State v. David D. Harris

COURT OF APPEALS
DECISION NOTICE
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.
February 11, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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.

Appeal No. 2023AP624 Cir. Ct. No. 2015CF5452

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DAVID D. HARRIS,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
MICHAEL J. HANRAHAN, Judge. Affirmed.

Before White, C.J., Donald, P.J., and Colón, J.

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).
No. 2023AP624

¶1 PER CURIAM. David D. Harris, pro se, appeals from an order of
the circuit court denying his WIS. STAT. § 974.06 (2021-22),1 postconviction
motion without a hearing. For the reasons set forth below, we affirm.

BACKGROUND

¶2 On December 12, 2015, the State charged Harris with several
criminal charges including possession with intent to deliver both heroin and
cocaine, racketeering, and operation of a motor vehicle without the owner’s
consent, all stemming from a large, sophisticated drug dealing operation run by a
group that called themselves the Big Money Addicts.

¶3 The case proceeded to a jury trial that lasted over two weeks,
involved nearly fifty witnesses, and had over one hundred exhibits. The jury
found Harris guilty of six of the twelve charges on which Harris proceeded to trial.
The jury did not reach a verdict on the remaining six charges, and the circuit court
ordered a mistrial on those charges. Harris, however, pled guilty to three of the
remaining six charges following the trial, and in exchange for Harris’s plea, the
final three charges were dismissed, with two of the three dismissed charges read in
for sentencing purposes. The circuit court sentenced Harris to a total of forty-one
years and six months of incarceration, composed of twenty-three years and six
months of initial confinement and eighteen years of extended supervision.

¶4 On a direct appeal represented by counsel, Harris argued that the
evidence was insufficient to support his conviction and that the circuit court

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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erroneously exercised its discretion when it denied a motion for a mistrial. We
rejected Harris’s arguments and summarily affirmed. See State v. Harris, No.
2020AP389-CR, unpublished op. and order (WI App Oct. 19, 2021). The
Wisconsin Supreme Court denied Harris’s petition for review.

¶5 On July 20, 2022, Harris filed a motion pursuant to WIS. STAT.
§ 974.06 and raised three claims of ineffective assistance of trial counsel and a
claim that postconviction counsel was ineffective. The circuit court denied
Harris’s motion without a hearing and found that Harris’s claims were
procedurally barred. In the alternative, the circuit court found that Harris’s claims
failed as a result of being conclusory or the record conclusively demonstrating that
Harris was not entitled to relief. Harris now appeals.

DISCUSSION

¶6 “Once a defendant’s direct appeal rights are exhausted or the time
for filing an appeal has expired, the defendant may collaterally attack his
conviction via a motion under WIS. STAT. § 974.06.” State v. Evans, 2004 WI 84,
¶32, 273 Wis. 2d 192, 682 N.W.2d 784, abrogated on other grounds by State ex
rel. Coleman v. McCaughtry, 2006 WI 49, 290 Wis. 2d 352, 714 N.W.2d 900.
However, absent a showing of a sufficient reason, claims that a defendant could
have raised earlier but did not are barred. State v. Escalona-Naranjo, 185 Wis. 2d
168, 185-86, 517 N.W.2d 157 (1994). “Whether a WIS. STAT. § 974.06 motion
alleges a sufficient reason for failing to bring available claims earlier is a question
of law subject to de novo review.” State v. Romero-Georgana, 2014 WI 83, ¶30,
360 Wis. 2d 522, 849 N.W.2d 668.

¶7 In this case, Harris argues that the circuit court erroneously denied
his WIS. STAT. § 974.06 motion without a hearing and that Escalona-Naranjo’s

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procedural bar does not apply to him because he never filed a motion under WIS.
STAT. § 974.02. Harris misunderstands the procedural bar. Rather, “issues that
were raised or could have been raised during the direct appeal or in a previous
§ 974.06 motion may not be brought in a subsequent § 974.06 motion absent a
showing of a ‘sufficient reason.’” Evans, 273 Wis. 2d 192, ¶33 (emphasis added;
citation omitted). Harris has clearly pursued a direct appeal. See Harris, No.
2020AP389-CR. Thus, Escalona-Naranjo’s procedural bar applies absent a
showing of a sufficient reason for failing to raise his arguments earlier, and on this
point, we conclude that Harris has failed to make a showing of a sufficient reason
to overcome Escalona-Naranjo’s procedural bar.

¶8 In his WIS. STAT. § 974.06 motion, Harris raised three main claims
of ineffective assistance of trial counsel and raised a claim of ineffective assistance
of postconviction counsel for failing to raise trial counsel’s ineffectiveness. As
provided in his postconviction motion, Harris contends that postconviction
counsel’s inability to challenge her own ineffectiveness constitutes a sufficient
reason to overcome the procedural bar. We disagree.

