author: FINE, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Neil P. Jackson, Defendant-Appellant.

    Court of Appeals

      No. 04-1603-CR.

      Submitted on briefs February 8, 2005.

      Decided March 15, 2005.

    2005 WI App 104
    (Also reported in 701 N.W.2d 42.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Attorney Timothy A. Provis, of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and David J. Becker, assistant attorney general.
    Before Wedemeyer, PJ., Fine and Kessler, JJ.

       Petition to review denied 7-28-05.

   FINE, J.

¶ 1. Neil E Jackson appeals from a judgment entered on the jury's verdict finding him guilty of attempted armed robbery, with the threat of force, as a party to the crime, see Wis. Stat. §§ 943.32(2), 939.32, 939.05, and from the trial court's order denying his motion for postconviction relief. He claims that the trial court's instruction to the jury on Wisconsin's party-to-a-crime law on criminal culpability violated his right to due process. We affirm.

I.

¶ 2. Neil E Jackson was charged, as a party to a crime, with attempting to rob Dymaris Dejesus after two alleged co-conspirators, Roosevelt Robinson and Vincent Harris, told the police that Jackson was involved. At Jackson's trial, Dejesus testified that when she got home from a date with Robinson, she parked her car, went through the screen door to the house, and opened the inside door. She told the jury that when she turned around to close the screen door, a man tried to get into the house. After a struggle with the man, she was able to shut the inside door, and lock it. She testified that she then heard someone kick the door, and three or four gunshots. Dejesus told the jury that she did not recognize the man, and that Robinson later called her to apologize for his role in the attack.

¶ 3. Although Robinson, who pled guilty to the attempted armed robbery, testified as part of the State's case against Jackson, he denied that Jackson was involved, claiming that he had earlier implicated Jackson because he, Robinson, was angry at Jackson. The trial court let the State read to the jury what Robinson had earlier told the police. See Wis. Stat. Rule 908.01(4)(a) 1 (prior inconsistent statement of witness not hearsay). In those pre-trial statements, Robinson claimed that Jackson, his cousin, wanted to rob Dejesus's father because Jackson thought Dejesus's father was a drug dealer. According to Robinson's pre-trial statements to the police, Jackson told Robinson that he would give Robinson part of the money if Robinson would tell him when Dymaris Dejesus was leaving Robinson's house. Robinson also told the police that the plan was for Jackson and a "T-Mack" to wait outside the Dejesus house. When Dymaris Dejesus got home, Jackson and "T-Mack" were going to hold a gun to her head, take her inside the house, and force her father to give them money and drugs. Robinson also told the police in his pre-trial statements that he went out with Dymaris Dejesus that night, and that Jackson called Robinson several times to see if Dymaris Dejesus was still with him. When Jackson called at 2:30 a.m., Robinson told him that Dymaris Dejesus had just left.

¶ 4. Harris also testified and, as with Robinson, the State was allowed to use Harris's pre-trial statements to the police as evidence because Harris told the jury he had falsely accused Jackson of being involved in the attempted armed robbery because he was angry at Jackson. In those pre-trial statements, Harris said that Jackson came up with a plan to rob Dymaris Dejesus's father because "[h]e's a big time drug dealer." According to Harris's statements, Jackson and several others drove to the Dejesus house, and when they got there, he, Jackson, and a "Bay Ray" walked up to the house, and Jackson tried to open the door using keys that Robinson had given him. The keys did not work, however, and they ran away when they saw a light in the house go off. Harris told the police that he went back to the house after Jackson berated him, and that when he, Harris, heard two gunshots, he drove off.

¶ 5. Over Jackson's objection, the trial court instructed the jury on the conspiracy aspect of Wisconsin's law on party-to-a-crime complicity:

A person is a member of a conspiracy if, with the intent that a crime be committed that, the person agrees with or joins with another for the purpose of committing that crime. A conspiracy is a mutual understanding to accomplish some common criminal objective or to work together for a common criminal purpose. It is not necessary that the conspirators had any express or normal agreement or that they had a meeting or even that they knew each other or even that they all knew each other.
If a person is a member of a conspiracy to commit a crime and that crime is committed by any member of the conspiracy, then that person and all members of the conspiracy are guilty of that crime.

See Wis. Stat. § 939.05(2)(c); Wis JI — Criminal 410. The trial court also instructed the jury on, among other things, the aiding-and-abetting theory of party-to-a-crime liability, attempt, and armed robbery.

II.

¶ 6. Whether jury instructions violate due process is a question of law that we review de novo. State v. Pettit, 171 Wis. 2d 627, 639, 492 N.W.2d 633, 639 (Ct. App. 1992). As we have explained:

Relief is not warranted unless the appellate court is "persuaded that the instructions, when viewed as a whole, misstated the law or misdirected the jury" in the manner asserted by the challenger. Where a criminal defendant claims that the jury instructions violated constitutional due process, the issue is whether there is a reasonable likelihood that the jury applied the instruction in a way that violates the defendant's rights. In making that assessment, we consider the challenged portion of the instructions in context with all other instructions provided by the trial court.

