability of the procedural bar of State v. Escalona-Naranjo, 3 No. 2008AP2883 185 Wis. 2d 168, 185-86, 517 N.W.2d 157 (1994), to postconviction motions following no-merit appeals). ¶7 Brown also challenges this court s directive to appellate counsel to respond to concerns Brown raised in his response to the no-merit report. Appellate counsel is permitted to reply to such concerns in WIS. STAT. RULE 809.32(1)(f). Brown contends that we erred in directing appellate counsel to reply beyond the statutory deadline for doing so. We are empowered to extend that deadline. See WIS. STAT. RULE 809.82(2)(a). We did so to facilitate our conscientious review of Brown s judgment and postconviction order on direct appeal. See Anders, 386 U.S. at 744-45. By the Court. Order affirmed. This opinion will not be published. 809.23(1)(b)5. (2007-08). 4 See WIS. STAT. RULE

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