State v. Dudas

1

State of Wisconsin, Plaintiff-Respondent, v. David G. Dudas, Defendant-Appellant.

No. 2023AP449

Court of Appeals of Wisconsin, District III

December 3, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.

APPEAL from an order of the circuit court for Outagamie County: Cir Ct. No. 2013CF746 TAMMY JO HOCK, Judge. Affirmed.

Before Stark, P.J., Hruz and Neubauer, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

PER CURIAM.

¶1 David G. Dudas appeals from a circuit court order denying his WIS. STAT. § 974.06 (2021-22)^[1] postconviction motion without a hearing. Because we conclude that all of the ineffective assistance of counsel claims in Dudas' motion are either procedurally barred, insufficiently pled, or brought in the wrong forum, we affirm the court's order.

BACKGROUND

¶2 Dudas was convicted, following a jury trial, of fourteen counts of second-degree sexual assault by use of force eleven counts of strangulation and suffocation; and one count each of first-degree sexual assault, second-degree reckless injury, substantial battery, misdemeanor intimidation of a witness, and misdemeanor battery, based on acts he committed against his then-wife, Jane.^[2]The facts underlying the convictions in this case were set forth in our prior decision affirming the convictions on direct appeal; therefore, we will not repeat them here. See State v. Dudas (Dudas I), No. 2016AP2443-CR, unpublished slip op ¶¶3-27 (WI App Feb. 18, 2020).^[3]

¶3 On September 9, 2021, Dudas filed the WIS. STAT. §974.06 postconviction motion that is the subject of this appeal. He later filed an amended motion, comprising seventy-five pages of arguments. Thereafter, the circuit court sent a letter directing that the motion be reduced to no more than twenty-five pages.^[4] Dudas filed a second amended motion which complied with the court's page limit.

¶4 That second amended motion argued ten claims for ineffective assistance of trial counsel, postconviction counsel, and appellate counsel.^[5] The State responded to Dudas' second amended motion, and the circuit court eventually denied the motion without a hearing. The court concluded that Dudas' claims were procedurally barred because they were previously litigated, that Dudas failed to develop an argument that postconviction counsel was constitutionally ineffective, and/or that Dudas' arguments concerning appellate counsel were required to be litigated in this court, rather than the circuit court. Dudas appeals.

DISCUSSION

¶5 In this appeal, Dudas asserts that he is entitled to a hearing on his WIS. STAT. § 974.06 postconviction motion and that the circuit court erred by denying him one. The State disagrees, arguing that Dudas' "arguments are all forfeited, procedurally barred if not forfeited, or raised in the wrong forum."

¶6 Generally, a defendant is barred from raising claims in a WIS. STAT. § 974.06 motion that were or could have been raised on direct appeal or in a previous § 974.06 motion unless he or she presents a "sufficient reason" for failing to raise those claims previously or failing to do so adequately. See § 974.06(4); State v. Escalona-Naranjo, 185 Wis.2d 168, 184-85, 517 N.W.2d 157 (1994). A defendant is not entitled to relief on claims that are procedurally barred. See State v. Romero-Georgana, 2014 WI 83, ¶71, 360 Wis.2d 522, 849 N.W.2d 668. It is the defendant's burden to show the existence of a sufficient reason. State v. Crockett, 2001 WI.App. 235, ¶10 n.3, 248 Wis.2d 120, 635 N.W.2d 673. Further, a "matter once litigated may not be relitigated in a subsequent postconviction proceeding no matter how artfully the defendant may rephrase the issue." State v. Witkowski, 163 Wis.2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991). Whether the claims raised in Dudas' § 974.06 motion are procedurally barred is a question of law that we review de novo. See State v. Thames, 2005 WI.App. 101, ¶10, 281 Wis.2d 772, 700 N.W.2d 285.

¶7 "In some instances, ineffective assistance of postconviction counsel may be a sufficient reason for failing to raise an available claim in an earlier motion or on direct appeal." Romero-Georgana, 360 Wis.2d 522, ¶36. However, "if the defendant fails to allege why and how his [or her] postconviction counsel was constitutionally ineffective-that is, if the defendant asserts a mere conclusory allegation that his [or her] counsel was ineffective-his [or her] 'reason' is not sufficient." Id. Further, a defendant must demonstrate that the new claims are "clearly stronger" than the claims that postconviction counsel previously presented. Id., ¶¶45-46.