State v. Foster, 191 Wis. 2d 14, 28, 528 N.W.2d 22, 28 (Ct. App. 1995) (citations and quoted source omitted).

¶ 7. Jackson alleges that the jury instruction on conspiracy violated his right to due process because, he contends, "conspiracy to attempt" is a nonexistent crime. Jackson relies on United States v. Meacham, 626 F.2d 503 (5th Cir. 1980), and People v. Iniguez, 116 Cal. Rptr. 2d 634 (Cal. Ct. App. 2002). These cases are inapposite.

¶ 8. In Meacham, the defendants were charged with "conspiracy to attempt to import marijuana" and "conspiracy to attempt to distribute marijuana" under 21 U.S.C. §§ 846 and 963. Meacham, 626 F.2d at 507-508. Although Meacham did not decide "whether the government may prosecute the conceptually bizarre crime of conspiracy to attempt in instances where separate provisions make both the conspiracy and the attempt criminal offenses," it "note[d]" that, "it would he the height of absurdity to conspire to commit an attempt, an inchoate offense, and simultaneously conspire to fail at the effort." Id., 626 F.2d at 509, 509 n.7 (emphasis added). Jackson relies on this language.

¶ 9. In Iniguez, the defendant pled guilty to" 'conspiracy to commit attempted murder.'" Iniguez, 116 Cal. Rptr. 2d at 635. Iniguez determined that " 'conspiracy to commit attempted murder'" was a nonexistent crime:

The conduct defendant pleaded to, conspiracy to commit attempted murder, is a conclusive legal falsehood. This is because the crime of attempted murder requires a specific intent to actually commit the murder, while the agreement underlying the conspiracy pleaded to contemplated no more than an ineffectual act. No one can simultaneously intend to do and not to do the same act, here the actual commission of a murder. Defendant has pleaded to a nonexistent offense.

Id., 116 Cal. Rptr. 2d at 636-637 (emphasis added; footnote omitted). Jackson relies on this language as well.

¶ 10. Jackson asserts that these cases show that attempt cannot be the object of a "conspiracy" because, under Wisconsin law, conspiracy requires specific "intent that a crime he committed," see Wis. Stat. § 939.31, while attempt, by definition, is an incomplete crime, see Wis. Stat. § 939.32(3). Jackson, however, was not charged with "conspiracy to attempt" armed robbery under § 939.31. Rather, he was charged with attempted armed robbery, as a party to the crime, under Wis. Stat. § 939.05. As explained in State v. Nutley, 24 Wis. 2d 527, 129 N.W.2d 155 (1964), overruled on other grounds, State v. Stevens, 26 Wis. 2d 451, 132 N.W.2d 502 (1965), there is a distinction between conspiracy as a substantive inchoate crime under § 939.31, and conspiracy as a theory of prosecution for a substantive crime under § 939.05(2)(c), and this distinction is significant here.

¶ 11. In Nutley, two of the three defendants were charged with conspiracy to commit attempted murder in connection with the shooting of a police officer, who, unlike another officer shot during the confrontation, did not die. Nutley, 24 Wis. 2d at 559-560, 129 N.W.2d at 169. Although only the third co-defendant did the shooting, Nutley recognized that "the jury could reasonably predicate [the two non-shooters'] liability upon the conspiracy theory of sec. 939.05(2)(c), Stats." Nutley, 24 Wis. 2d at 559, 129 N.W.2d at 169. The two non-shooters also tried to interpose the straight conspiracy statute, Wis. Stat. § 939.31, to argue that their sentences were excessive because, as each of them contended, if his criminal liability were "predicated upon his role as a conspirator [under § 939.31], then his life sentence is excessive as a matter of law." Nutley, 24 Wis. 2d at 560-561, 129 N.W.2d at 169. In rejecting that contention, which is similar to Jackson's argument here, Nutley recognized the distinction between liability founded on the straight conspiracy statute, § 939.31, and conspiracy as an avenue to party-to-a-crime liability under § 939.05(2)(c):

[The non-shooters'] argument ignores the distinction between conspiracy as a substantive inchoate crime, and conspiracy as a theory of prosecution as a principal for a substantive consummated crime. If the defendants had agreed to kill the officers, and did only one thing to carry out this plan but short of shooting to kill or to attempt to kill, they could have been convicted under the terms of sec. 939.31 of a conspiracy to commit murder and the sentencing provisions of this statute would have been relevant. Here, they were convicted of a substantive crime, in part, at least, on the theory that they were conspirators and hence were guilty, as principals, of the crimes charged.

Id., 24 Wis. 2d at 561, 129 N.W.2d at 170 (footnote omitted; emphasis by Nutley)', see also State v. Sample, 215 Wis. 2d 487, 505, 573 N.W.2d 187, 195 (1998) (section 939.05 "forms a separate basis for criminal liability, distinct from that for the inchoate crime of conspiracy").

