COURT OF APPEALS 

DECISION 

DATED AND FILED

August 6, 2019 

Sheila T. Reiff 

Clerk of Court of Appeals 

 

NOTICE 

 This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal Nos. 2016AP2505 

2017AP1619 

Cir. Ct. No. 2011CF423

STATE OF WISCONSIN IN COURT OF APPEALS 

DISTRICT III 

STATE OF WISCONSIN, 

 PLAINTIFF-RESPONDENT, 

 V. 

SEAN T. PUGH, 

 DEFENDANT-APPELLANT. 

 APPEALS from orders of the circuit court for Brown County: 

KENDALL M. KELLEY, Judge. Affirmed. 

 Before Stark, P.J., Hruz and Seidl, 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). 
Nos. 2016AP2505 

2017AP1619 

2 

¶1 PER CURIAM. Sean Pugh, pro se, appeals two orders denying 

successive motions and relief he sought through letters he filed in the circuit court 

seeking the appointment of counsel, postconviction discovery, and postconviction 

relief from a 2013 judgment of conviction for multiple drug offenses. Pugh has 

previously filed a direct appeal and a petition for a writ of habeas corpus arising 

from the same case, both with the assistance of counsel. We conclude that Pugh’s 

current claims for relief from the judgment of conviction are procedurally barred 

by the prior proceedings and that the court properly denied Pugh’s request for the 

appointment of counsel given the procedural posture of the case. 

BACKGROUND 

¶2 We will not repeat here the facts of the underlying case, which we 

set forth in an opinion rejecting on direct appeal challenges Pugh raised to the 

admission of other acts evidence and the amendment of the Information. See State 

v. Pugh, No. 2013AP1522-CR, unpublished slip op. ¶¶2-7 (WI App Oct. 21, 

2014). Only the subsequent procedural history is relevant to these appeals. 

¶3 After the denial of his direct appeal, Pugh retained private counsel 

with the help of his family and filed both a motion in the circuit court seeking 

postconviction relief under WIS. STAT. § 974.06 (2017-18)1 and a petition in this 

court seeking a writ of habeas corpus. In the § 974.06 motion, Pugh claimed: 

(1) the State had failed to disclose impeachment material favorable to Pugh’s 

defense—namely, that two of the State’s witnesses had received consideration for 

their testimony; and (2) his trial counsel provided ineffective assistance by failing 

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted. 
Nos. 2016AP2505 

2017AP1619 

3 

to impeach one witness with prior inconsistent statements and disclosure of her 

probation status, failing to interview and impeach another witness, and failing to 

object to that witness’s other acts testimony. Pugh further alleged that his 

postconviction counsel provided ineffective assistance by failing to raise those 

issues, and that the ineffectiveness of both his trial and postconviction/appellate 

counsel provided a sufficient reason for why Pugh had not previously raised the 

issues.2 In the writ petition, Pugh raised identical claims that he had been denied 

the effective assistance of postconviction/appellate counsel by his counsel’s failure 

to challenge the State’s failure to disclose impeachment material favorable to the 

defense and his trial counsel’s failure to investigate and elicit impeachment 

evidence, and to object to witness testimony. Pugh v. Richardson, 

No. 2016AP943-W, unpublished op. and order at 3 (WI App Sept. 22, 2016). 

¶4 This court denied Pugh’s writ petition on the dual grounds that the

additional issues Pugh claimed appellate counsel should have raised on appeal 

were not “clearly stronger” than the issues he did raise, and that none of the 

additional issues could have reasonably affected the outcome of the trial, given the 

overwhelming evidence of Pugh’s guilt. Id. at 4. The circuit court then denied 

Pugh’s WIS. STAT. § 974.06 motion “as moot.” Pugh’s counsel was permitted to 

withdraw following the denial of the writ petition and the § 974.06 motion. 

¶5 Pugh subsequently filed a series of pro se letters and motions

seeking, among other things: (1) the reappointment of counsel; and 

(2) reconsideration or relief from the order denying his WIS. STAT. § 974.06 

 

2

 In addition, Pugh requested postconviction discovery regarding considerations 

provided by the State to its witnesses. 
Nos. 2016AP2505 

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4 

motion. Following a hearing, the circuit court issued a written order denying the 

motions for the appointment of counsel and relief from the § 974.06 order. Pugh 

now appeals both the § 974.06 order and the order denying relief from that order 

and the appointment of counsel.3 

DISCUSSION 

¶6 Pugh first contends the circuit court erred in refusing to “exercise 

discretion” by addressing the merits of the claims he raised in his WIS. STAT.

§ 974.06 motion, either in the first instance or upon reconsideration. In the 

alternative, Pugh asks this court to exercise its own discretionary reversal power 

under WIS. STAT. § 752.35 to grant a new trial on the grounds that the real 

controversy has never been tried. Finally, Pugh contends the circuit court erred in 

refusing to appoint counsel on his behalf after his privately retained counsel was 

permitted to withdraw following the writ proceeding. 

