809.30 Annotation
If a defendant elects to waive counsel and proceed pro se, the court must find that the defendant has been provided with clear warnings with respect to forfeiture of the right to counsel and the dangers of self-representation. State v. Cummings,
199 Wis. 2d 721,
546 N.W.2d 406 (1996). [Re Order No. 00-02 effective July 1, 2001]
809.30 Note
Judicial Council Note, 2002: The terminology throughout s. 809.30 is amended to clarify that persons seeking to appeal final judgments or orders in criminal, ch. 48 (child or unborn child in need of protection or services, guardianship or adoption), ch. 51 (civil commitment), ch. 55 (protective placement), and ch. 938 (delinquency or juvenile justice) cases must comply with this rule. Prior language referred to all such persons as defendants and to all appeal proceedings as "postconviction," and was confusing to parties and practitioners.
809.30 Annotation
Amended sub. (2) (h) provides a cross-reference to the statutory section governing the requirements of a notice of appeal. The requirement of a motion for postconviction or postdisposition relief on grounds other than sufficiency of the evidence or issues previously raised is consistent with s. 974.02 (2).
809.30 Annotation
Prior to 2001 WI 39, effective 7/1/01, this rule did not specify who could request an extension of time for a circuit court to decide a postconviction motion. Sub. (2) (i) is amended to permit the circuit court, the state, the defendant, or any other party to request an extension of time for the circuit court to decide a postconviction or postdisposition motion.
809.30 Annotation
Subsection (2) (j) is amended for clarification and consistency, and to cross-reference s. 809.10, which contains the requirements governing a notice of appeal. In a criminal case, the prosecutor who represented the state in the circuit court should be served with a copy of the notice of appeal.
809.30 Annotation
The amendment to sub. (4) (a) clarifies that the rule requiring service on the state public defender appellate division is applicable only to postconviction, postdisposition, and appellate appointments. Rule 809.30 (4), 2001 WI 39, effective 7/1/01, is designed to assure that courts acting on motions to withdraw have knowledge of the state public defender's position with respect to appointing successor counsel. Subsection (4) (a) is amended to reflect that withdrawal motions filed by state public defender staff attorneys already contain that information and that the issue of appointment of successor counsel is irrelevant to the court's determination when a no-merit report is filed. [Re Order No. 02-01 effective January 1, 2003]
809.30 Note
Judicial Council Committee Comment, July 2008: The amendment to s. 809.30 (2) (b) allows a notice of intent that is filed too early to be deemed filed on the date that a judgment and sentence or other final adjudication is filed. This is consistent with the procedure applicable to civil appeals under s. 808.04 (8). [Re Order No. 08-04 effective January 1, 2009]
809.30 Annotation
The court of appeals did not abuse its discretion in refusing to allow a convicted felon to pursue a late appeal. State v. Argiz,
101 Wis. 2d 546,
305 N.W.2d 124 (1981).
809.30 Annotation
The limitation period under sub. (1) (f) [now sub. (2) (h)] cannot begin to run until the entry of an appealable order. In Interest of M. T.
108 Wis. 2d 410,
321 N.W.2d 289 (1982).
809.30 Annotation
For issues on appeal to be considered matters of right, postconviction motions must be made except in challenges to sufficiency of the evidence under s. 974.02 (2). State v. Monje,
109 Wis. 2d 138,
325 N.W.2d 695 (1982).
809.30 Annotation
Because double jeopardy precludes retrial if an appellate court finds a conviction is not supported by sufficient evidence, the court must decide a claim of insufficiency even if there are other grounds for reversal that would not preclude retrial. State v. Ivy,
119 Wis. 2d 591,
350 N.W.2d 622 (1984).
809.30 Annotation
A defendant unable to assist counsel or make decisions committed by law to the defendant with a degree of rational reasoning is incompetent to pursue postconviction relief. The process to be followed when a competency issue arises is discussed. State v. Debra A. E.
