Wisconsin Court of Appeals rules no merit report bars subsequent appeal.

• Author: Ziemer, David

Byline: David Ziemer

The Wisconsin Court of Appeals held on March 30 that the procedural bar of State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994), may be applied when a prior appeal was processed under the no merit procedures of Rule 809.32.

Christopher G. Tillman pleaded no contest to three counts of first-degree recklessly endangering safety while armed, one count of second-degree recklessly endangering safety, and one count of possession of a firearm, and the State dismissed the habitual offender allegations. Racine County Circuit Court Judge Emmanuel Vuvunas sentenced Tillman to 29 years in prison.

The charges arose out of an armed robbery and street chase during which Tillman fired a gun at the robbery victim, and one other person.

Tillman filed a timely Notice of Intent to Pursue Postconviction Relief, and his appointed counsel filed a Notice of Appeal indicating that he anticipated filing a no merit report pursuant to Rule 809.32. Counsel filed a no merit report, addressing whether there was any basis for Tillman to withdraw his pleas, and whether the trial court properly exercised its sentencing discretion.

Tillman filed a response, questioning whether there was a factual basis for his pleas. In an unpublished slip opinion, the court of appeals concluded there were no arguably meritorious issues for appeal, and affirmed the judgment of conviction.

Acting pro se, Tillman filed a postconviction motion, seeking sentence modification on the grounds that the State improperly charged him as a repeater. The trial court denied the motion, and Tillman appealed. The court of appeals again affirmed, in a summary order, because Tillman was not actually convicted as a repeater.

Tillman then filed another postconviction motion, seeking to vacate his sentence on double jeopardy grounds. Judge Allan B. Torhorst addressed the merits, but denied the motion without a hearing. Tillman appealed, and the court of appeals affirmed in a decision by Judge Neal P. Nettesheim.

The court agreed with the State instead that Escalona-Naranjo applies to no-merit appeals, and that Tillman's claims are therefore barred.

The court noted, "in some facets, the no-merit procedure affords a defendant greater scrutiny of a trial court record and greater opportunity to respond than in a conventional appeal. As with a conventional appeal, appellate counsel examines the trial court record for potential appellate issues. However, the defendant in a conventional...