¶ 12. As we have seen, Jackson was charged with and convicted of the substantive crime of attempted armed robbery as a party to that crime. That "conspiracy" was the party-to-a-crime avenue by which his criminal liability attached, see Holland v. State, 91 Wis. 2d 134, 143, 280 N.W.2d 288, 292-293 (1979) (party-to-a-crime statute establishes "alternative means or ways" that a crime can be committed), does not make him guilty of a non-existent crime. Armed robbery is a crime. Attempted armed robbery is a crime. Under the evidence looked at in a light most favorable to the jury's verdict, see Nutley, 24 Wis. 2d at 547-548, 129 N.W.2d at 163-164, Jackson set into motion an armed-robbery scenario that culminated in the crime of attempted armed robbery because of the intervention of things beyond his and his accomplices' control. He was thus guilty of the substantive crime of attempted armed robbery as a principal by virtue of Wis. Stat. § 939.05(2)(c). See Nutley, 24 Wis. 2d at 561, 129 N.W.2d at 170. The trial court did not err in instructing the jury, and did not violate Jackson's right to due process.

By the Court. — Judgment and order affirmed.

       21 U.S.C. § 846 provides:
      Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
      21 U.S.C. § 963 is identical. See United States v. Meacham, 626 F.2d 503, 506 (5th Cir. 1980).

       WISCONSIN Stat. § 939.31 provides:
      Conspiracy. Except as provided in ss. 940.43 (4), 940.45 (4) and 961.41 (lx), whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may, if one or more of the parties to the conspiracy does an act to effect its object, be fined or imprisoned or both not to exceed the maximum provided for the completed crime; except that for a conspiracy to commit a crime for which the penalty is life imprisonment, the actor is guilty of a Class B felony.
      Wisconsin Stat. § 939.32(3) provides:
      Requirements. An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that the actor does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that the actor formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.

       WisConsin Stat. § 939.05 provides:
      Parties to crime. (1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although the person did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.
      (2) A person is concerned in the commission of the crime if the person:
      (a) Directly commits the crime; or
      (b) Intentionally aids and abets the commission of it; or
      (c) Is a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it. Such a party is also concerned in the commission of any other crime which is committed in pursuance of the intended crime and which under the circumstances is a natural and probable consequence of the intended crime. This paragraph does not apply to a person who voluntarily changes his or her mind and no longer desires that the crime be committed and notifies the other parties concerned of his or her withdrawal within a reasonable time before the commission of the crime so as to allow the others also to withdraw.


source: Caselaw Access Project

author: KESSLER, J.

license: Public Domain

text:
    Robert J. Hillis and Jenny Hillis, Plaintiffs-Appellants, v. Village of Fox Point Board of Appeals, Scott Miller, Fox Point Building Inspector, Michael McGee and Carol McGee, Defendants-Respondents.
    Court of Appeals

      No. 04-1787.

      Submitted on briefs February 08, 2005.

      Decided March 15, 2005.

    2005 WI App 106
    (Also reported in 699 N.W.2d 636.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs oí Daniel Kelly, Mark A. Cameli and James J. Eichholz of Reinhart Boerner Van Deuren S.C. of Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the briefs of Mark B. Pollack and Maria S. Lazar of Galanis, Pollack & Jacobs, S.C. of Milwaukee for Michael and Carol McGee and H. Stanley Riffle and Julie A. Aquavia of Arenz, Molter, Macy & Riffle, S.C. of Waukesha for Village of Fox Point Board of Appeals and Scott Miller, Fox Point Building Inspector.

    Before Wedemeyer, PJ., Fine and Kessler, JJ.
   KESSLER, J.

¶ 1. Robert J. and Jenny Hillis appeal from a circuit court order affirming a Village of Fox Point Board of Appeals ("Board of Appeals") decision permitting Michael and Carol McGee to construct an addition to their house. We affirm the order.

BACKGROUND

¶ 2. The Hillises, who purchased their house in the Village of Fox Point in 1979, live next door to the McGees. The McGees' house was originally built in 1927; they purchased it in 1995. No evidence suggests that the McGees' house has ever been used other than as a residence. It is located in an area zoned for residential use.

¶ 3. The McGees applied for a permit to construct an addition on the south side of their house, the side nearest the Hillises. The Hillises objected to the proposed addition. The Hillises did not allege that the proposed addition violated any ordinances as to use (residential), setbacks (front or side), or area (ratio of floor of house to lot size). Rather, they argued that the McGees' house is already a nonconforming property because it extends over a bluff line, which is in violation of a provision of the municipal zoning code. Therefore, they contended, the McGees are subject to a limit on the cost of additions or modifications of fifty percent of the assessed value. The Hillises asserted that because the cost of the proposed addition exceeds fifty percent of the house's assessed value, the addition should not be allowed. See Village of Fox Point, Wis., Code ("VFPC") § 14.04.

¶ 4. The Fox Point Building Board refused to apply the fifty percent of value limitation in VFPC § 14.04 and conditionally approved the McGees' application to enlarge their house. The Hillises appealed to the Board of Appeals. The Board of Appeals directed the parties to brief the issue of whether the fifty percent rule applied to nonconforming buildings, or whether it applied instead to modification of buildings whose use was nonconforming. The parties were directed to assume, for purposes of briefing, that the McGees' residence was actually over the bluff line and thus did not conform to that structural requirement.