¶8 In order to obtain a hearing on a postconviction motion, a defendant must allege material facts sufficient to warrant the relief sought. State v. Allen, 2004 WI 106, ¶¶9, 36, 274 Wis.2d 568, 682 N.W.2d 433. "Whether a defendant's postconviction motion alleges sufficient facts to entitle the defendant to a hearing for the relief requested is a mixed standard of review." Id., ¶9. We first determine whether the motion on its face alleges sufficient material facts-"e.g., who, what, where, when, why, and how"-that, if true, would entitle the defendant to the relief he or she seeks. Id., ¶¶9, 36. This question is one of law that we review de novo. State v. Bentley, 201 Wis.2d 303, 309-10, 548 N.W.2d 50 (1996). If the motion raises sufficient material facts, the circuit court must hold an evidentiary hearing. Id. at 310.

¶9 If, however, "the motion does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing." Allen, 21A Wis.2d 568, ¶9. The circuit court's discretionary decisions are reviewed "under the deferential erroneous exercise of discretion standard." Id.

¶10 On appeal, Dudas presents several claims of ineffective assistance of trial, postconviction, and appellate counsel for our review. Absent one, Dudas asserts the same claims that he brought in his second amended WIS. STAT. § 974.06 motion before the circuit court.^[6] For the reasons that follow, we conclude that all of Dudas' claims are procedurally barred, insufficiently developed, or brought in the wrong forum. Therefore, because the record conclusively demonstrates that Dudas is not entitled to relief, we also conclude that the circuit court did not erroneously exercise its discretion by denying Dudas' motion without a hearing.

I. Jane's cross-examination

¶11 Dudas raises two arguments regarding Jane's cross-examination. First, Dudas argues that trial counsel provided ineffective assistance by failing to object on confrontation clause grounds to the circuit court's limitation of Jane's cross-examination.^[7] During cross-examination, trial counsel asked Jane whether the sexual assaults occurred only during the charging period or also before the charging period, and the State objected. In response, trial counsel claimed an exception to the rape shield statute based on the evidence being Jane's past sexual conduct with Dudas. See Wis. STAT. § 972.1 l(2)(b)l. Trial counsel also specifically argued that Dudas had a "right to present [a] defense under Chambers v. Mississippi[, 410 U.S. 284 (1973)]."

In this appeal, Dudas now asserts that rather than arguing the right to present a defense, trial counsel should have framed the issue as a confrontation clause violation and that the failure to do so constitutes ineffective assistance.

¶12 We conclude that this issue has already been litigated and is, therefore, barred under Witkowski. In Dudas I, we reached the merits of whether the "circuit court erred by limiting [Dudas'] right to cross-examine Jane and present 'other evidence regarding prior BDSM sex during their twenty-four year marriage,'" despite acknowledging that Dudas had forfeited the argument-on confrontation clause grounds-by failing to raise it in the circuit court. Dudas I, No. 2016AP2443-CR, ¶¶39, 43-45. We specifically explained that "the right to confront a witness and the right to present a defense are 'opposite sides of the same coin,' insomuch as they grant a defendant a right to present evidence." Id., ¶46 (citation omitted). We further determined that "any probative value that Jane's past sexual conduct with Dudas had toward whether she consented to the acts with which Dudas was charged was far outweighed by its inflammatory and prejudicial nature" and "could confuse the jury." Id., ¶¶49-50. Thus, we concluded that the court committed no constitutional error by limiting Jane's cross-examination. Id., ¶50.

¶13 Dudas now argues, however, that "[t]he issue raised [in Dudas I] was that the [circuit] court limited Dudas'[] right to confrontation by limiting cross-examination. The issue in Dudas'[] [second amended] motion was that trial counsel failed to argue the right to confrontation applied when the court limited Dudas's cross-examination. The issue has never been litigated."

¶14 Dudas appears to misunderstand the law on this issue. The error complained of in Dudas I was that Dudas' cross-examination of Jane was improperly limited. On that issue, we determined that Dudas' constitutional rights were not violated; therefore, that issue has already been litigated and our decision is the law of the case. See State v. Jensen, 2021 WI 27, ¶13, 396 Wis.2d 196, 957 N.W.2d 244 ("The law of the case is a 'longstanding rule' that requires courts to adhere to an appellate court's ruling on a legal issue 'in all subsequent proceedings in the trial court or on later appeal.'" (citation omitted)).

¶15 The fact...