THE TRIAL COURT ERRONEOUSLY VIEWED THE HOLDINGS IN LOOPY V. STATE, 222 N.W.2D. 694, 696 (1974) DENYING THE DEFENDANT'S POSTCONVICTION MOTION ON 3/27/2008 REASONING. THAT THE DEFENDANT COULD'VE RAISED THE INSTANT ON DIRECT APPEAL, WHEN THE DEFENDANT DID NOT PURSUE A DIRECT APPEAL.
THERE'S NO CASE LAW, PUBLISHED OR UNPUBLISHED, PROCEDURALLY BARRING A DEFENDANT FROM RAISING ISSUES OF CONSTITUTIONAL DIMENSIONS IF A DIRECT APPEAL WASN'T PURSUED RAISING ISSUES OF CONSTITUTIONAL DIMENSIONS IRRESPECTIVE OF THE STAGES OF AN INITIAL APPEAL.
THE TRIAL COURT STATED ON THE RECORD, "I AM GOING TO INDICATE THAT IT DOES SEEM TO ME BECAUSE YOU LOST YOUR RIGHT TO DIRECT APPEAL. BASICALLY THAT WAS YOUR DECISION AND THAT THE ISSUES COULD HAVE BEEN RAISED THAT YOU BE BARRED UNDER THAT." (A:lll: 15-19)
THE DEFENDANT HAD DISMISSED APPELLATE COUNSEL PREMISED ON HIS DECISION TO FILE A NO MERIT REPORT, WHEREAS, THE DEFENDANT HAD REQUESTED SEVERAL EXTENSIONS IN ORDER TO ABROGATE DEFAULT ON HIS DIRECT APPEAL DUE TO ITS TIME CONSTRAINTS, BUT WAS NOT LITERALLY COMPETENT TO FILE PLEADING OF ISSUES OF CONSTITUTIONAL NATURES ON A PRO SE BASIS, EVIDENCING THE ABILITY TO FILE PLEADINGS ON COLLATERAL REVIEW, SINCE NO DIRECT APPEAL WAS TAKEN.
FOR AS THE COURT HELD IN LOOP, SUPRA, THAT, "... ISSUES OF CONSTITUTIONAL DIMENSION CAN BE RAISED ON DIRECT APPEAL AND ALSO CAN BE RAISED ON 974.06 MOTION. MERELY BECAUSE A DIRECT APPEAL WAS NOT TAKEN DOES NOT MEAN THAT A 974.06 MOTION CANNOT BE MADE LATER." ID. AT 696. (EMPHASIS ADDED)
THE TRIAL COURT'S ERRONEOUS VIEW OF LOOP, SUPRA, IS NOT A DISCRETIONARY DETERMINATION BASED UPON FACTS APPEARING IN THE RECORD AND RELIANCE UPON THE APPROPRIATE AND APPLICABLE LAW DID NOT EVIDENCE A PURPOSE OF ACHIEVING A REASONED AND REASONABLE DETERMINATION, ABROGATING AN UNAUTHORIZED BAR UNDER COLLATERAL REVIEW. SEE HARTUNG V. HARTUNG, 102 WIS. 2D. 59, 306 N.W.2D. 16 (1981).