¶ 5. After lengthy proceedings and briefing by both the Hillises and the McGees, the Board of Appeals rejected the Hillises' argument. The Board of Appeals concluded that the fifty percent rule did not apply to the McGees' residence because its use as a residence was in conformity with the applicable zoning code. The Hill-ises sought certiorari from the circuit court to overturn the Board of Appeals' decision. The circuit court, after hearing and briefing, denied the certiorari request in a written memorandum and order. The Hillises now appeal that order.

DISCUSSION

A. Standard of review

¶^. "On appeal from a circuit court order or judgment entered on certiorari, an appellate court does not review the judgment or findings of the circuit court but rather reviews the record of the Board to which certiorari is directed." Klinger v. Oneida County, 149 Wis. 2d 838, 845 n.6, 440 N.W.2d 348 (1989).

When no additional evidence is taken, statutory certio-rari review is limited to: (1) whether the board kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the board might reasonably make the order or determination in question based on the evidence.

State ex rel. Ziervogel v. Washington County Bd. of Adjustment, 2004 WI 23, ¶ 14, 269 Wis. 2d 549, 676 N.W.2d 401. This standard of review is deferential with regard to factual findings; however, the interpretation of statutes and ordinances presents a question of law the reviewing court determines independently. See State v. Ozaukee County Bd. of Adjustment, 152 Wis. 2d 552, 559, 449 N.W.2d 47 (Ct. App. 1989) ("The rules governing interpretation of ordinances and of statutes are the same."). Here, the facts are undisputed and straightforward. The dispute centers on the application of a village ordinance, and a state statute, to those facts. This is a question of law that we review independently.

B. Fox Point ordinances

¶ 7. The Fox Point zoning ordinances involved here are substantially similar to Wis. Stat. § 62.23(7)(h), which provides a statewide format by which municipalities may deal with nonconforming uses. In relevant part it states:

The lawful use of a building or premises existing at the time of the adoption or amendment of a zoning ordinance may be continued although such use does not conform with the provisions of the ordinance. Such nonconforming use may not be extended. The total structural repairs or alterations in such a nonconforming building shall not during its life exceed 50 per cent of the assessed value of the building unless permanently changed to a conforming use. If such nonconforming use is discontinued for a period of 12 months, any future use of the building and premises shall conform to the ordinance.

¶ 8. A municipality may elect not to be barred by such statewide statutory standards if it specifically chooses to do so by adoption of a charter ordinance and rejection of specific statutory provisions pursuant to Wis. Stat. § 66.0101(a)(b). The charter ordinance must specifically reject the provisions the municipality does not wish to follow. Fox Point has not by ordinance specifically elected to reject the use of Wis. Stat. § 62.23(7)(h). Consequently, we must attempt to construe the village ordinances in a manner consistent with statutory provisions involving the same matters.

¶ 9. The Village of Fox Point Code defines a "nonconforming use" as "[a]ny use of a building or premises which does not conform with the regulations of the district in which it is situated as provided for by this chapter." VFPC § 14.02(23) (emphasis added). A related ordinance, VFPC § 14.04, sets out additional provisions relative to nonconforming uses of property. It provides in relevant part:

NONCONFORMING USES. Except as hereafter provided, any lawful nonconforming use existing on April 22, 1958 may be continued, but if a nonconforming use is discontinued for a period of 12 months, an [sic] future use of the building and premises shall conform to this chapter. (In residence, business, semi-business and institutional districts, nonconforming buildings existing on April 22, 1958 may be altered or reconstructed on the lot... provided that the value of such changes shall not exceed fifty percent (50%) of the assessed valuation of such buildings, and provided the use of such building[s] is not changed.)

¶ 10. The effective date of VFPC § 14.04 is identified as April 22, 1958. If the building in question was used in a manner that was nonconforming to the then-existing zoning code, as Fox Point has defined that term, then the building is subject to the fifty percent limit on remodeling.

C. The McGee house

¶ 11. The McGees' house was built in 1927. There is no evidence that the house was ever used in any manner other than as a residence. There is no evidence that use as a residence violated any applicable municipal zoning code prior to April 22,1958. The Hillises cite no nonconformity as to use of the building, which nonconformity existed before April 22, 1958.

¶ 12. In 1989, Fox Point adopted VFPC § 17.03 (hereafter, "bluff ordinance"). It provides: "Except as hereinafter provided, no building or structure shall be erected on or over the slope of the lake bluff or on or over the slope of a ravine bank or at the foot of the lake bluff or ravine in the Village of Fox Point." The Hillises claim that the McGees' house violates § 17.03.

¶ 13. The Board of Appeals assumed, for purposes of its decision, that the McGees' house was over the bluff line at some point on the house footprint. However, the Board of Appeals concluded that VFPC § 14.04, (the nonconforming use zoning ordinance), was intended to and did apply to the use to which the building was put, not to the physical structure of the building itself. With that interpretation, the Board of Appeals concluded that because the use was conforming to all zoning requirements in 1958, it did not become a "nonconforming use" simply because, thirty years later, an ordinance relating to the location of buildings was adopted by the Village. We agree with that conclusion.