188 Wis. 2d 111,
523 N.W.2d 727 (Ct. App. 1994).
809.30 Annotation
If a defendant is represented by counsel, the defendant is statutorily barred from proceeding pro se during the pendency of an appeal. State v. Redmond,
203 Wis. 2d 13,
552 N.W.2d 115 (Ct. App. 1996),
94-1544.
809.30 Annotation
A criminal defendant may bring a motion under sub. (2) (h) for a new trial based on newly-discovered evidence. The defendant has the burden of establishing the 5 criteria enumerated by the court by clear and convincing evidence. State v. Brunton,
203 Wis. 2d 195,
552 N.W.2d 452 (Ct. App. 1996),
95-0111.
809.30 Annotation
When a criminal appeal is taken from a plea bargain it brings the entire judgment before the appellate court. When a plea bargain is negated, the proper disposition is to remand the cause for further proceedings on the original charges. State v. Briggs,
218 Wis. 2d 61,
579 N.W.2d 783 (Ct. App. 1998),
97-1558.
809.30 Annotation
A defendant subject to a post-probation revocation sentence cannot use this section and s. 973.19 (1) (b) to raise issues that go the original judgment, but the defendant may take a direct appeal from a subsequent judgment in order to fully litigate issues initially raised by the resentencing. State v. Scaccio, 2000 WI App 265,
240 Wis. 2d 95,
622 N.W.2d 449,
99-3101.
809.30 Annotation
Section 973.195 creates a separate and specific statutory procedure for requesting a sentence reduction that should be used in place of this section whenever the basis for the modification is a change in law or procedure related to sentencing effective after the inmate was sentenced that would have resulted in a shorter term of a confinement. State v. Torres, 2003 WI App 199,
267 Wis. 2d 213,
670 N.W.2d 400,
03-0233.
809.30 Annotation
Neither sub. (4) or other law requires that a motion to withdraw be filed any time an attorney appointed by the public defender terminates his or her postconviction/appellate representation of a defendant. Counsel for the defendant did not render ineffective assistance by closing his file without first obtaining court permission to withdraw or otherwise seeking a contemporaneous judicial determination that his client had knowingly waived either the right to appeal or the right to counsel. Ford v. Holm, 2004 WI App 22,
269 Wis. 2d 810,
676 N.W.2d 500,
02-1828.
809.30 Annotation
When a defendant seeks modification of the sentence imposed at resentencing, sub. (2) and s. 973.19 require the defendant to file a postconviction motion with the circuit court before taking an appeal. These rules on sentence modification apply even though the sentence imposed at resentencing is identical to a previous sentence and regardless of whether a defendant challenges the original sentence, a sentence after revocation, or the sentence imposed at resentencing. State v. Walker, 2006 WI 82,
292 Wis. 2d 326,
716 N.W.2d 498,
04-2820.
809.30 Annotation
If a defendant does not want a no-merit report, the defendant has 3 choices: 1) fire counsel and proceed pro se; 2) fire counsel and hire private counsel if financially feasible; or 3) direct that the file be closed. But a defendant cannot: 1) insist that appointed counsel pursue an advocacy appeal under s. 809.30 despite counsel's view that an appeal would lack arguable merit; 2) alternatively insist on different appointed counsel who will write a brief the way the defendant wants it written; or 3) forbid appointed counsel from filing a no-merit report and then claim that counsel has abandoned him or her when counsel moves to withdraw from representation. Van Hout v. Endicott, 2006 WI App 196,
296 Wis. 2d 580,
724 N.W. 2d 692,
04-1192.
809.30 Annotation
The decision to appeal. Kempinen, WBB August, 1985.
809.30 Annotation
Sentence modification by Wisconsin trial courts. Kassel. 1985 WLR 195.
809.30 Annotation
The decision to appeal a criminal conviction: Bridging the gap between the obligations of trial and appellate counsel. 1986 WLR 399.
809.31
809.31
Rule (Release on bond pending seeking postconviction relief). 809.31(1)(1) A defendant convicted of a misdemeanor or felony who is seeking relief from a conviction and sentence of imprisonment or to the intensive sanctions program and who seeks release on bond pending a determination of a motion or appeal shall file in the trial court a motion seeking release.