¶7 No claim that could have been raised in a previously filed 

postconviction motion or direct appeal can be the basis for a subsequent WIS.

STAT. § 974.06 motion unless the court finds there was sufficient reason for failing 

to raise the claim in the earlier proceeding. Sec. 974.06(4); State v. EscalonaNaranjo, 185 Wis. 2d 168 185, 517 N.W.2d 157 (1994). Whether a defendant is 

procedurally barred from filing a successive postconviction motion 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. 

 

3

 These appeals were consolidated on our own motion on July 17, 2019. 
Nos. 2016AP2505 

2017AP1619 

5 

¶8 Here, Pugh asserted ineffective assistance of counsel as the reason 

for why he did not raise the issues identified in his WIS. STAT. § 974.06 motion on 

his direct appeal. However, this court explicitly rejected Pugh’s ineffective 

assistance of counsel claims in his writ petition when we determined that Pugh 

could not demonstrate prejudice from the alleged errors due to the overwhelming 

evidence of guilt presented at trial.4 The circuit court was bound by this court’s 

decision. It follows that Pugh could not establish a sufficient reason for why he 

did not raise the issues earlier. Therefore, the issues Pugh raised in his § 974.06 

motion were barred under Escalona. Although the circuit court may have 

employed the wrong language when describing the issues in the § 974.06 motion 

as “moot,” the court nonetheless acted properly in denying the motion without 

addressing the merits of the issues because the issues were, in fact, procedurally 

barred. 

¶9 The circuit court also properly denied Pugh’s subsequent motion for

reconsideration or relief from the order denying his WIS. STAT. § 974.06 motion.5 

Contrary to Pugh’s assertions, the circuit court’s refusal to address the merits of 

the issues in the § 974.06 motion was not a question of comity or of either the 

circuit court’s or this court’s jurisdiction. Rather, as we have explained, those 

 

4

 Pugh also asserts that this court erred in denying his writ petition without remanding 

for factual finding. However, the proper mechanism for challenging this court’s decision on the 

writ petition would have been by an appeal of that decision to the Wisconsin Supreme Court, not 

by a subsequent motion to the circuit court, which has no supervisory authority over this court. In 

any event, we stand by our prior order. 

5

 Pugh cites WIS. STAT. § 806.07 in support of his request for relief from the order 

denying his WIS. STAT. § 974.06 motion. The State points out that § 806.07 applies only to civil 

judgments, not criminal ones. State ex rel. Lewandowski v. Callaway, 118 Wis. 2d 165, 172, 346 

N.W.2d 457 (1984). Given Pugh’s pro se status, we will disregard the label on his motion for 

relief, and treat it as one for reconsideration. 
Nos. 2016AP2505 

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6 

issues were procedurally barred by Pugh’s failure to include them with the other 

issues raised in his direct appeal. In addition, Pugh’s attempt in his postconviction 

motion to recast the issues as claims based upon newly discovered evidence fails 

because—absent any showing that the information would have affected the trial—

the information did not satisfy the materiality criteria for newly discovered 

evidence. See State v. McCallum, 208 Wis. 2d 463, 473-74, 561 N.W.2d 707 

(1997). 

¶10 In the alternative, Pugh asks us to exercise our discretionary reversal 

power under WIS. STAT. § 752.35 and grant him a new trial on the grounds that the 

real controversy has never been tried. Section 752.35 allows this court to reverse a 

judgment entered by the circuit court “if 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.” 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) (internal citation omitted). 

To establish a miscarriage of justice, there must be “a substantial degree of 

probability that a new trial would produce a different result.” Id. In either case, 

however, we will exercise our discretionary reversal power only sparingly. 

Vollmer v. Luety, 156 Wis. 2d 1, 11, 456 N.W.2d 797 (1990). 

¶11 Here, again, we have already determined the alleged discovery 

violations and claims of error by trial counsel that Pugh now seeks to raise would 

not have affected the outcome of the trial. We are satisfied that the real 
Nos. 2016AP2505 

2017AP1619 

7 

controversy was tried and that no miscarriage of justice occurred. Therefore, we 

decline to exercise our discretionary reversal power. 

¶12 As to the appointment of counsel, the circuit court properly 

exercised its discretion by taking into account both the lack of merit in continuing 

to litigate the matter following the writ proceeding, and Pugh’s access to family 

members who had been willing to pay for an attorney to represent him on the WIS.

STAT. § 974.06 motion. As Pugh acknowledges, he did not have any 

constitutional right to counsel following the completion of his direct appeal. See 

State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 648, 579 N.W.2d 698 (1998) 

(citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)). 

By the Court.—Orders affirmed. 

 This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.