¶ 14. As the circuit court points out in its careful analysis, the first two sentences of VFPC § 14.04 must be read together. The first sentence permits continuation of a nonconforming use, unless that use is discontinued for a period of twelve months. The second sentence elaborates on what will happen to buildings, the use of which was nonconforming on April 22, 1958 or thereafter; the fifty percent of value limitation on modifications will be imposed. This reading is also consistent with the applicable provisions of Wis. Stat. § 62.23(7)(h). Both § 14.04 and § 62.23(7)(h) limit the repairs and improvements that can be made on a structure that is used in a manner that does not conform to uses permitted by applicable zoning codes. It is apparent that the purpose of these provisions is to ultimately eliminate structures that are being used in a manner not conforming to the zoning plan.

¶ 15. The public policy apparently advanced by both the statute and the ordinance is to balance the interests of property owners (in favor of their free use of private property), and the powers of a government entity (to control land use for the purpose of promoting public health, safety, and general welfare). See Cohen v. Dane County Bd. of Adjustment, 74 Wis. 2d 87, 90-91, 246 N.W.2d 112 (1976). The balancing method employed is to force the phase-out of uses that do not conform with the zoning plan {e.g., a tavern in a residential area) by limiting the repairs and structural modifications permitted to buildings in which the nonconforming use is taking place. However, in this case, the use of the building is now, and always has been, in full conformity with the applicable zoning provisions; it was a residence when it was built, it was a residence when VFPC § 14.04 was adopted, and it remains a residence today in a geographic area that was and is zoned for residential use.

¶ 16. The approach urged by the Hillises contradicts the Wisconsin Supreme Court's recognition that the rights of municipalities and landowners must indeed be balanced. See Cohen, 74 Wis. 2d at 91 ("Zoning ordinances are in derogation of the common law and, hence, are to be construed in favor of the free use of private property."). We decline to take the path of upsetting that balance; we believe it reflects sound public policy and a change of the existing balance is a policy matter for our supreme court. See Margoles v. LIRC, 221 Wis. 2d 260, 271-72 n.4, 585 N.W.2d 596 (Ct. App. 1998) ("[Court of Appeals] is an error-correcting court and we are not free to overrule precedent or set policy.").

CONCLUSION

¶ 17. We conclude that the Board of Appeals' interpretation of the Village of Fox Point Code was correct and is consistent with relevant Wisconsin statutes. The McGees' request was not subject to the fifty percent limitation found in VFPC § 14.04. We affirm the Board of Appeals' decision.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.


author: NETTESHEIM, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Christopher G. Tillman, Defendant-Appellant.

    Court of Appeals

      No. 04-0966.

      Submitted on briefs February 3, 2005.

      Decided March 30, 2005.

    2005 WI App 71
    (Also reported in 696 N.W.2d 574.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Christopher G. Tillman, pro se.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Warren D. Weinstein, assistant attorney general.
    Before Anderson, PJ., Brown and Nettesheim, JJ.

       Petition to review denied 7-28-05.

   NETTESHEIM, J.

¶ 1. In State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-82, 517 N.W.2d 157 (1994), the supreme court held that: (1) all grounds for relief under Wis. Stat. § 974.06 (2003-04) must be raised in a petitioner's original, supplemental, or amended motion; (2) an issue finally adjudicated in a prior postconviction motion may not serve as the basis for a further § 974.06 motion; and (3) issues that could have been, but were not, raised in an earlier § 974.06 motion may not be raised in a later motion unless the party establishes "sufficient reason" for failing to previously raise the issues.

¶ 2. The issue on the instant appeal is whether the procedural bar of Escalona-Naranjo may be applied when a prior appeal was processed under the no merit procedure set forth in Wrs. Stat. Rule 809.32. For the reasons stated below, we conclude that the procedural bar of Escalona-Naranjo, as codified in Wis. Stat. § 974.06(4), may be applied in the appropriate case. We further hold under facts and history of this case that the issues in Christopher Tillman's current appeal are subject to the procedural bar of Escalona-Naranjo.

¶ 3. Following his pleas of no contest, Tillman was convicted of 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. Tillman appeals from a post-conviction order rejecting his double jeopardy and multiplicity claims and his further claim that he was sentenced on the basis of inaccurate information.

¶ 4. Tillman's convictions and sentence were previously upheld by this court in a no merit appeal, State v. Tillman, No. 98-1560-CRNM, unpublished slip op. (Wis. Ct. App. Dec. 23, 1998). By a subsequent summary order, we rejected Tillman's further challenge to his sentence. State v. Tillman, No. 00-3530, unpublished slip op. (Wis. Ct. App. June 12, 2002). Because Tillman has not demonstrated a sufficient reason for failing to raise his current arguments in the previous no merit appeal, we conclude that he is barred from now doing so in this appeal. See Escalona-Naranjo, 185 Wis. 2d at Í81-82. Therefore, we affirm the order denying post-conviction relief.