809.31(2)
(2) The trial court shall promptly hold a hearing on the motion of the defendant, determine the motion by order and state the grounds for the order.
809.31(3)
(3) Release may be granted if the court finds that:
809.31(3)(a)
(a) There is no substantial risk the appellant will not appear to answer the judgment following the conclusion of postconviction proceedings;
809.31(3)(b)
(b) The defendant is not likely to commit a serious crime, intimidate witnesses, or otherwise interfere with the administration of justice;
809.31(3)(c)
(c) The defendant will promptly prosecute postconviction proceedings; and
809.31(3)(d)
(d) The postconviction proceedings are not taken for purposes of delay.
809.31(4)
(4) In making the determination on the motion, the court shall take into consideration the nature of the crime, the length of sentence and other factors relevant to pretrial release.
809.31(5)
(5) The defendant or the state may seek review of the order of the circuit court by filing a motion in the court of appeals under
s. 809.14. The party seeking review must attach to its motion a copy of the judgment of conviction or other final judgment or order, the circuit court order regarding release pending appeal, the circuit court statement of reasons for the decision regarding release pending appeal, and the transcript of any release proceedings in the circuit court or a statement explaining why no transcript is available. The party filing the motion shall request a transcript of the reporter's notes for any proceeding in the circuit court regarding release pending appeal for all parties to the appeal and make arrangements to pay for the transcript within 7 days after the entry of the circuit court order regarding release pending appeal. Within 7 days after the date on which the transcript was requested and arrangements were made for payment, the reporter shall serve copies of the transcript on the parties to the appeal, file the transcript with the circuit court, and notify the clerk of the court of appeals and the parties to the appeal that the transcript has been filed and served. The motion shall be filed within 21 days after the entry of the circuit court order. The opposing party may file a response within 14 days after the filing of the motion.
809.31(6)
(6) The court ordering release shall require the defendant to post a bond in accordance with
s. 969.09 and may impose other terms and conditions. The defendant shall file the bond in the trial court.
809.31 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978);
1981 c. 390 s.
252;
1991 a. 39;
1997 a. 232; Sup. Ct. Order No.
00-02, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No.
02-01, 2002 WI 120, 255 Wis. 2d xiii.
809.31 Note
Judicial Council Committee's Note, 1978: Section 969.09 provides for release on bond pending appeal and the conditions of the bond. Section 969.01 (2) provides for bond in felony cases after conviction in the discretion of the trial court or by the Supreme Court or a justice thereof or the Court of Appeals or a judge thereof. Neither the statutes nor case law, however, establishes the standards for release or indicates whether the Supreme Court or Court of Appeals is reviewing the action of the trial court or acting de novo. This Rule is intended to meet these deficiencies. The standards for release are those included in the American Bar Association Criminal Justice Standards, Criminal Appeals, s. 2.5. [Re Order effective July 1, 1978]
809.31 Note
Judicial Council Note, 2001: Former rules required a party seeking review of a release decision to file a petition for discretionary review, and pay a separate filing fee, generating a separate appeal. The new motion procedure under sub (5) provides a more efficient mechanism for appellants seeking release pending appeal. No change in the substantive standards governing release decisions is intended. See State v. Whitty,
86 Wis. 2d 380,
272 N.W.2d 843 (1978); State v. Salmon,
163 Wis. 2d 369,
471 N.W.2d 286 (Ct. App. 1991). [Re Order No. 00-02 effective July 1, 2001]
809.31 Note
Judicial Council Note, 2002: Subsection (5) is amended to establish time limits within which a party must request a transcript of the reporter's notes of any circuit court proceeding concerning release pending postconviction relief or appeal, and within which the reporter must file and serve the transcript, and to require the party seeking relief from the circuit court order to request, and make arrangements to pay for, a copy of the transcript for all parties. The amendment also enlarges the time within which a party must file a motion in the court of appeals to allow time to review the transcript before deciding to file a motion. [Re Order No. 02-01 effective January 1, 2003]
809.31 Annotation
Appellate procedure for a petition for bail pending appeal is discussed. State v. Whitty,