¶9 “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. Such an
instance requires a showing that the current claims that the defendant wishes to
bring “are clearly stronger than the claims postconviction counsel actually
brought.” Id., ¶4. Despite this requirement, Harris engages in no comparative
analysis of the claims that his postconviction counsel pursued in his direct appeal
with the claims that he currently raises in his WIS. STAT. § 974.06 motion. He
further focuses his attention on trial counsel’s failures and, in so doing, fails to
adequately develop why postconviction counsel was ineffective for failing to make

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No. 2023AP624

any arguments that trial counsel was ineffective. Thus, we conclude that Harris
has failed to provide a sufficient reason, and Harris’s § 974.06 motion is
procedurally barred by Escalona-Naranjo.

¶10 Alternatively, we conclude that Harris has abandoned the majority of
his arguments by either failing to raise them entirely on appeal or failing to raise
them within the framework of ineffective assistance of counsel as he did below.2
See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d
285 (Ct. App. 1998) (“[A]n issue raised in the trial court, but not raised on appeal,
is deemed abandoned.”); see also State v. Mercado, 2021 WI 2, ¶¶35, 37, 395
Wis. 2d 296, 953 N.W.2d 337 (explaining that a direct challenge to unobjected-to
errors are generally forfeited and can be reviewed through ineffective assistance of
counsel).

¶11 As a result, the only viable argument remaining is his argument
claiming ineffective assistance of counsel related to whether trial counsel was
ineffective for failing to request a lesser-included jury instruction. As it applies to
this argument, we further conclude that the record conclusively demonstrates that
Harris is not entitled to relief on this claim. See State v. Allen, 2004 WI 106, ¶9,
274 Wis. 2d 568, 682 N.W.2d 433 (stating that the circuit court has discretion to
grant or deny a hearing on a postconviction motion “if 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”).

2
We further note that Harris explicitly states in his reply brief that he abandons on
appeal the issue of trial counsel’s effectiveness related to the counts for which Harris pled guilty.

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¶12 A defendant raising a claim of ineffective assistance of counsel must
demonstrate both deficient performance by counsel and prejudice as a result of
counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687
(1984). In this case, the record conclusively demonstrates that Harris can do
neither.

¶13 More specifically, Harris argues that his trial counsel was ineffective
for failing to request a jury instruction for WIS. STAT. § 943.23(4m) as the lesser-
included offense of operating a vehicle without the owner’s consent contrary to
§ 943.23(3).3 As Harris argues, he was only a passenger in the stolen vehicles
and, therefore, at most guilty of knowingly participating as a passenger to the
operation of a vehicle without the owner’s consent, contrary to § 943.23(4m).
However, as a result of the party to a crime liability attached to Harris’s charges
for operating a vehicle without the owner’s consent contrary to § 943.23(3), Harris
may still be guilty of the charge while a passenger of the vehicle. See WIS. STAT.
§ 939.05.

¶14 A defendant is entitled to a lesser-included instruction if “there are
reasonable grounds in the evidence both for acquittal on the greater charge and
conviction on the lesser offense.” State v. Fitzgerald, 2000 WI App 55, ¶7, 233
Wis. 2d 584, 608 N.W.2d 391 (citation omitted). As a result of the party to a
crime liability, even a passenger in a stolen vehicle may be found guilty of WIS.
STAT. § 943.23(3) because the evidence needed to prove Harris committed any

3
The State argued below that WIS. STAT. § 943.23(4m) was not a lesser-included offense
to the charge of § 943.23(3). However, on appeal, the State acknowledges that § 943.23(4m) is
indeed a lesser-included offense to the charge of § 943.23(3) by operation of WIS. STAT.
§ 939.66(2r). Thus, we do not address the matter further, and we accept for our purposes that
§ 943.23(4m) is a lesser-included offense to a charge of § 943.23(3).

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No. 2023AP624

lesser-included offense under § 943.23(4m) would also be sufficient to prove that
Harris committed the greater offense under § 943.23(3) as a party to a crime.

¶15 Consequently, trial counsel could not be considered ineffective for
failing to request a jury instruction for WIS. STAT. § 943.23(4m), and Harris’s
claim of ineffective assistance of counsel fails. See State v. Swinson, 2003 WI
App 45, ¶59, 261 Wis. 2d 633, 660 N.W.2d 12 (“Trial counsel’s failure to bring a
meritless motion does not constitute deficient performance.”); see also State v.
Ziebart, 2003 WI App 258, ¶15, 268 Wis. 2d 468, 673 N.W.2d 369 (stating that to
establish that postconviction or appellate counsel was ineffective for failing to
pursue an argument also requires a showing that trial counsel was ineffective).4

By the Court.—Order affirmed.

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

4
At the end of his opening brief on appeal, Harris invokes this court’s discretionary
authority under WIS. STAT. § 752.35. We decline to address his argument as undeveloped. See
State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

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