BACKGROUND

¶ 5. During the evening hours of June 20, 1997, Tillman was involved in an armed robbery and a subsequent street chase during which Tillman was seen firing a handgun towards the robbery victim and another person. As a result, the State filed a criminal complaint against Tillman alleging one count of armed robbery with use of force as a party to a crime, one count of possession of a firearm by a felon, and two counts of attempted first-degree intentional homicide as a party to a crime. All charges carried a habitual offender allegation. Tillman's total prison exposure on the charges was 168 years. On June 30, 1997, Tillman waived his right to a preliminary hearing, and the State filed an information alleging the same charges as stated in the complaint. Tillman entered pleas of not guilty.

¶ 6. The State and Tillman, who was represented by counsel, then reached a plea agreement. However, the initial plea hearing was adjourned because the proposed agreement did not jibe with the agreed-upon penalty exposure. A second plea hearing was also adjourned due to an error in the amended information as to the convictions supporting the habitual offender allegation.

¶ 7. The further and final plea hearing was held on September 5,1997, when Tillman pled no contest to three counts of first-degree reckless endangerment by use of a dangerous weapon as a party to a crime; one count of second-degree reckless endangerment as a party to a crime and one count of possession of a firearm by a felon. In exchange, the State dismissed the habitual offender allegations. On October 3, 1997, the trial court sentenced Tillman to a total of twenty-nine years in prison. Later that day, the State filed yet another amended information to reflect the third charge of first-degree recklessly endangering safety so as to conform to Tillman's no contest pleas. The judgment of conviction was filed on October 7, 1997.

¶ 8. On November 18, 1997, Tillman filed a Notice of Intent to Pursue Postconviction Relief. On July 13, 1998, Tillman's appointed appellate counsel filed a Notice of Appeal indicating that he anticipated filing a no merit report pursuant to Wis. Stat. Rule 809.32. Appellate counsel followed with the no merit report, which addressed whether there was any basis for Tillman to withdraw his no contest pleas and whether the trial court had properly exercised its sentencing discretion. Tillman, No. 98-1560-CRNM, unpublished slip op. at 2. Tillman filed a response to the no merit report, questioning whether there was a factual basis for his pleas to the charges that did not relate to the two victims identified in the complaint. Specifically, Tillman questioned whether the identification of the victims as "name unknown" and "bystanders" was sufficient. Id. at 3.

¶ 9. In a decision issued on December 23, 1998, this court analyzed appellate counsel's no merit report and further conducted our own independent examination of the record. We agreed with appellate counsel that a review of the criminal complaint supported the charges to which Tillman had pled. We said that the charges "are supported by the time of day and the residential nature of the neighborhood — members of the public were conceivably in the vicinity of the gunfight, and their safety was endangered by Tillman's reckless conduct." Id. at 3. We therefore concluded that there were no issues of arguable merit. Id. at 1 ("Upon an independent review of the record, we conclude that no arguably meritorious issues could be raised on appeal."). Accordingly, we affirmed the judgment of conviction.

¶ 10. On September 29, 2000, Tillman, acting pro se, filed a further postconviction motion, seeking sentence modification on the grounds that the State had improperly charged him as a repeater. Following a hearing, the trial court denied the motion. Tillman subsequently appealed. By summary order dated June 12, 2002, we rejected Tillman's argument, holding that although the repeater allegations were recited in the amended information, the record confirmed, consistent with the plea agreement, that Tillman was not sentenced as a repeater. Tillman, No. 00-3530, unpublished slip op. at 1.

¶ 11. This history brings us to Tillman's latest postconviction motion which is the subject of this appeal. On December 10, 2003, Tillman, again acting pro se, filed a motion to vacate his sentence pursuant to Wis. Stat. § 973.13 on grounds of double jeopardy and multiplicity and because he was sentenced on the basis of inaccurate information. In a written decision, the circuit court addressed Tillman's motion on the merits and denied the motion without a hearing. The court stated, "[t]he file, including the prior Court of Appeals' decisions, reflect Tillman's convictions in this matter were upon accurate information without violation of any due process rights, without duplicitous charges and did not subject him to 'double jeopardy' as Tillman erroneously understands that concept."

¶ 12. Still acting pro se, Tillman appeals.

DISCUSSION

¶ 13. On a threshold basis, the State contends that Tillman's claims were previously adjudicated by our December 23, 1998 no merit decision holding that neither appellate counsel's no merit report nor our independent examination of the record demonstrated any issues of arguable merit. Therefore, the State argues that Tillman's claims are barred under Wis. Stat. § 974.06(4) and Escalona-Naranjo. No published opinion to date has answered whether the procedural bar of Escalona-Naranjo and § 974.06(4) can be premised upon a prior no merit appeal.