86 Wis. 2d 380,
272 N.W.2d 842 (1978).
809.31 Annotation
The power of a circuit court to stay execution of a sentence for legal cause does not include the power to stay sentence while a collateral attack is being made on a conviction by habeas corpus proceeding in federal court. This rule has no application to that situation. State v. Shumate,
107 Wis. 2d 460,
319 N.W.2d 834 (1982).
809.31 Annotation
The merits of the underlying appeal may be considered by the trial court in considering release pending appeal and by the appellate court in determining whether immediate review of the order denying release pending appeal is necessary. State v. Salmon,
163 Wis. 2d 369,
471 N.W.2d 286 (Ct. App. 1991).
809.32
809.32
Rule (No merit reports). 809.32(1)
(1)
No-merit report, response, and supplemental no-merit report. 809.32(1)(a)(a)
No-merit report. If an attorney appointed under
s. 809.30 (2) (e) or
ch. 977 concludes that a direct appeal on behalf of the person would be frivolous and without any arguable merit within the meaning of Anders v. California,
386 U.S. 738 (1967), and the person requests that a no-merit report be filed or declines to consent to have the attorney close the file without further representation by the attorney, the attorney shall file with the court of appeals 3 copies of a no-merit report. The no-merit report shall identify anything in the record that might arguably support the appeal and discuss the reasons why each identified issue lacks merit.
809.32(1)(b)1.1. Prior to the filing of a no-merit report, the attorney shall discuss with the person all potential issues identified by the attorney and the person, and the merit of an appeal on these issues. The attorney shall inform the person that he or she has 3 options:
809.32(1)(b)1.c.
c. To have the attorney close the file and to proceed without an attorney or with another attorney retained at the person's expense.
809.32(1)(b)2.
2. The attorney shall inform the person that a no-merit report will be filed if the person either requests a no-merit report or does not consent to have the attorney close the file without further representation by the attorney. The attorney shall inform the person that if a no-merit report is filed the attorney will serve a copy of the transcripts and the circuit court case record upon the person at the person's request. The attorney shall inform the person that, if the person chooses to proceed with an appeal or chooses to have the attorney close the file without an appeal, the attorney will forward the attorney's copies of the transcripts and circuit court case record to the person at the person's request. The attorney shall also inform the person that the person may file a response to the no-merit report and that the attorney may file a supplemental no-merit report and affidavit or affidavits containing facts outside the record, possibly including confidential information, to rebut allegations made in the person's response to the no-merit report.
809.32(1)(c)
(c) Certification by attorney. The attorney shall append to the no-merit report a signed certification that the attorney has complied with the client-counseling and client-notification requirements of
par. (b). The certification shall be in the following form:
CERTIFICATION BY ATTORNEY
I hereby certify that I have discussed with my client all potential issues identified by me and by my client and the merit of an appeal on these issues, and I have informed my client that he/she must choose one of the following 3 options: 1) to have me file a no-merit report; 2) to have me close the file without an appeal; or 3) to have me close the file and to proceed without an attorney or with another attorney retained at my client's expense. I have informed my client that a no-merit report will be filed if he/she either requests a no-merit report or does not consent to have me close the file without further representation. I have informed my client that the transcripts and circuit court case record will be forwarded at his/her request. I have also informed my client that he/she may file a response to the no-merit report and that I may file a supplemental no-merit report and affidavit or affidavits containing matters outside the record, possibly including confidential information, to rebut allegations made in my client's response to the no-merit report.
Signed:....
Signature
809.32(1)(d)
(d) Service of copy of no-merit report, transcript, and circuit court case record. The attorney shall serve a copy of the no-merit report on the person and shall file a statement in the court of appeals that service has been made upon the person. The attorney shall also serve upon the person a copy of the transcript and circuit court case record within 5 days after receipt of a request for the transcript and circuit court case record from the person and shall file a statement in the court of appeals that service has been made on the person.
