State v. Curtis Von Brown

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.
March 31, 2026
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. 2023AP1926 Cir. Ct. No. 2016CF3247

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CURTIS VON BROWN,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
MARK A. SANDERS, Judge. Affirmed.

Before White, C.J., Colón, P.J., and Geenen, 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. 2023AP1926

¶1 PER CURIAM. Curtis Von Brown, pro se, appeals from an order
of the circuit court that denied his WIS. STAT. § 974.06 (2023-24)1 motion. Brown
contends that he received ineffective assistance from trial and postconviction
counsel and that he is entitled to a new trial in the interests of justice. We reject
Brown’s arguments and affirm.

BACKGROUND

¶2 In September 2017, a jury convicted Brown of first-degree reckless
homicide with a dangerous weapon as a party to a crime and possession of a
firearm by a felon.2 The circuit court imposed consecutive sentences totaling 48
years’ imprisonment. Brown filed a postconviction motion in which he alleged
ineffective assistance of trial counsel. As relevant to this appeal, he alleged that
trial counsel was ineffective (1) when he failed to call Robert Farrow, who was
present at the homicide scene, as a witness at trial and (2) when he failed to object
to the presentation of certain video evidence in split-screen format. The circuit
court denied the motion after an evidentiary hearing. Brown appealed, and we
affirmed. See State v. Brown, No. 2019AP1077-CR, unpublished slip op. (WI
App June 22, 2021).

¶3 Brown then filed the pro se WIS. STAT. § 974.06 motion that
underlies this appeal, seeking a new trial. He alleged that trial counsel had been
ineffective by: (1) failing to call Farrow to testify; (2) failing to object to the use of
the split-screen video; (3) impeaching favorable witnesses; (4) failing to object to

1
All references to the Wisconsin Statutes are to the 2023-24 version.
2
This was Brown’s second trial; the first jury could not reach a unanimous verdict,
resulting in a mistrial.

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No. 2023AP1926

hearsay; (5) highlighting a theory giving Brown motive; and (6) generally
employing a strategy that was “hostile” to Brown’s defense. Brown also alleged
that postconviction counsel was ineffective for failing to either raise or to better
argue those claims against trial counsel.

¶4 The circuit court denied the motion without a hearing. It explained
that any ineffective assistance claims against trial counsel that were a “rehash of
the claims that postconviction counsel actually raised” were barred from
relitigation and the remaining “scattershot, undeveloped, and conclusory”
allegations against postconviction counsel were insufficient to satisfy the
“sufficient reason” and “clearly stronger” pleading standards applicable to WIS.
STAT. § 974.06 motions. Brown appeals.

DISCUSSION

¶5 “A matter once litigated may not be relitigated in a subsequent
postconviction proceeding[.]” State v. Witkowski, 163 Wis. 2d 985, 990, 473
N.W.2d 512 (Ct. App. 1991). In addition, any issue that could have been raised on
direct appeal or in a previous motion is barred absent a sufficient reason for not
raising the issue in the earlier proceedings. WIS. STAT. § 974.06(4); State v.
Escalona-Naranjo, 185 Wis. 2d 168, 181-82, 517 N.W.2d 157 (1994). Whether a
procedural bar applies is a question of law that we independently review. State v.
Tolefree, 209 Wis. 2d 421, 424, 563 N.W.2d 175 (Ct. App. 1997).

¶6 The circuit court correctly noted that two of Brown’s ineffective-
assistance claims against trial counsel—those involving witness Farrow and the
split-screen video—are procedurally barred because both were raised in Brown’s
original postconviction motion. Although he has now attempted to present those
claims in the guise of ineffective assistance of postconviction counsel, the

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No. 2023AP1926

Witkowski bar applies “no matter how artfully the defendant may rephrase the
issue.” See id., 163 Wis. 2d at 990.

¶7 That leaves four claims of ineffective assistance of trial counsel that
are barred unless there is a sufficient reason for not raising them earlier. “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.” State v. Romero-Georgana, 2014 WI 83, ¶36, 360 Wis. 2d 522, 849
N.W.2d 668. However, the defendant must do more than just assert that the
attorney was ineffective for failing to raise certain issues. State v. Balliette, 2011
WI 79, ¶63, 336 Wis. 2d 358, 805 N.W.2d 334. A defendant who alleges that
postconviction counsel was ineffective for failing to raise certain viable claims
must demonstrate that the claims the defendant thinks should have been brought
are clearly stronger than the claims counsel actually raised. Romero-Georgana,
360 Wis. 2d 522, ¶73. “Generally, only when ignored issues are clearly stronger
than those presented, will the presumption of effective assistance of counsel be
overcome.” Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986).

¶8 We agree with the circuit court that Brown has failed to show that
any new claims of ineffective assistance of trial counsel are clearly stronger than
any of the issues raised by postconviction counsel. Indeed, Brown failed to
engage in any meaningful comparative analysis of his current claims relative to the
claims postconviction counsel actually raised; conclusory assertions, such as those
describing an issue as “plainly stronger,” do not demonstrate the strength of the
claim. Accordingly, the remaining ineffective assistance claims are procedurally
barred under Escalona.

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No. 2023AP1926

¶9 Brown also contends we should use our “inherent authority” to grant
a new trial in the interests of justice. “[I]f it appears from the record that the real
controversy has not been fully tried, or that it is probable that justice has for any
reason miscarried, the court may reverse the judgment or order appealed from”
and order a new trial or other remedy. WIS. STAT. § 752.35. However, that statute
“does not permit us to go behind a [WIS. STAT. §] 974.06 order to reach the
judgment of conviction.” State v. Allen, 159 Wis. 2d 53, 56, 464 N.W.2d 426 (Ct.
App. 1990). Moreover, “[w]e exercise our authority to reverse in the interest of
justice … sparingly and only in the most exceptional cases.” State v. Schutte,
2006 WI App 135, ¶62, 295 Wis. 2d 256, 720 N.W.2d 469. We are not persuaded
that this is such a case.

By the Court.—Order affirmed.

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

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