State v. Baugh, 94-1437

Page 400

527 N.W.2d 400

189 Wis.2d 493

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

STATE of Wisconsin, Plaintiff-Respondent, v. Patrick A. BAUGH, Defendant-Appellant.

No. 94-1437.

Court of Appeals of Wisconsin.

Nov. 9, 1994.

BROWN

Patrick A. Baugh, acting pro se, proceeds by use of a writ of coram nobis, to allege that his escape conviction was unlawful because the underlying reason for his being in custody at the time-an operating after revocation conviction-was itself unlawful. This is the fourth time that he has appealed his escape conviction. ¹ We hold that he could have raised this issue in a prior appeal. This appeal is thus governed by the principles of res judicata and dooms the claim.

Baugh is currently serving a forty-two month prison term for a felony escape conviction contrary to § 946.42(3)(a), Stats., due to an unexcused absence from the Kenosha county jail while serving time for operating a vehicle after revocation. He argues that he was not legally in custody at the time of his escape from jail. He contends that, while he was convicted for a fifth offense operating after revocation, it was, in fact, his fourth. He asserts that writs of coram nobis are issued to correct errors of fact and that issuance of the writ nullifies not only the error, but the conviction upon which the error was based. He concludes that issuance of the writ in this case would nullify the operating after revocation charge; hence, the escape charge would also be nullified.

In State v. Baugh, No. 92-0923, unpublished slip. op. at 7 (Wis. Ct.App. Feb. 24, 1993), Baugh petitioned for habeas corpus relief alleging that his conviction for operating after revocation was unlawful. He argued that his plea to the operating after revocation charge was not knowing or voluntary, that the prosecution abused its discretion in charging him with that offense rather than one of violating the conditions of his occupational license, that the offense was a forfeiture rather than a misdemeanor, and sentencing concerns. This court rejected each of the claims.

The State argues that res judicata principles apply. "The doctrine of res judicata states that a final judgment is conclusive in all subsequent actions between the same parties as to all matters which were litigated or which might have been litigated in the former proceedings." DePratt v. West Bend Mutual Insurance Co., 113 Wis.2d 306, 310, 334 N.W.2d 883, 885 (1983). The State asserts that this doctrine extends to cases where issues are litigated on a previous appeal and the appellant then attempts a further appeal raising new issues to litigate. State ex rel. Littig v. Superior Court, 231 Wis. 58, 62, 285 N.W. 419, 421 (1939).

Baugh responds by citing federal cases purporting to say that res judicata does not bar a prisoner from relitigating on habeas corpus or coram nobis issues raised in the original appeal. See Polizzi v. United States, 550 F.2d 1133, 1135 (1976). However, these cases also say that a district court may refuse to entertain a repetitive petition absent a showing of manifest injustice or a change in the law. Id.

We hold that this...