809.32(1)(e)
(e) Response to no-merit report. The person may file a response to the no-merit report within 30 days after service of the no-merit report. If the person files a response, the clerk shall, within 5 days after the filing of the response, send a copy of the response to the attorney who filed the no-merit report.
809.32(1)(f)
(f) Supplemental no-merit report. If the attorney is aware of facts outside the record that rebut allegations made in the person's response, the attorney may file, within 30 days after receipt of the person's response, a supplemental no-merit report and an affidavit or affidavits, including matters outside the record. The supplemental report and affidavit or affidavits shall be served on the person, and the attorney shall file a statement in the court of appeals that service has been made upon the person.
809.32(1)(g)
(g) Remand for fact-finding prior to decision. If the person and the attorney allege disputed facts regarding matters outside the record, and if the court determines that the person's version of the facts, if true, would make resolution of the appeal under
sub. (3) inappropriate, the court shall remand the case to the circuit court for an evidentiary hearing and fact-finding on those disputed facts before proceeding to a decision under
sub. (3).
809.32(2)
(2) Notice of appeal, statement on transcript, service of copies. The attorney also shall file in circuit court a notice of appeal of the judgment of conviction or final adjudication and of any order denying a postconviction or postdisposition motion. The notice of appeal shall be identified as a no-merit notice of appeal and shall state the date on which the no-merit report is due and whether the due date is calculated under
par. (a) or
(b). The clerk of circuit court shall transmit the record in the case to the court pursuant to
s. 809.15. The attorney also shall file a statement on transcript complying with the requirements of
s. 809.11 (4), except that copies of the transcript need not be provided to other parties. All papers filed with the court under this subsection, except the transcript, shall be served on the state in accordance with
s. 809.80 (2) (b) and on any other party. The no-merit report, notice of appeal, and statement on transcript must be filed within whichever of the following is later:
809.32(2)(a)
(a) One hundred eighty days after the service upon the person of the transcript and circuit court case record requested under
s. 809.30 (2) (e).
809.32(2)(b)
(b) Sixty days after the entry of the order determining a postconviction or postdisposition motion.
809.32(3)
(3) Decision on no-merit report. In the event that the court of appeals determines that further appellate proceedings would be frivolous and without any arguable merit, the court of appeals shall affirm the judgment of conviction or final adjudication and the denial of any postconviction or postdisposition motion and relieve the attorney of further responsibility in the case. The attorney shall advise the person of the right to file a petition for review to the supreme court under
s. 809.62.
809.32(4)
(4) No-merit petition for review. If a fully briefed appeal is taken to the court of appeals and the attorney is of the opinion that a petition for review in the supreme court under
s. 809.62 would be frivolous and without any arguable merit, the attorney shall advise the person of the reasons for this opinion and that the person has the right to file a petition for review. If requested by the person, the attorney shall file a petition satisfying the requirements of
s. 809.62 (2) (d) and
(f) and the person shall file a supplemental petition satisfying the requirements of
s. 809.62 (2) (a),
(b),
(c), and
(e). The petition and supplemental petition shall both be filed within 30 days after the date of the decision or order of the court of appeals. An opposing party may file a response to the petition and supplemental petition as provided in
s. 809.62 (3) within 14 days after the service of the supplemental petition.
Effective date note
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981);
1981 c. 390 s.
252;
1983 a. 192; Sup. Ct. Order, 123 Wis. 2d xix (1985);
1987 a. 403 s.
256; Sup. Ct. Order No.
00-02, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No.
02-01, 2002 WI 120, 255 Wis. 2d xiii; Sup. Ct. Order No.
04-08, 2008 WI 108, filed 7-30-08, eff. 1-1-09.
809.32 Annotation
Judicial Council Committee's Note, 1981: Subs. (3) and (4) are amended to refer properly to the petition for supreme court review of decisions of the court of appeals.
