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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.
December 23, 2009
A party may file with the Supreme Court a
David R. Schanker                                                      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. Nos.   1990CF517
Appeal Nos.                                                            2009AP396
1990CF566
2009AP397
STATE OF WISCONSIN                                                     IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
GEORGE H. PETERS,
DEFENDANT-APPELLANT.
APPEAL  from  an  order  of  the  circuit  court  for  Dane  County:
DIANE M. NICKS, Judge.   Affirmed.
Before Vergeront, Lundsten and Higginbotham, JJ.




Nos.   2009AP396
2009AP397
¶1                                                                                          PER CURIAM.    George Peters appeals an order denying his WIS.
STAT. § 974.06 (2007-08)1 motion for postconviction relief.   He was convicted in
1991 on two counts of armed robbery and two counts of felon in possession of a
firearm, as a repeat offender on all counts.   His rights to seek postconviction relief
under WIS. STAT. RULE  809.30 were exhausted in  1995 after an appeal to this
court and a petition to the supreme court.   He contended in his § 974.06 motion
that he received ineffective assistance from postconviction counsel in his RULE
809.30  proceeding  because  counsel  failed  to  raise  various  meritorious  issues
concerning the circuit court proceeding and his representation by trial counsel
during  that  proceeding.    He  contends  on  appeal  that  the  trial  court  erred  by
denying the motion without a hearing.   We affirm.
¶2                                                                                          Peters  was  a  passenger  in  a  car  stopped  by police.    The  police
discovered a firearm in Peters’ suitcase following a search of the vehicle pursuant
to the driver’s arrest.   After a criminal records check revealed that he had felony
convictions,  he  was  arrested  as  a  felon  in  possession  of  a  firearm.    He  was
subsequently tried and found guilty by a jury on the two armed robbery and two
possession charges and was sentenced and convicted as a repeat offender.   He
received consecutive thirty-year sentences for the robberies, and ten- and four-year
sentences  on  the  firearm  possessions,  the  former  concurrent  to  the  robbery
sentences and the latter consecutive to them.
¶3                                                                                          The WIS. STAT.  § 974.06 motion Peters filed in 2008 alleged that
trial counsel and/or postconviction counsel were ineffective because they failed to
1  All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise
noted.
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Nos.   2009AP396
2009AP397
pursue  the  following  issues:                                                                (1)  he  was  arrested  without  probable  cause  for
possessing a handgun as a felon, because the information police had about his
felony  record  was  incorrect;                                                                (2)  he  was  sentenced  on  inaccurate  information
because  the  circuit court considered the  same  incorrect information about his
record at sentencing; (3) the court sentenced him to ten years in prison on one of
the firearm possession charges when the maximum sentence allowed by statute
was eight years; and (4) the court sentenced him to four years as a repeater without
first imposing the maximum underlying two year sentence on the other possession
charge.
¶4                                                                                             The court acknowledged that Peters’ ten-year sentence exceeded the
maximum, but denied relief because he had already finished serving that sentence.
The court otherwise denied relief, without a hearing, because the error in the
sentencing information about Peters’ felony record was merely a technical defect,
the officer who arrested Peters had information on other felony arrests as well, and
the sentencing court was not required to impose a maximum sentence on the
underlying  offense  before  sentencing  Peters  as  a  repeater.    On  appeal  Peters
contends that each of his claims warrants a hearing.
¶5                                                                                             The circuit court need not hold a hearing on a claim of ineffective
counsel  if  the  defendant  fails  to  allege  facts  that,  if  true,  would  entitle  the
defendant to relief, or the record conclusively demonstrates that the defendant is
not entitled to relief.   See State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682
N.W.2d 433.   Whether the motion alleges sufficient facts is a question of law.   Id.
If  the  court  determines  that  the  record  conclusively  demonstrates  that  the
defendant  is  not  entitled  to  relief,  we  review  whether  the  court  erroneously
exercised  its  discretion  in  making  that  determination.    State  v.  Bentley,            201
Wis. 2d 303, 309-10, 548 N.W.2d 50 (1996) (citation omitted).
