State v. Lawrence Northern

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.
November 5, 2024
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. 2022AP1344 Cir. Ct. No. 2001CF580

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

LAWRENCE NORTHERN,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Eau Claire County:
MICHAEL A. SCHUMACHER, Judge. Affirmed.

Before Hruz, Gill, and Gundrum, 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).

¶1 PER CURIAM. Lawrence Northern appeals from an order that
denied his most recent postconviction motion without an evidentiary hearing. We
No. 2022AP1344

affirm on the basis that the claims raised in Northern’s motion are procedurally
barred.

BACKGROUND

¶2 In 2002, Northern was convicted upon a jury’s verdict of two counts
of possession of cocaine with intent to deliver. Northern appealed his conviction,
attempting to raise several issues related to the discovery process in his case. We
concluded that Northern had failed to preserve his discovery issues and affirmed the
conviction in State v. Northern (Northern I), No. 2003AP246-CR, unpublished slip
op. (WI App Nov. 4, 2003). The Wisconsin Supreme Court denied Northern’s
petition for review.

¶3 In 2005, Northern filed a pro se motion seeking a new trial under WIS.
STAT. § 974.06 (2021-22).1 In that motion, Northern alleged claims of: a defective
jury instruction, a double jeopardy violation, insufficient evidence to support the
verdict, the improper admission of certain evidence at trial, and ineffective
assistance of trial, postconviction, and appellate counsel. The circuit court denied
the motion, and this court affirmed that decision in State v. Northern (Northern II),
No. 2005AP1215, unpublished slip op. (WI App May 16, 2006). The Wisconsin
Supreme Court denied Northern’s petition for review.

¶4 In 2006, Northern filed a pro se Knight petition with this court seeking
a writ of habeas corpus to reinstate his direct appeal rights based upon claims of
ineffective assistance of appellate counsel. See State v. Knight, 168 Wis. 2d 509,
484 N.W.2d 540 (1992). Among those claims were allegations appellate counsel

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

2
No. 2022AP1344

was deficient for failing to argue that trial counsel should have challenged the
State’s amendment of its complaint, the admissibility of other-acts evidence (which
was not ultimately presented), and the admission of a demonstrative aid. Following
a remand from the Wisconsin Supreme Court, this court denied the petition in
Northern v. Lundquist (Northern III), No. 2006AP2051-W, unpublished op. and
order (WI App Mar. 14, 2007).

¶5 Later in 2006, Northern filed a second pro se motion seeking a new
trial under WIS. STAT. § 974.06—this time based upon an alleged improper
amendment of the Information and ineffective assistance of both trial and
postconviction counsel. The circuit court denied the motion, and this court affirmed
that decision in State v. Northern (Northern IV), No. 2007AP168, unpublished slip
op. (WI App Nov. 29, 2007).

¶6 In 2008, Northern filed a petition for habeas corpus in federal district
court. The district court denied that petition, the Seventh Circuit Court of Appeals
affirmed, and the United States Supreme Court denied certiorari.

¶7 In 2009, Northern filed a pro se motion seeking resentencing or
sentence modification. The circuit court denied the motion, and this court affirmed
that decision in State v. Northern (Northern V), No. 2009AP3038, unpublished slip
op. (WI App Nov. 16, 2010). The Wisconsin Supreme Court denied Northern’s
petition for review.

¶8 In 2015, Northern filed a petition for a supervisory writ with the
Wisconsin Supreme Court, seeking to compel this court to provide him with relief.
That petition was denied ex parte.

3
No. 2022AP1344

¶9 In 2016, Northern filed a second Knight petition with this court, again
alleging ineffective assistance of appellate counsel. The primary focus of this
petition was that the law firm Northern had hired for his appeal had subrogated the
drafting of his brief to another attorney without Northern’s consent. This court
denied the Knight petition in Northern v. Tegels (Northern VI),
No. 2016AP492-W, unpublished op. and order (WI App June 9, 2016). The
Wisconsin Supreme Court denied Northern’s petition for review.

¶10 In 2017, Northern filed a second pro se motion for sentence
modification, which the circuit court denied. Northern did not appeal that decision.

¶11 In 2020, Northern filed a third Knight petition with this court, alleging
that his right to counsel of his choice was violated in his first appeal and that
appellate counsel was ineffective by failing to challenge the search of a cell phone
and a stipulation allowing the admission of laboratory reports identifying the
substance seized as cocaine without supporting expert testimony. This court denied
the petition in Northern v. Tegels (Northern VII), No. 2020AP1811-W,
unpublished op. and order (WI App. Nov. 24, 2020).