¶ 14. The facts and procedural history underlying the instant appeal are undisputed. Therefore, whether Tillman's appeal is procedurally barred by our prior no merit decision pursuant to Escalona-Naranjo and Wis. Stat. § 974.06(4) is a question of law which we review de novo. See State v. Bodoh, 226 Wis. 2d 718, 724, 595 N.W.2d 330 (1999) (the application of law to a set of undisputed facts is reviewed de novo).

The No Merit Procedure

¶ 15. Tillman's previous appeal was decided in the context of the no merit procedure under Wis. Stat. Rule 809.32. In considering the application of Wis. Stat. § 974.06 to a prior no merit appeal, we begin by examining the no merit procedure in Wisconsin as compared to that of a conventional appeal.

¶ 16. The no merit appeal procedure has its genesis in Anders v. California, 386 U.S. 738 (1967), and is codified in Wis. Stat. Rule 809.32. In Anders, the United States Supreme Court addressed "the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal." Id. at 739. The Court determined that the constitutional requirements of substantial equality and fair process can only be met when counsel acts as an active advocate on behalf of his client. Id. at 744. The Court held:

[ I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous ....
This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel.

Id. at 744-45. Any motion to withdraw pursuant to Anders "necessarily implicates the merits of an appeal, because the premise of the motion is that the appeal is frivolous." Wilkinson v. Cowan, 231 F.3d 347, 351 (7th Cir. 2000).

¶ 17. Wisconsin Stat. Rule 809.32 incorporates the no merit procedure set forth in Anders, as well as setting forth more detailed requirements. First, appointed counsel examines the record for potential appellate issues of arguable merit. See Rule 809.32(1)(a) ("The no merit report shall identify anything in the record that might arguably support the appeal and discuss the reasons why each identified issue lacks merit."). Next, the defendant has the opportunity to respond to the no merit report and raise additional issues. Rule 809.32(l)(e). Next, as contemplated by Anders, the appellate court not only examines the no merit report but also conducts its own scrutiny of the record to see if there are any potential appellate issues with arguable merit. See Anders, 386 U.S. at 744-45. Finally, the court's no merit decision sets forth the potential appellate issues and explains in turn why each has no arguable merit.

¶ 18. This procedure demonstrates that, 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 appeal does not receive the benefit of a skilled and experienced appellate court also examining the record for issues of arguable merit. Instead, the court's role in a conventional appeal is limited to addressing the issues briefed by appellate counsel. Nor, as a general rule, is the defendant in a conventional appeal permitted to separately weigh in by raising objections to counsel's brief or by raising additional issues. Contrast the no merit process which allows the defendant to respond to appellate counsel's no merit report. As noted earlier, the no merit process "necessarily implicates the merits of an appeal" because the premise of appellate counsel's motion to withdraw following the filing of the no merit report "is that the appeal is frivolous." Wilkinson v. Cowan, 231 F.3d at 351. "This can only be understood as a merits-based decision with respect to each of the claims raised in the petition ... ." Id.

¶ 19. We therefore reject any notion that the no merit procedure is too perfunctory as a matter of law to permit the application of Wis. Stat. § 974.06(4). We conclude that when a defendant's postconviction issues have been addressed by the no merit procedure under Wis. Stat. Rule 809.32, the defendant may not thereafter again raise those issues or other issues that could have been raised in the previous motion, absent the defendant demonstrating a sufficient reason for failing to raise those issues previously. See Escalona-Naranjo, 185 Wis. 2d at 181-82.

¶ 20. In making this pronouncement, we stress that the procedural bar of Escalona-Naranjo is not an ironclad rule. State v. Crockett, 2001 WI App 235, ¶¶ 7-8, 248 Wis. 2d 120, 635 N.W.2d 673 (an issue waived under Escalona-Naranjo may still be addressed by the court in its discretion); see also State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999) (waiver is a rule of judicial administration, not jurisdiction and courts have discretion to make exceptions). We also recognize that a no merit appeal is a different breed of appeal because, while Anders envisions counsel acting as an advocate, the fact remains that counsel ultimately concludes that there are no issues of arguable merit. See Anders, 386 U.S. at 744-45. Therefore, in considering whether to apply the procedural bar of Escalona in a given case, the court (both trial and appellate) must pay close attention to whether the no merit procedures were in fact followed. In addition, the court must consider whether that procedure, even if followed, carries a sufficient degree of confidence warranting the application of the procedural bar under the particular facts and circumstances of the case.

Tillman's Claims

¶ 21. Having concluded that a prior no merit appeal may trigger the procedural bar of Escalona-Naranjo and Wis. Stat. § 974.06(4) in the proper case, we now address whether we should apply that bar to the issues raised in Tillman's current appeal.

¶ 22. In his current postconviction motion, Tillman again questions whether the facts recited in the complaint support the third charge of first-degree recklessly endangering safety while armed as a party to a crime. Tillman contends that this third charge is multiplicitous and violates his constitutional guarantee against double jeopardy because the complaint identifies only two specific victims of the shooting. Tillman reasons that because the specific identity of the victim of this additional offense has never been disclosed, it follows that this victim must be one of the victims named in the other two counts. Tillman extends this argument to his sentencing issue, complaining that the trial court thus sentenced him upon inaccurate information.