809.32 Annotation
Sub. (4) is amended to reflect the amendments to Rule 809.62 regulating the form, contents and length of a petition for review. If requested by the defendant, the attorney shall file with the supreme court a petition for review containing the statement of the case and the appendix required by Rule 809.62 (2) (d) and (f), as the attorney is in the best position to formulate the statement of the case and to provide the documents required for the appendix. The defendant shall file a supplement containing the statement of the issues presented for review, the table of contents, the statement of the criteria relied upon for a review and the argument amplifying the reasons relied on to support the petition as required by Rule 809.62 (2) (a), (b), (c) and (e). The rule does not prohibit the defendant from including a supplement to the statement of the case provided by the attorney.
809.32 Annotation
The rule requires that both the petition and supplemental petition be filed within 30 days of the date of the decision of the court of appeals. As with all petitions for review, the opposing party may file a response to the petition and supplemental petition within 10 days. The amendment provides that the 10 days begins to run from the service of the supplemental petition. [Re Order effective Jan. 1, 1982]
809.32 Note
Judicial Council Note, 2001: Titles and subtitles were added. Subsection (1) was subdivided into paragraphs (1) (a) through (g).
809.32 Annotation
Subsection (1) (a) was amended to specify that the no-merit procedure applies only to direct appeals and that no-merit reports should be filed only when the defendant requests submission of a no-merit report or does not consent to closing the file without further representation by the appointed attorney.
809.32 Annotation
Subsection (1) (b) creates new counseling and notification requirements for appointed attorneys. Before filing a no-merit report, the appointed attorney must discuss each identified issue with the defendant and explain why the issue lacks arguable merit. The attorney must inform the defendant of the defendant's options: file a no-merit report, close the file without filing an appeal or a no-merit report, or file an appeal without the assistance of appointed counsel. The attorney must inform the defendant that a no-merit report will be filed if the defendant requests submission of a no-merit report or if the defendant does not consent to closing the file without further representation by the appointed attorney. The attorney must inform the defendant that, if a no-merit report is submitted, the attorney will furnish copies of the transcript and circuit court case record to the defendant upon request. The attorney must notify the defendant that, if a no-merit report will not be submitted, the attorney will forward the attorney's copies of the transcript and circuit court case record to the defendant upon request. The attorney must also advise the defendant of the no-merit procedures set forth in this section, including the defendant's right to file a response to the attorney's no-merit report, and the attorney's right to file a supplemental no-merit report and affidavit containing facts outside the record, possibly including confidential information, to rebut allegations made in the defendant's response to the no-merit report.
809.32 Annotation
Subsection (1) (c) creates a new certification rule that requires the appointed attorney to certify that the attorney has complied with the counseling and notification requirements of sub. (1) (b).
809.32 Annotation
Subsection (1) (d) contains the no-merit report service rule from former sub. (1) (a) and creates a new transcript and circuit court case record service rule. The attorney must serve a copy of the no-merit report on the defendant. If the defendant requests a copy of the transcript and circuit court case record, the attorney must forward the copies within 14 days after receipt of the defendant's request. The attorney must file a statement in the court of appeals that service has been made on the defendant.
809.32 Annotation
Subsection (1) (e) contains the response to the no-merit report rule from former sub. (1) (a). Subsection (1) (e) also creates a new rule that requires the clerk of the court of appeals to send a copy of the defendant's response to the no-merit report, within 5 days of the filing of the response, to the attorney who filed the no-merit report.
809.32 Annotation
Subsection (1) (f) was created to allow the attorney to reply to the defendant's response to a no-merit report. The rule allows the attorney to file a supplemental no-merit report and affidavit(s) disclosing information that is outside the record and relevant to the attorney's no-merit determination without violating confidentiality rules. The supplemental report and affidavit procedure is in accordance with
SCR 20:1.6 (c) (1), which allows disclosures of otherwise confidential communications "to rectify the consequences of a client's criminal or fraudulent act in the furtherance of which the lawyer's services had been used;"
SCR 20:1.6 (c) (2), which allows disclosures "to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client ... or to respond to allegations in any proceeding concerning the lawyer's representation of the client;" and
SCR 20:3.3, which requires candor toward the tribunal.