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Nos.   2009AP396
2009AP397
¶6                                                                                                     There is no dispute, and never has been, that Peters was convicted of
armed robbery, in a Michigan court, in 1977.   There is also no dispute that the
complaint the State filed in this matter misidentified the date and county of the
conviction, and that the error was never corrected during the proceeding.   The only
dispute is whether the misidentification provides any grounds for relief in this
proceeding, and the trial court properly determined that it did not.   It was the fact
of the armed robbery conviction, and not its exact date or location, that gave the
police probable cause to arrest Peters as a felon, even assuming that police had the
same incorrect date and location that appeared in the complaint, which is not a
known fact at this time.
¶7                                                                                                     In addition, even assuming he was illegally arrested, his arrest did
not lead to any evidence that was arguably suppressible because of the arrest.   The
handgun  that  Peters  seeks  to  suppress  was  discovered  while  the  deputy  was
searching the vehicle Peters’ friend was driving pursuant to the friend’s arrest.
That is, the weapon’s discovery was not related to Peters’ arrest for possessing the
handgun as a felon.   Thus, even if police did not have probable cause to arrest
Peters, the record conclusively demonstrates that trial counsel had no reason to
pursue the issue, because the State either discovered the evidence used to convict
Peters before the arrest, or independent of the arrest.   See State v. Anderson, 165
Wis.  2d  441,  447-48,  477 N.W.2d  277  (1991)  (illegal arrest does not lead to
suppression  of  evidence  obtained  by  means  sufficiently  attenuated  from  the
arrest). 2
2   For reasons that are unclear, the State’s brief asserts that Peters’ Fourth Amendment
challenge to the search that revealed the firearm is an issue that he finally litigated in his first
appeal, and cannot now litigate again.   That is true but beside the point.   The issue he raises in
this appeal is not the legality of the search, but the legality of his subsequent arrest.
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Nos.   2009AP396
2009AP397
¶8                                                                                       It was also the fact of the conviction, and not the date and venue,
that was material to his sentencing.    Consequently, there would have been no
benefit to Peters had trial counsel raised the matter at sentencing.   The error would
have been subject to correction, and nothing more.   See WIS. STAT. § 971.26 (non-
prejudicial, technical errors in the complaint have no effect on proceedings).   In
short,  the  record  conclusively  demonstrates  that  neither  counsel  performed
ineffectively by failing to raise this issue, either in the suppression or sentencing
context.
¶9                                                                                       There is no requirement in Wisconsin law that the sentencing court,
when sentencing the defendant as a repeater, must first pronounce the maximum
underlying sentence, and then impose the repeater portion of the sentence.   In fact,
the preferred practice is to impose a unified sentence, as the sentencing court did
here.   See State v. Kleven,  2005 WI App  66,  ¶18 n.  4,  280 Wis.  2d  468,  696
N.W.2d 226 (court should impose sentence “without allocating any portions of the
confinement imposed among the base offense and enhancers.   Such allocation is
not required by statute or case law, and in fact, appears to not only be contrary to
the rationale of WIS. STAT. § 973.12(2), but may lead to unnecessary confusion or
claims  of  error                                                                        ….”).    Consequently,  Peters  cannot  reasonably  contend  that
postconviction counsel should have challenged the sentence on these grounds.
¶10    Peters no longer has a viable claim regarding the unlawful ten-year
sentence  imposed  on  the  other  firearm  possession  count.    Under  WIS.  STAT.
§ 973.13,  the  time  imposed  over  the  maximum  is  voided  and  the  sentence
commuted to the maximum eight years, which Peters finished serving in 1999.   No
other remedy is now available and, in any event, because the sentence has expired,
Peters can no longer challenge it under WIS. STAT.  § 974.06.    See WIS. STAT.
§ 974.06(1).
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Nos.   2009AP396
2009AP397
By the Court.—Order affirmed.
                                This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                       (b)5.
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