¶ 23. This court's prior no merit decision did not address Tillman's claims in terms of multiplicity and double jeopardy because Tillman did not couch his response in those terms. However, we did address the factual challenge underlying these present claims. In the prior no merit appeal, appellate counsel's no merit report and Tillman's response discussed whether a factual basis existed for the third charge of recklessly endangering safety even though the victim was not specifically identified. Tillman, No. 98-1560-CRNM, unpublished slip op. at 3. Tillman's response additionally raised a claim of ineffective assistance of counsel because "his trial counsel did not explain 'exactly who these later charges were supposedly to have endangered.' " Id.

¶ 24. After analyzing appellate counsel's no merit report and Tillman's response, and after conducting our own independent examination of the record, we concluded that there were no issues of arguable merit. We stated, "At the plea colloquy, Tillman told the court that he understood that the criminal complaint would be used as the factual basis for the charges. A review of that document supports all the charges to which Tillman pled." Id. As noted earlier, we also stated that the third charge of recklessly endangering safety was "supported by the time of day and the residential nature of the neighborhood — members of the public were conceivably in the vicinity of the gunfight, and their safety was endangered by Tillman's reckless conduct." Id. This history reveals that Tillman's current phrasing of his grievance in terms of double jeopardy and multiplicity is simply a resurrection of his prior arguments under new labels.

¶ 25. The Wisconsin Supreme Court recently restated the central holding of Escalona-Naranjo-.

[ W]e reaffirm our holding in Escalona that all claims of error that a criminal defendant can bring should be consolidated into one motion or appeal, and claims that could have been raised on direct appeal or in a previous § 974.06 motion are barred from being raised in a subsequent § 974.06 postconviction motion absent a showing of a sufficient reason for why the claims were not raised on direct appeal or in a previous § 974.06 motion.

State v. Lo, 2003 WI 107, ¶ 44, 264 Wis. 2d 1, 665 N.W.2d 756. The only excuse offered by Tillman for not having previously cast this issue in its current terms of multiplicity and double jeopardy is that his trial counsel was ineffective. However, as noted, our no merit report specifically rejected that claim. Thus, Tillman has failed to present a sufficient reason why his current "spin" on this already adjudicated issue was not previously raised.

¶ 26. Under the facts and history of this particular case, we hold that Tillman's current appellate complaints are procedurally barred under Escalona-Naranjo and Wis. Stat. § 974.06(4). Because Tillman failed to raise the issues of multiplicity or double jeopardy in his previous postconviction motions and has failed to provide a sufficient reason for failing to do so, we conclude that his claims are barred under § 974.06(4).

CONCLUSION

¶ 27. We hold under Escalona-Naranjo and Wis. Stat. § 974.06(4) that a prior no merit appeal may serve as a procedural bar to a subsequent postconviction motion and ensuing appeal which raises the same issues or other issues that could have been previously raised. We further hold under the facts and history of this case that Tillman's current issues are procedurally barred. We affirm the postconviction order denying Tillman's request for relief.

By the Court. — Order affirmed.

       Wisconsin Stat. § 974.06 governs postconviction procedure. Section 974.06(4) provides:
      AH 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.
      All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Tillman correctly notes that the habitual offender allegations were still listed in the third Amended Information and that an incorrect conviction was still listed as the basis for those allegations. However, these matters were the subject of Tillman's previous postconviction motion and appeal, which we disposed of by summary order. See State v. Tillman, No. 00-3530, unpublished slip op. (Wis. Ct. App. June 12, 2002). We concluded that Tillman had not pled to the charges as a repeater and nothing in the sentencing transcript indicated that he was sentenced as a repeater. Id. at 2.

       While all of the earlier proceedings took place before Judge Emmanuel Vuvunas, Tillman's December 10, 2003 motion was considered and denied by Judge Allan B. Torhorst.

       We note that the State has limited its briefing to only the procedural bar issue, asking leave to file a supplemental brief addressing Tillman’s issues on the merits if we should hold that Tillman is not procedurally barred from raising his appellate claims. We approve this procedure in this case.

       For instance, in Wilkinson v. Cowan, 231 F.3d 347, 349 (7th Cir. 2000), the court held that the defendant was not procedurally barred from raising a claim of ineffective assistance of counsel even though he had procedurally raised the issue because "he was not invited to file a response [to the no merit report] and he did not do so of his own initiative." While the clerk of the federal district court advised the defendant that he could respond to the no merit report, this notification did not advise that a response was a matter of right and a matter of
        obligation if the defendant wanted to preserve his claim for further review. Id. at 351. Here, however, Tillman filed a response to the no merit report.

       We take particular note that Tillman makes no claim that his appellate counsel failed to comply with the notification requirements of Wis. Stat. Rule 809.32(l)(b)2. In particular, Tillman makes no complaint: (1) that counsel failed to provide him with a copy of the transcripts and the circuit court case record (assuming that Tillman requested such materials), or (2) that counsel failed to advise him of his right to respond to the no merit report. See id.