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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                       This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
May 1, 2012
A party may file with the Supreme Court a
Diane M. Fremgen                                                                                                                                             petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                                                                    Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                             and RULE 809.62.
                                                                                                                                                             Cir. Ct. No.   2001CF292
Appeal No.                                                                            2011AP1779
STATE OF WISCONSIN                                                                                                                                           IN COURT OF APPEALS
                                                                                                                                                             DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
CHRISTOPHER D. JOHNSON,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Milwaukee County:
RICHARD J. SANKOVITZ, Judge.  Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1                                                                                    PER  CURIAM.      Christopher  D.  Johnson  appeals  from  an  order
denying his motion for postconviction relief, filed pursuant to WIS. STAT. § 974.06




No.   2011AP1779
(2009-10).1   The circuit court denied the motion as procedurally barred, but also
rejected the motion on its merits.   We agree that the motion is procedurally barred,
and we affirm.
¶2                                                                                                  In  2001, Johnson was charged with one count of armed robbery,
with the threat of force, as party to a crime.   At that time, the charge was a Class B
felony,  punishable  by  up  to  sixty  years’  imprisonment.     See  WIS.  STAT.
§§ 943.32(1)(b)-(2)  (2001-02) and  939.50(3)(b)  (2001-02).    Pursuant to a plea
agreement, Johnson pled guilty to one count of robbery with the use of force, a
Class  E  felony,  reducing  his  exposure  to  fifteen  years’  imprisonment.    See
§§ 943.32(1)(a)                                                                                     (2001-02)  and                                                           939.50 (3)   (e)   (2001-02).   The  circuit  court
sentenced Johnson to two years’ initial confinement and seven years’ extended
supervision, a sentence based partially on Johnson’s cooperation with the State in
another defendant’s trial.
¶3                                                                                                  Johnson did not take a direct appeal.   He did, however, file multiple
pro se postconviction motions regarding his sentence prior to the first revocation
of his extended supervision.    Johnson also appears to have filed at least two
motions after the revocation, and two more motions after the second revocation of
his supervision.2
1  All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise
noted.
2  After the third revocation of extended supervision, Johnson took a direct appeal, which
resulted in a no-merit report.   We do not discuss that appeal further because, in an appeal from
revocation of extended supervision, our review would have been limited to the sentence after
revocation and not the original judgment of conviction or the plea process.   See State v. Drake,
184 Wis. 2d 396, 399-400, 515 N.W.2d 923 (Ct. App. 1994); see also WIS. STAT. § 302.113(9)(g)
(review of revocation only available through certiorari).
2




No.   2011AP1779
¶4                                                                                               In 2011, Johnson filed a postconviction motion seeking to withdraw
his guilty plea.   He alleged he “had not been duly advised of his right to appeal at
sentencing” and complained that there was an insufficient factual basis to support
the plea.   The motion specifically notes that the conviction in this case led to him
being deemed a “career offender” in federal court, where Johnson pled guilty to
possession with the intent to distribute crack cocaine and possession of a firearm
in furtherance of drug trafficking.3
¶5                                                                                               The  circuit  court  denied  the  motion,  explaining  that  State  v.
Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), barred the motion
because Johnson gave “no reason why he failed to raise his issues previously.”
The circuit court also rejected the motion on its merits.   Johnson appeals.
¶6                                                                                               WISCONSIN STAT. § 974.06 was created in 1969 to “‘replace habeas
corpus as the primary method in which a defendant can attack his conviction after
the  time  for  appeal  has  expired.’”    Escalona,                                             185  Wis. 2d  at  176  (citation
omitted).                                                                                        “All grounds for relief available to a person under this section must be
raised in his or her original, supplemental or amended motion.”   See § 974.06(4).
“Any ground … not so raised … 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[.]”   Id.   That is, § 974.06 “‘compel[s] a prisoner to raise all questions
available to him in one motion.’”   See State v. Lo, 2003 WI 107, ¶18, 264 Wis. 2d
1, 665 N.W.2d 756 (citation omitted).
3  As a result of this “career offender” designation, it appears that Johnson’s exposure
under federal sentencing guidelines was increased from a possible total ninety to ninety-seven
months’ imprisonment to a possible total of 413 to 515 months’ imprisonment.   Johnson was
ultimately sentenced to 142 months’ imprisonment in federal court.
3




No.   2011AP1779
¶7                                                                                                   After his conviction and sentencing but prior to the current motion,
and excluding motions following the extended supervision revocations, Johnson
appears to have filed at least eight postconviction motions.4   As the circuit court
noted, however, Johnson has not offered with his current motion any “sufficient
reason” for his failure to raise his issues—notice of appeal rights and sufficient
factual basis—in those prior motions.
¶8                                                                                                   Johnson’s first attempted  “explanation” for not raising his issues
earlier  was  that  the  circuit  court  failed  to  personally  advise  him  of  his
postconviction  and  appellate  rights.5   However,  Johnson  does  not  attempt  to
explain  how  such  a  failure  constitutes  a  sufficient  reason  under  Escalona.
Irrespective of whether the circuit court’s failure to personally advise Johnson of
his rights would be a basis for plea withdrawal,6 it is an undisputed fact that
Johnson  received  and  signed  the  CR-233  form,  which  advised  him  of  his
postconviction and appeal rights even if the circuit court did not.
¶9                                                                                                   Johnson’s  second  explanation  for  his  failure  to  raise  his  current
issues previously is that his prior motions focused on his sentence.   As the circuit
4  By this court’s count, there are at least eight motions—excluding a motion for sentence
credit and a motion regarding the details of paying a restitution order—preceding the first
revocation.   These motions are dated by Johnson on October 21, October 22, October 24, and
October 26, 2002; November 13, and November 24, 2002; and February 5, 2003.   An additional
motion with no date was filed September 30, 2003.
5  On appeal, Johnson does not address the circuit court’s invocation of the procedural
bar.  He acknowledges that the circuit court invoked the bar but makes no argument on whether it
was error for the circuit court to do so.
6  We take this opportunity to remind Johnson that, in the event that his plea withdrawal
motion had been successful, the original armed robbery charge, and the corresponding potential
sixty-year penalty, would be reinstated.   See State v. Dielke, 2004 WI 104, ¶26, 274 Wis. 2d 595,
682 N.W.2d 945.
4




No.   2011AP1779
court noted, however, such an explanation “ignores the mandate of WIS. STAT.
§ 974.06  and  Escalona.”    We  agree.                                                “We  need  finality  in  our  litigation.…
Successive motions and appeals, which all could have been brought at the same
time, run counter to the design and purpose of the legislation.”   Escalona, 185
Wis. 2d at 185.   Issues of constitutional magnitude like those Johnson attempts to
raise now are not exempt from this procedural bar.   See id. at 181-82.
¶10    Because we conclude  that the  circuit court properly invoked the
Escalona procedural bar, we do not reach the question of whether the circuit court
properly rejected the motion on its merits.   See State v. Blalock, 150 Wis. 2d 688,
703,  442 N.W.2d  514  (Ct. App.  1989)  (cases should be decided on narrowest
possible grounds).
By the Court.—Order affirmed.
                                                                                       This  opinion  shall  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                              (b)5.
5

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