State v. Kenneth Lovell McDade

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 18, 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. 2023AP114 Cir. Ct. No. 2010CF3671

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KENNETH LOVELL MCDADE,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
ELLEN R. BROSTROM, Judge. Affirmed.

Before Geenen, Colón and Gill, 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).
No. 2023AP114

¶1 PER CURIAM. Kenneth Lovell McDade appeals an order of the
circuit court denying his WIS. STAT. § 974.06 (2023-24)1 motion for relief. Upon
review, we affirm.

BACKGROUND

¶2 In 2012, a jury convicted McDade of one count of second-degree
sexual assault of a child less than sixteen years of age and one count of child
enticement. According to the criminal complaint and facts adduced at trial,
McDade approached twelve-year old S.S. at a gas station and learned that she had
run away from home. McDade took S.S. to a motel where he and another man,
Kenya Ragland, gave S.S. cocaine and alcohol and repeatedly sexually assaulted
her. McDade initially pled guilty to child enticement, and the sexual assault
charge was dismissed; however, prior to sentencing, McDade moved to withdraw
his guilty plea. The trial court granted the motion and both charges were
reinstated. Ultimately, the matter proceeded to trial where McDade represented
himself. The jury convicted McDade of both charges.

¶3 Following McDade’s conviction, appointed counsel filed a no-merit
report pursuant to WIS. STAT. RULE 809.32. McDade filed a response, counsel
filed a supplemental no-merit report, and McDade filed three additional responses.
McDade raised thirteen issues in his responses, some of which overlapped with
issues raised by appellate counsel. In a thirty-eight page decision, this court
addressed the following issues: (1) McDade’s motion to suppress S.S.’s photo
array identification; (2) the sufficiency of the evidence; (3) the trial court’s

1
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.

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sentencing discretion; (4) McDade’s waiver of counsel; (5) McDade’s competency
to proceed pro se; (6) a claimed violation of McDade’s right to self-representation;
(7) the collection of McDade’s DNA swab; (8) the denial of McDade’s motion for
a continuance; (9) a chain of custody challenge to DNA evidence; (10) an interest
of justice claim based on an alleged failure to physically describe McDade’s
genitalia; (11) a due process challenge to the trial court’s rulings on certain pretrial
matters; (12) prosecutorial misconduct; and (13) a motion to correct trial
transcripts. After an independent review of the record, this court determined that
there were no arguably meritorious issues for appeal and we affirmed McDade’s
conviction. See State v. McDade, No. 2014AP1301-CRNM, unpublished op. and
order (WI App Feb. 14, 2022).

¶4 McDade then filed the WIS. STAT. § 974.06 motion that underlies
this appeal. He argued that his postconviction/appellate counsel “unreasonably
failed to investigate and introduce indisputable facts to be judicially noticed, and
move the court for a new trial. Also, [counsel’s] failure to thoroughly examine the
record and investigate facts outside the record had deliberately ignored several
preserved issues to obtain a new trial[.]” Specifically, McDade argued that
postconviction/appellate counsel was ineffective for: (1) failing to request the trial
court to take judicial notice of the defendant’s “deformed genitalia” as
adjudicative facts and to move the court for a new trial in the interest of justice;
(2) failing to ask the trial court to reconsider the defendant’s pro se motion for a
new trial, filed after his trial but before he was sentenced; (3) failing to identify
and raise a jury instruction error; and (4) failing to identify and raise a Brady2

2
See Brady v. Maryland, 373 U.S. 83 (1963).

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No. 2023AP114

violation claim. McDade admitted that some of these issues “were raised in part”
in his responses to counsel’s no-merit report. However, he argued that ineffective
assistance of postconviction/appellate counsel was a “sufficient reason” to
overcome the procedural bars he faced.

¶5 The postconviction court denied the motion as procedurally barred
under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994),
because McDade failed to raise the issues in his no-merit responses. This appeal
follows.

DISCUSSION

¶6 On appeal McDade reiterates the arguments raised in his
postconviction motion. He also contends that he is not subject to the Escalona-
Naranjo bar because postconviction/appellate counsel was ineffective for failing
to raise the issues of which he complains. He further suggests that he was not
required to raise the newly alleged issues in his no-merit responses because this
court conducted an independent review of the record and should have caught the
issues itself. Because this court did not catch the issues, McDade contends, this
court failed to properly follow the no-merit procedures. McDade is mistaken.

¶7 We agree with the postconviction court that McDade’s claims are
procedurally barred under Escalona-Naranjo. Successive motions and appeals
are procedurally barred unless the defendant can show a sufficient reason why the
newly alleged errors were not previously raised. Id. at 185. We determine the
sufficiency of a defendant’s reason for circumventing Escalona-Naranjo’s
procedural bar by examining the “four corners” of the postconviction motion. See
State v. John Allen, 2004 WI 106, ¶¶23, 27, 274 Wis. 2d 568, 682 N.W.2d 433.
The bar to serial litigation may also be applied to a defendant whose direct appeal

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was processed under the no-merit procedures set forth in WIS. STAT. RULE 809.32,
as long as the no-merit procedures were in fact followed and the record
demonstrates a sufficient degree of confidence in the result. See State v. Tillman,
2005 WI App 71, ¶¶19-20, 281 Wis. 2d 157, 696 N.W.2d 574; see also State v.
Aaron Allen, 2010 WI 89, ¶¶35-41, 328 Wis. 2d 1, 786 N.W.2d 124.

¶8 McDade’s arguments are simply an attempt to absolve himself of
fault for failing to raise his newly alleged issues in any one of his four responses to
appellate counsel’s no-merit report. It is well established that a defendant may
waive issues by failing to raise them in a response to a no-merit report. See
Tillman, 281 Wis. 2d 157, ¶¶17-19. McDade has not offered any cognizable
reasons for failing to raise these issues in any of his no-merit responses. He
simply suggests that counsel and this court should have caught them instead. In
short, McDade has not demonstrated that his no-merit appeal was procedurally
inadequate. This court independently reviewed the record and assessed McDade’s
claims. Our resolution of the no-merit proceeding carries a sufficient degree of
confidence warranting application of the procedural bar.

CONCLUSION

¶9 For the forgoing reasons, we affirm the order denying McDade’s
postconviction motion for relief.

By the Court.—Order affirmed.

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

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