¶12 In 2022, Northern filed his third pro se motion under WIS. STAT.
§ 974.06, which is the subject of this appeal. In his current postconviction motion,
Northern contends that his trial counsel was ineffective by failing to challenge the
search of a cell phone and a stipulation allowing the admission of laboratory reports
identifying the substance seized as cocaine without supporting expert testimony.
The circuit court denied the motion without a hearing, and Northern appeals.

4
No. 2022AP1344

DISCUSSION

¶13 The primary issue in this appeal is whether Northern was entitled to a
hearing on his most recent postconviction motion. 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. No hearing is required, though, when the defendant presents only
conclusory allegations or when the record conclusively demonstrates that he or she
is not entitled to relief. Nelson v. State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629
(1972). 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. Whether a defendant is procedurally barred from filing a postconviction
motion is a question of law subject to de novo review. Id., ¶30.

¶14 The State contends that the two issues raised in Northern’s most recent
postconviction motion are procedurally barred under either State v. Witkowski,
163 Wis. 2d 985, 473 N.W.2d 512 (Ct. App. 1991), or State v. Escalona-Naranjo,
185 Wis. 2d 168, 517 N.W.2d 157 (1994). Witkowski holds that a matter already
litigated cannot be relitigated in subsequent postconviction proceedings.
Witkowski, 163 Wis. 2d at 990. Escalona-Naranjo holds that an issue that could
have been raised in a direct appeal or in a postconviction motion under WIS. STAT.
§ 974.02, cannot be the basis for a subsequent postconviction motion under WIS.
STAT. § 974.06, unless there was a sufficient reason for failing to raise the issue
earlier. Escalona-Naranjo, 185 Wis. 2d at 185.

¶15 We agree with the State that both of Northern’s current claims, if not
actually litigated in their current framework of ineffective assistance of trial
counsel, could have been previously litigated by at least his second WIS. STAT.

5
No. 2022AP1344

§ 974.06 motion—by which time Northern acknowledges he had a full set of
transcripts. Northern’s assertion that his postconviction and appellate counsel on
direct appeal provided ineffective assistance by failing to preserve and raise the
issues does not excuse Northern’s own failure to raise the issues in his successive
pro se motions. If, as Northern contends, postconviction and appellate counsel had
sufficient information to be able to raise those claims based upon the record and
discovery materials, then Northern did too.2 We conclude that Northern’s claims
are barred under Escalona-Naranjo.

¶16 As a secondary issue, Northern asks this court to exercise our
discretionary reversal power to grant him a new trial in the interest of justice, which
we may do “if it appears from the record that the real controversy has not been fully
tried.” See WIS. STAT. § 752.35. In order to establish that the real controversy has
not been fully tried, a party must show “that the jury was precluded from considering
‘important testimony that bore on an important issue’ or that certain evidence which
was improperly received ‘clouded a crucial issue’ in the case.” State v. Darcy N.K.,
218 Wis. 2d 640, 667, 581 N.W.2d 567 (Ct. App. 1998) (citation omitted).

¶17 Northern asserts that a stipulation to the effect that the substance he
was accused of possessing had tested positive as cocaine relieved the State of its
burden to prove, beyond a reasonable doubt, that the substance was in fact cocaine.
This argument rests upon a mischaracterization of the stipulation, however. The
stipulation was that “the Crime Lab reports regarding testing of suspected cocaine
and marijuana in this case can be admitted into evidence without the testimony of

2
Northern asserts that a case supporting his cell phone claim, Riley v. California, 573 U.S.
373 (2014), was not decided until after he had already filed his first two WIS. STAT. § 974.06
motions. That is irrelevant, however, given that Riley has only prospective application. See Young
v. Pfeiffer, 933 F.3d 1123, 1125 & n.1 (9th Cir. 2019).

6
No. 2022AP1344

the Crime Lab analysts.” Thus, the laboratory reports were, in fact, admitted into
evidence to help meet the State’s burden. Moreover, Northern does not present any
proposed testimony from any crime laboratory analyst that would have undermined
the conclusions reached in the laboratory reports. Therefore, we conclude the jury
was not precluded from hearing any important testimony, and we decline to exercise
our discretionary reversal power.

By the Court.—Order affirmed.

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

7