Chapter 974

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 this section, 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, 185 Wis. 2d 169 (1994), preclude a defendant from pursuing claims in a subsequent appeal that could have been raised in the defendant’s 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 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.

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 this section. 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 the defendant’s claims. The defendant got review of those claims from the court of appeals and 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 a motion under this section 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 motion under this section, 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 motion under this section 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, 185 Wis. 2d 169 (1994), 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 the defendant’s postconviction counsel was ineffective for failing to bring certain viable claims must demonstrate that the claims the defendant 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 the defendant’s attorney. A claim’s strength may be bolstered if a defendant directed the defendant’s attorney to pursue it. State v. Romero-Georgana, 2014 WI 83, 360 Wis. 2d 522, 849 N.W.2d 668, 12-0055.

974.06 Annotation Newly discovered evidence that is cumulative does not support a motion for a new trial. When the credibility of a prosecution witness is tested at trial, evidence that again attacks the credibility of that witness is cumulative. In this case, the defendant had newly discovered evidence represented by the affidavits of three men who alleged that two witnesses lied when they testified during trial that the defendant was involved in the crimes for which the defendant was convicted. The affidavits were merely cumulative evidence because they were additional evidence of the same general character as was subject to proof at trial, in other words, that the witnesses lied to achieve favorable plea bargains for themselves. State v. McAlister, 2018 WI 34, 380 Wis. 2d 684, 911 N.W.2d 77, 14-2561.

974.06 Annotation In this case, the affidavits attested to years after the trial that were offered as newly discovered evidence averred that two trial witnesses admitted to the affiants prior to trial that the witnesses intended to falsely accuse the defendant of involvement in crimes in order to reduce their own punishment. That evidence differed from classic recantation testimony in the temporal sense and also because there was no formal or public renunciation of the witnesses’ testimony. However, the affidavits bore a similarity to recantation evidence in that they used what was claimed to be the witnesses’ own words to allege the witnesses lied at trial. Under McCallum, 208 Wis. 2d 463 (1997), when recantation testimony is presented as newly discovered evidence, the recantation must be corroborated by other newly discovered evidence. No less was required for the affidavits presented in this case. State v. McAlister, 2018 WI 34, 380 Wis. 2d 684, 911 N.W.2d 77, 14-2561.

974.06 Annotation The relief of vacating and setting a judgment aside under sub. (3) (d) is designed to address defects with respect to a conviction or sentence, not to provide a second chance or a fresh start as is intended by s. 973.015, the expunction statute. Vacatur invalidates the conviction itself, whereas expunction merely deletes the evidence of the underlying conviction from court records. Expunction does not invalidate a conviction. State v. Braunschweig, 2018 WI 113, 384 Wis. 2d 742, 921 N.W.2d 199, 17-1261.

974.06 Annotation The Knight, 168 Wis. 2d 509 (1992)/Rothering, 205 Wis. 2d 675 (Ct. App. 1996), framework remains the correct methodology for determining the appropriate forum for a criminal defendant to file a claim relating to the alleged ineffectiveness of counsel after conviction. Both Knight and Rothering premise their decisions on the forum in which the alleged ineffectiveness took place. Applying this framework, the circuit court is the appropriate forum for a claim that postconviction counsel is ineffective for failing to assert an ineffective trial counsel claim. State ex rel. Warren v. Meisner, 2020 WI 55, 392 Wis. 2d 1, 944 N.W.2d 588, 19-0567.

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, 386 U.S. 738 (1967), procedures. Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (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 this section. Page v. Frank, 343 F.3d 901 (2003).

974.06 Annotation This section does not constitute direct review for purposes of calculating the date on which a judgment became final by the conclusion of direct review or the expiration of the time for seeking such review under 28 USC 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 Motions under this section challenging the effectiveness of appellate counsel should be filed directly in the court of appeals. But motions under this section 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. Boatwright, 580 F.3d 653 (2009).

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

974.06 Annotation Wisconsin Post Conviction Remedies—Habeas Corpus: Past, Present and Future. Bartell. 1970 WLR 1145.

974.06 Annotation Wisconsin’s Post-Conviction Procedure Act—Custody Requirements—What It Takes To Be Part of the “In” Crowd. 1971 WLR 636.

974.06 Annotation State v. Escalona-Naranjo: A Limitation on Criminal Appeals in Wisconsin? Hunt. 1997 WLR 207.

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

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) (1) In this section:

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) (4) 

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) (6) 

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)1. 1. Findings based on testing of biological materials.

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)(b)1. 1. Findings based on testing of biological materials.

974.07(6)(b)2. 2. The movant’s biological specimen.

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) (7) 

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)3. 3. The evidence to be tested meets the conditions under sub. (2) (a) to (c).

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.

974.07(7)(b)2. 2. The evidence to be tested meets the conditions under sub. (2) (a) to (c).

