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No-Merit Appeal: Generally

State v. Christopher G. Tillman, 2005 WI App 71
Tillman, pro se

Issue/Holding:

¶16. The no merit appeal procedure has its genesis in Anders v. California, 386 U.S. 738 (1967), and is codified in Wis. Stat. Rule 809.32. … Any motion to withdraw pursuant to Anders “necessarily implicates the merits of an appeal, because the premise of the motion is that the appeal is frivolous.” Wilkinson v. Cowan, 231 F.3d 347, 351 (7th Cir. 2000).¶17 Wisconsin Stat. Rule 809.32 incorporates the no merit procedure set forth in Anders, as well as setting forth more detailed requirements. First, appointed counsel examines the record for potential appellate issues of arguable merit. See Rule 809.32(1)(a) (“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.”). Next, the defendant has the opportunity to respond to the no merit report and raise additional issues. Rule 809.32(1)(e). Next, as contemplated by Anders, the appellate court not only examines the no merit report but also conducts its own scrutiny of the record to see if there are any potential appellate issues with arguable merit. See Anders, 386 U.S. at 744-45. Finally, the court’s no merit decision sets forth the potential appellate issues and explains in turn why each has no arguable merit.

¶18 … As noted earlier, the no merit process “necessarily implicates the merits of an appeal” because the premise of appellate counsel’s motion to withdraw following the filing of the no merit report “is that the appeal is frivolous.” Wilkinson v. Cowan, 231 F.3d at 351. “This can only be understood as a merits-based decision with respect to each of the claims raised in the petition.” Id.

A no-merit report, as these passages make clear, is in both form and effect a motion to withdraw. Very much unlike pre-conviction stages, formal withdrawal isn’t always necessary on postconviction review – take a look at State ex rel. Richard A. Ford v. Holm, 2004 WI App 22; and at discussion here – but (without getting into a detailed discussion) – as presently written, § 809.32 is reasonably read as making no-merit procedure as the default position. In other words, unless you are absolutely sure that the client has unequivocally consented to informal closure of the case without any action then a no-merit report is in order. Note that this is merely an interpretation, not something the court has addressed one way or the other, and take that into account. One noteworthy point the court does explicitly make is that a no-merit appeal “necessarily implicates the merits of an appeal.” This is something of an overstatement; might have been better to say, necessarily implicates the merits of an appeal on the current record. What about matters not in the record (paradigmatically: an effective-assistance claim)? This is too knotty a problem to discuss here, except to say that taken at face value, the court’s sweeping generalization is highly problematic; and to add that at least on the facts of this case there is no reason to extend the statement, generalized though it is, to extra-record situations.

 

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