Section 974.06. Postconviction procedure.

 

(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.

(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.

(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:

(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.

(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 .

(c) Grant a prompt hearing.

(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.

(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.

(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 .

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

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

(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.

1971 c. 40 s. 93 ; 1977 c. 29 , 187 , 418 ; 1981 c. 289 ; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1991 a. 253 . 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] 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] Plea bargaining as a basis for withdrawal of a guilty plea and a new trial are discussed. State v. Wolfe, 46 Wis. 2d 478 , 175 N.W.2d 216 (1970). 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). A defendant's contention that he concluded he was going to be sentenced under the Youth Service Act for no more than 2 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 his client that the lesser sentence would be imposed. State v. Froelich, 49 Wis. 2d 551 , 182 N.W.2d 267 (1971). 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 he or she may become a material witness or may otherwise be disqualified. Rahhal v. State, 52 Wis. 2d 144 , 187 N.W.2d 800 (1971). The defendant could not withdraw his guilty plea after entering a plea bargain for a recommendation of a one-year sentence by the prosecutor when the presentence report recommended 2 years and the defendant did not object. Farrar v. State, 52 Wis. 2d 651 , 191 N.W.2d 214 (1971). 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). The procedure to be followed as to postconviction motions is discussed. Peterson v. State, 54 Wis. 2d 370 , 195 N.W.2d 837 (1972). 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). 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). 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). 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). 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). 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). 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). 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). 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). 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). 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). 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). 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). 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). 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). This section does not supplant the writ of error coram nobis . Jessen v. State, 95 Wis. 2d 207 , 290 N.W.2d 685 (1980). 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). 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). 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). 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). 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). 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). 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). 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). 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). 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). 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). 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). 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 . 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 . 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 . 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 . 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 . Escalona-Naranjo did not overrule Robinson . State v. Hensley, 221 Wis. 2d 473 , 585 N.W.2d 683 (Ct. App. 1998), 97-3052 . 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 . 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 . 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 . 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 . 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 . 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 . A sufficiency of the evidence challenge may be raised directly in a motion under this section because such a claim is a matter of constitutional dimension. State v. Miller, 2009 WI App 111 , 320 Wis. 2d 724 , 772 N.W.2d 188 , 07-1052 . 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 . 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 . 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 . 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 . 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 . 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 . 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 . 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 . 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). 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). 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). 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). Postconviction remedies in the 1970's. Eisenberg, 56 MLR 69. The duties of trial counsel after conviction. Eisenberg, 1975 WBB No. 2. Wisconsin postconviction remedies. 1970 WLR 1145. Postconviction procedure; custody requirements. 1971 WLR 636. State v. Escalona-Naranjo : A Limitation on Criminal Appeals in Wisconsin? Hunt. 1997 WLR 207. New Laws Reflect the Power and Potential of DNA. Findley. Wis. Law. May, 2002.