974.07(7)(b)3. 3. 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(8) (8) The court may impose reasonable conditions on any testing ordered under this section in order to protect the integrity of the evidence and the testing process. If appropriate, the court may order the state crime laboratories to perform the testing as provided under s. 165.77 (2m) or, after consulting with the movant and the district attorney, may order that the material be sent to a facility other than the state crime laboratories for testing. If ordered to perform testing under this section, the crime laboratories may, subject to the approval of the movant and the district attorney, arrange for another facility to perform the testing.

974.07(9) (9) If a court in which a motion under sub. (2) is filed does not order forensic deoxyribonucleic acid testing, or if the results of forensic deoxyribonucleic acid testing ordered under this section are not supportive of the movant’s claim, the court shall determine the disposition of the evidence specified in the motion subject to the following:

974.07(9)(a) (a) If a person other than the movant is in custody, as defined in s. 968.205 (1) (a), the evidence is relevant to the criminal, delinquency, or commitment proceeding that resulted in the person being in custody, the person has not been denied deoxyribonucleic acid testing or postconviction relief under this section, and the person has not waived his or her right to preserve the evidence under s. 165.81 (3), 757.54 (2), 968.205, or 978.08, the court shall order the evidence preserved until all persons entitled to have the evidence preserved are released from custody, and the court shall designate who shall preserve the evidence.

974.07(9)(b) (b) If the conditions in par. (a) are not present, the court shall determine the disposition of the evidence, and, if the evidence is to be preserved, by whom and for how long. The court shall issue appropriate orders concerning the disposition of the evidence based on its determinations.

974.07(10) (10) 

974.07(10)(a) (a) If the results of forensic deoxyribonucleic acid testing ordered under this section support the movant’s claim, the court shall schedule a hearing to determine the appropriate relief to be granted to the movant. After the hearing, and based on the results of the testing and any evidence or other matter presented at the hearing, the court shall enter any order that serves the interests of justice, including any of the following:

974.07(10)(a)1. 1. An order setting aside or vacating the movant’s judgment of conviction, judgment of not guilty by reason of mental disease or defect, or adjudication of delinquency.

974.07(10)(a)2. 2. An order granting the movant a new trial or fact-finding hearing.

974.07(10)(a)3. 3. An order granting the movant a new sentencing hearing, commitment hearing, or dispositional hearing.

974.07(10)(a)4. 4. An order discharging the movant from custody, as defined in s. 968.205 (1) (a), if the movant is in custody.

974.07(10)(a)5. 5. An order specifying the disposition of any evidence that remains after the completion of the testing, subject to sub. (9) (a) and (b).

974.07(10)(b) (b) A court may order a new trial under par. (a) without making the findings specified in s. 805.15 (3) (a) and (b).

974.07(11) (11) A court considering a motion made under sub. (2) by a movant who is not represented by counsel shall, if the movant claims or appears to be indigent, refer the movant to the state public defender for determination of indigency and appointment of counsel under s. 977.05 (4) (j).

974.07(12) (12) 

974.07(12)(a) (a) The court may order a movant to pay the costs of any testing ordered by the court under this section if the court determines that the movant is not indigent.

974.07(12)(b) (b) A movant is indigent for purposes of par. (a) if any of the following apply:

974.07(12)(b)1. 1. The movant was referred to the state public defender under sub. (11) for a determination of indigency and was found to be indigent.

974.07(12)(b)2. 2. The movant was referred to the state public defender under sub. (11) for a determination of indigency but was found not to be indigent, and the court determines that the movant does not possess the financial resources to pay the costs of testing.

974.07(12)(b)3. 3. The movant was not referred to the state public defender under sub. (11) for a determination of indigency and the court determines that the movant does not possess the financial resources to pay the costs of testing.

974.07(12)(c) (c) The state crime laboratories shall pay for testing ordered under this section and performed by a facility other than the state crime laboratories if the court does not order the movant to pay for the testing.

974.07(13) (13) An appeal may be taken from an order entered under this section as from a final judgment.

974.07 History History: 2001 a. 16; 2005 a. 60; 2007 a. 20 s. 9121 (6) (a); 2009 a. 28; 2011 a. 38.

974.07 Annotation Sub. (6) compels the state to turn over evidence for independent DNA testing, subject to protective conditions imposed by the trial court. State v. Hudson, 2004 WI App 99, 273 Wis. 2d 707, 681 N.W.2d 316, 03-2083.

974.07 Annotation The interpretation of sub. (6) by Moran, 2005 WI 115, that it gives a movant the right to test the sought-after evidence containing biological material at the movant’s own expense, is incorrect. The textually and contextually manifest statutory purpose of this section is for a movant to obtain an order requiring forensic DNA testing of certain evidence under sub. (2). Sub. (6) says nothing about allowing the movant to conduct forensic DNA testing of evidence. Sub. (6) (a) states only that the district attorney must “make available” the specified physical evidence. It does not authorize the movant to send away the evidence for testing. State v. Denny, 2017 WI 17, 373 Wis. 2d 390, 891 N.W.2d 144, 15-0202.

974.07 Annotation Preserving Due Process: Violations of the Wisconsin DNA Evidence Preservation Statutes as Per Se Violations of the Fourteenth Amendment. Kipp. 2004 WLR 1245.