STATE OF WISCONSIN
COURT OF APPEALS
DISTRICT II
______________
APPEAL NO.2008-AP-1950
STATE OF WISCONSIN,
Plaintiff/Respondent,
VS.
LORENZO JOHNSON,
Defendant/Appellant.
_______________________________________________
REPLY BRIEF OF DEFENDANT-APPELLANT
___________________________________________________________
Lorenzo Johnson #295855
W.C.I.
P.O. Box 351
Waupun WI 53963
Defendant/Appellant,
Pro.Se.
CC:Anne Murphy, A.A.G.
Dept. of Justice
P.O. Box 7857
Madison, WI. 53707-7857
I.
THE STATE ERRONEOUSLY VIEWS
THE CONTRADISTINCTION OF A
DIRECT APPEAL IN ITS APPLICATION
OF §974.06(4)STATS.
TO THE INSTANT APPEAL.
The gist of the state's brief centers around issues #1 of the appellant's brief (R;4) and its construction of a direct appeal (3:4-10).
What constitutes a direct appeal? The state purports that there is no contradistinction or direct contrast of the stages of a direct appeal. The state propounds that the appellant filed a direct appeal notice and for the duration of the direct appeal contemporaneously did not present the instant claims in a direct appeal. (R;10)
The court in BRAUN V. POWELL, 227 F.3d 908 (7Th Cir 2000), overruling STATE V. BRAUN, 516 NW2d 740 (1994), in its application of STATE V. ESCALONA-NARAMJO, 517 NW2d 157 (1994), annunciated the schematics of a direct appeal. "After conviction, the prisoner's first challenge would have been a motion under §974.02 Stats. The Sec. §974.02 motion would have been considered by the state court on the circuit level. If the trial court denied the motion the prisoner could have appealed to the court of appeals of Wisconsin and, if necessary, to the Supreme Court of Wisconsin. These appeals would have constituted a direct appeal." Id. at 911 (emphasis added).
The contradistinction of the direct appeal process in the instant appeal is that the appellant filed a timely notice of intent to pursue postconviction relief, but did not do the following:
1) Create a motion under §974.02 Stats
2) Have the circuit court consider a §974.02 motion
3) The circuit court never considered a §974.02 motion and did not rule on a §974.02 motion; thus abrogating a,
4) Appeal to the court of appeals for district II, and to the Wisconsin Supreme court; hence,
5) The failure to perfect a direct appeal did not foreclose a later collateral attack under §974.06(3)(C)and(D) Stats, in the instant appeal, BRAUN Id. at 913.
Hence, the application of the doctrine as annunciated in LOOP V. STATE, 222 NW2d 694, 696, (1974) "was correctly" presented in issue #1 of the ap¬pellant’s brief. Abrogating in toto the states argument of the procedural bars of 5974.06(4) Stats, in the instant appeal. The court in LOOP Supra made clear; However, that the only issues that could be raised under §974.06 Stats. after being abandon on direct appeal were those of constitutional magnitude. In deed, LOOP specifically held that exhaustion on direct appeal was not required before bringing a constitutional claim under §974.06 Stats. Thus, under the rationale in LOOP the appellant's failure to take any appeal doss not, Per.Se. operates as a procedure bar under f974.06 Stats, to the appellant's later claims.
In sum, the appellant's failure to raise the instant constitutional claims in a direct appeal does not, standing alone, foreclose the opportunity to raise those claims in a later motion under S974.06. The appellant's 974.06 motion was not an improper attempt to relitigate matters already decided.
II
THE STATE ERRONEOUSLY VIEWS THE OPERATION
OF STATE V. KNIGHT, 484 NW2d 540 (1992),
AND ITS APPLICATION IN THE APPEAL AT BAR.