809.32 Annotation
Subsection (1) (g) creates a new rule that requires fact-finding upon a remand to the circuit court if the defendant's response to the no-merit report and the attorney's supplemental no-merit report and affidavit allege facts outside the record; and if the facts alleged by the defendant, if true, would make resolution of the appeal under sub. (3) inappropriate.
809.32 Annotation
The second sentence in sub. (2) requires the attorney to state, in the no-merit notice of appeal, of the time limit for filing the no-merit report and the calculation used to determine that time limit. The fourth sentence in sub. (2) requires the attorney to file a statement on transcript with the clerk, but exempts counsel from serving a transcript on other parties. The fifth sentence in sub. (2) requires counsel to serve copies of all other papers on the state.
809.32 Annotation
Subsection (2) (a) establishes the time limits if a no-merit report is not preceded by a postconviction motion. The cross-reference was changed from s. 809.30 (2) (g) to (e) because only the original transcript and circuit court case record request triggers the 180-day time limit.
809.32 Annotation
Subsection (2) (b) establishes the time limits if a no-merit report follows a postconviction motion.
809.32 Annotation
The 10-day time limit in sub. (4) was changed to 14 days. Please see the comment to s. 808.07. [Re Order No. 00-02 effective July 1, 2001]
809.32 Note
Judicial Council Note, 2002: When a no-merit report is filed, s. 809.32 (1) (e) gives the person 30 days after the service of the no-merit report to file a response. The time limit in sub. (1) (d) is amended to adjust the time within which the attorney must send copies of the transcript and circuit court case record because five days should be sufficient time for the attorney to make copies and send them to the person. The amendment is intended to avoid delay that may occur if the person is not served with the record in time to utilize it in preparing a response to the no-merit report. [Re Order No. 02-01 effective January 1, 2003]
809.32 Annotation
This rule is constitutional although it does not secure an indigent convict the right to counsel in preparing a petition for review. State v. Mosley,
102 Wis. 2d 636,
307 N.W.2d 200 (1981).
809.32 Annotation
The "no-merit brief" requirement under sub. (1) does not deny the right to counsel. State ex rel. McCoy v. Appeals Ct.,
137 Wis. 2d 90,
403 N.W.2d 449 (1987).
809.32 Annotation
Appellate counsel's closing of a file because of no merit, without the defendant knowing of the right to disagree and compel a no merit report, is ineffective assistance of counsel. A defendant must be informed of the right to appeal and to a no merit report, but need not be informed orally. State ex rel. Flores v. State,
183 Wis. 2d 587,
516 N.W.2d 362 (1994).
809.32 Annotation
The no merit appeal procedure does not apply to appeals regarding terminations of parental rights under s. 809.107. Gloria A. v. State,
195 Wis. 2d 268,
536 N.W.2d 396 (Ct. App. 1995),
95-0315.
809.32 Annotation
Together, sub. (4) and s. 977.05 (4) (j) create a statutory, but not constitutional, right to counsel in petitions for review, provided counsel does not determine the appeal to be without merit. If counsel fails to timely file a petition for review, the defendant may petition for a writ of habeas corpus and the supreme court has the power to allow late filing. Schmelzer v. Murphy,
201 Wis. 2d 246,
548 N.W.2d 45 (1996),
95-1096.
809.32 Annotation
When a defendant's postconviction issues have been addressed by the no merit procedure under this section, the defendant may not again raise those issues or other issues that could have been raised in a previous postconviction motion under s. 974.06, absent the defendant demonstrating a sufficient reason for failing to raise those issues previously. State v. Tillman, 2005 WI App 71,
281 Wis. 2d 157,
696 N.W.2d 574,
04-0966.
809.32 Annotation
A convicted defendant could not be faulted for his reliance on his appellate counsel's assertion in the no-merit report that there were no issues of arguable merit when there was a potential appellate issue that was also not identified by appellate court review. In that case the defendant had shown a sufficient reason for failing to raise the issue in a response to the no-merit report and was not procedurally barred from raising the issue of a sentence being illegally increased. State v. Fortier, 2006 WI App 11,
289 Wis. 2d 179,
709 N.W.2d 893,
04-3189.
