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Criminal Appeals, Duties of Counsel, Generally

State v. Iran D. Evans, 2004 WI 84, reversing unpublished decision of court of appeals
For Evans: Robert R. Henak
Issue/Holding:

¶30. During postconviction proceedings, a defendant must choose between being represented by the SPD, proceeding pro se, or securing private representation. State v. Redmond, 203 Wis. 2d 13, 19, 552 N.W.2d 115 (Ct. App. 1996). A defendant does not have the right to hybrid representation on appeal. State v. Debra A.E., 188 Wis. 2d 111, 138, 523 N.W.2d 727 (1994). The right to counsel on direct appeal is a fundamental right and includes the guarantee of effective assistance of counsel on appeal. State ex rel. Flores v. State, 183 Wis. 2d 587, 604-05 & n.3, 516 N.W.2d 362 (1994). While a defendant has the right to counsel on direct appeal, he does not have the right to counsel of his choice, or the right to insist that particular issues be raised. Oimen v. McCaughtry, 130 F.3d 809, 811 (7th Cir. 1997). It is the duty of appellate counsel to decide what issues have merit for appeal. Jones v. Barnes, 463 U.S. 745, 751-53 (1983). If appellate counsel concludes that an appeal would be frivolous, he may file a no merit report after following the procedures outlined in Wis. Stat. § (Rule) 809.32 and seek to withdraw. Flores, 183 Wis. 2d at 605. A defendant has a right to be informed of the right to a no merit report and that he has a right to insist that such report be filed if he disagrees with counsel’s opinion that the appeal would have no merit. Id. at 607, 610.9 The defendant also has the option, if he agrees with counsel that the appeal is without merit, to waive the right to appeal. Id. at 616.¶31. If, however, the defendant merely disagrees with counsel as to which issues will be raised, he has the choice of terminating counsel’s representation and proceeding pro se or proceeding with counsel and later seeking relief on the grounds of ineffective assistance of appellate counsel. Debra A.E., 188 Wis. 2d at 138. If a defendant elects the former option and desires to proceed pro se, the defendant must be provided clear warnings regarding the dangers of self-representation and waiving the right to appellate counsel before appellate counsel may withdraw. State v. Thornton, 2002 WI App 294, ¶21, 259 Wis. 2d 157, 656 N.W.2d 45.10 Moreover,

[t]he state public defender will not appoint successor counsel where a defendant disagrees with the legal conclusions of appointed counsel or when a defendant wants a second opinion as to the merits of an appeal. To do so would unduly delay the disposition of the appeal, and would be contrary to the interests of justice.

Judicial Council Committee Note, 2001, Rule 809.30, Stats. (citing Wis. Admin Code § PD 2.04).

The court also discusses in some detail the various restrictions on collateral attacks via § 974.06 and habeas corpus, ¶¶32-35. No attempt is made at summarizing the discussion, except to say: only habeas, not § 974.06, may be used to assert ineffective assistance of appellate counsel; the doctrine barring serial litigation applies equally to both procedures; and, because habeas is an equitable remedy, it is subject to the doctrine, unlike § 974.06. The court also notes without resolving the following “novel legal questions,” ¶46, which apparently would be decided by the Knight-petition court: “1) whether a defendant waives his right to appellate counsel when he directs his appointed counsel to close his file and intends to secure private representation; 2) whether appointed counsel is required to inform the defendant of the dangers of proceeding pro se when he intends to seek private counsel, such that failure to do so constitutes deficient performance; 3) whether appointed counsel renders ineffective assistance by closing the client’s file before he secures private representation, when she did so only at the client’s demand and after informing him of the dangers of closing the file before the defendant obtained new counsel.” Other issues to be resolved would be whether a motion to withdraw was required, ¶¶47-48, and whether the petition is barred by laches, ¶49.

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