The state argues that the appellant submitted a Petition for Writ of Habeas Corpus under KNIGHT Supra to the court of appeals for district II, Subsequently dismissed by the appellant July 20, 2006 (R:5). The state also en arguendo reasoned that if the appellant is now claiming that he was deprived of effective assistance of counsel on appellate appeal that it related to counsel's performance on appeal, not before the circuit court and should have been raised in the court of appeals by a Petition for Wirt of Habeas Corpus.(R:5)
The state's analysis of the KNIGHT PETITION is misplaced or deluding in the appeal at bar for several reasons which are:
1) The appellant did not present issues to the circuit court nor to the court of appeals neither to the Supreme court under $974.02 abrogating the application of the doctrine of KNIGHT Supra, showcasing that the quashment of the KNIGHT PETITION by the appellant was Proper on July 20, 2006;
2) The appellant waived his right on direct appeal with the opportunity to be assisted by counsel because appellate counsel desired to file a no merit report under $809.32 Stats, which allowed the appellant to be fully informed about his rights on appeal, so that he, as the appellant, may be able to make fully informed decision about whether and how to exercise his rights on direct appeal, thus abrogating an abandonment of appellate counsel on direct appeal claim brought under a KNIGHT PETITION as announced in STATE EX REL. FLORES V. STATE, 516 NW2d 362 (1994); and;
3) A KNIGHT PETITION is not the proper vehicle to raise the instant issues as the state suggests (R:8), but rather a Knight Petition is a challenge to the efficacy of appellate counsel and is a collateral attack to the sentence under which the appellant remains in custody, and does not directly challenge the trial proceeding that resulted in a conviction. KNIGHT Id. at 519.
III
THE STATE SHOULD BE PROCEDURALLY BARRED FROM
CREATING A SUPPLEMENTAL BRIEF AFTER HAVING
SUPERFICIALLY ADDRESSED THE ISSUES IN THE
APPEAL NEXUSED TO A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL IN
TOTAL WHICH IS AN ERRONEOUS VIEW OF THE ISSUES PRESENTED ON REVTEW.
The state in its brief at Pg. #11 alleges that "a review of Johnson's nine substantive claims on appeal reveals that they all involve claims of ineffective assistance of trial counsel. Either directly or as a claim that defense counsel did not object to the testimony of a witness or argument of a prosecutor."
Upon review of the appellant's issues presented for review in absence of redundancy and reargument, issues #3, »6, 5 #7 centers on the trial court's erroneous exercise of discretion standard which the court of appeals must determine upon review if the trial court errors contributed to the verdict. Accordingly, the state did not conduct a competent comprehensive analysis of the appellant's issues on appeal.
The state also erroneously alleges at Pg#14 in its brief that the trial court found that Johnson had not convinced the court that the claims have any merit, whereas, the true statements from the trial court are evidenced on the record reading the merits of the appellant's issues are as follows:
"But more significantly, as pointed out by Mr. Schneider, you have not convinced the court that they have any merit." (R; App. 115; 12-14). (emphasis added)
It's well established that the appellant must prove that his trial atty. substandard performance prejudiced the case, and that it was likely, that for the attorney's errors the results would have been different. Ineffective assistance of counsel produces unjust convictions, create an imbalance in the adversary process which heightens the chances of governmental abuses of power and undermines fundamental constitutional rights, while thwarting the achievement of the goal of equal justice. The prejudice prong requires that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose results are reliable. The defendant as a Pro.Se. lit-igant is to identify the acts or omissions from the record such as issue #2 nexused to counsel that simply need to be alleged, not to have been a result of reasonable professional judgment, For example issue #2 in the appellant's brief does showcase ineffective assistance of counsel under the DENNY TEST, which requires defense counsel's investigation into mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor. Again, issue #2, for example, does showcase a quantum of evidence already known to defense counsel, but under the prejudice prong the known evidence would lead a reasonable attorney to investigate further the DENNY DEFENSE (see STATE V. DENNY (1984), in respect to a potential defense, wherein, if this failure had not occurred, the trial court, after proper evaluation of the record, could've been impelled to instruct the jury in respect to a DENNY DEFENSE. See STATE V. FELTON, 110 (W)2d 485, 503, [2] (1983); and generally, WIGGINS V. SMITH, 539 U.S. 510, 123 S.Ct. 2527 (2003).
CONCLUSION
Therefore, based on the aforegoing arguments presented herein, the appellant prays that this court disregard the respondents brief, deciding the merits of the issues presented in the appellant's brief, providing relief as requested initially by the appellant in his brief-in-chief. Dated; (written in: Oct 27, 2009)
Submitted By
Lorenzo Johnson #295855
WCI, P.O. Box 351 Waupun. WI. 53963-0351 Defendant/Appellant, Pro.Se.
