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Right to Retained Postconviction Counsel of Choice – Based on 6th Amendment

State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski

Issue/Holding: A defendant has a 6th amendment-based right to retained postconviction counsel of choice:

¶9        The State correctly counters that Miller and Gonzalez-Lopez involved the right to counsel of choice at trial. Here, Peterson was postconviction, at a Machner proceeding. …

¶10      Martinez and Tamalini provide no guidance on the question presented. The issue here arose not on direct appeal under Wis. Stat. § 808.03, but rather when Peterson pursued postconviction relief in the circuit court. See Wis. Stat. § 808.01(1) (“appeal” means review in an appellate court).

¶11      We have located no Wisconsin case directly on point; that is, addressing the right to be represented by retained counsel of choice during postconviction proceedings in the circuit court. Neither party has offered any mandatory authority for deciding the question. Nonetheless, sufficient guidance exists in Sixth and Fourteenth Amendment case law to indicate that a person has a qualified right to counsel of choice. … It is apparent from the Whitmore case and SM 33 that Wisconsin affords a convicted person the right to postconviction counsel. It would be absurd to suggest that a person has a right to counsel at trial and a right to counsel on appeal, but no right to the assistance of counsel at a postconviction proceeding in the circuit court, which is often the precursor to and augments the record for an appeal.

¶12      When considering whether the right to counsel at a Machner hearing is derived from the Fourteenth Amendment, as in Douglas, or from the Sixth Amendment, as in Gonzalez-Lopez, Wheat, and Miller, we observe that the Machner proceeding is much more akin to a trial than an appeal. …

Does the basis of the right to postconviction counsel really matter? There is absolutely no doubt that the right attaches as a matter of equal protection as the State argues, ¶9 (and as a matter of due process as well, e.g., State ex rel. Ruven Seibert v. Macht, 2001 WI 67, ¶¶1, 12). However, regulation of the right is pretty well settled under the 6th A, less so under the 14th, therefore in theory it may matter how the right is pigeonholed. Might matter … a decent argument could be made that under the 14th A you should have the same right to counsel of choice as under the 6th. But that isn’t the route chosen by the court; instead, as the block quote indicates, the court hitches the right to the 6th A. Just one little problem: it’s not a particularly tenable approach. The 6th amendment affords trial-level rights (which is why, for example, there’s no right to confrontation at a preliminary hearing or, for that matter, at sentencing). The 6th amendment simply doesn’t apply to appeals which the court, of course, acknowledges; but instead of accepting the ineluctable conclusion, the court instead attempts a transparently clumsy parsing of appellate procedure: a Rule 809.30 motion is, the court says, distinct somehow from a “direct appeal,” ¶10. Well. Section 974.02 says that “(a) motion for postconviction relief” must be made per Rule 809.30; and Rule 809.30(1)(c) defines “postconviction relief” as “an appeal or a motion for postconviction relief.” You get the drift: a Rule 809.30 postconviction motion is part of the direct appeal process, and separating it out (let alone consigning it to the category of trial, or pre-conviction process) is arbitrary.

The court, to be sure, has previously distinguished “postconviction” from “appeal” procedure (albeit not to the extent of fashioning the former as trial-level in nature), most notably in State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996) (claim of ineffective assistance of postconviction counsel must be raised via § 974.06 motion in circuit court; IAC claim against appellate counsel must be raised by habeas in appellate court). The distinction may be arbitrary, State ex rel. Richard A. Ford v. Holm, 2004 WI App 22, ¶9 n. 4 (“(t)he terms are sometimes used interchangeably”), but we’ve lived with it awhile now … at worst, it makes life interesting for someone deciding where and how to launch a collateral attack. But the implications of the current opinion go further. If the 6th amendment right to counsel applies at the postconviction stage, why not the others? Does the 6th amendment apply only to Machner hearings, or to any postconviction evidentiary hearing? This isn’t to say that the result is wrong—far from it—only that it is the due process clause not the 6th A that supports the flexible analysis deemed decisive by the court (¶12).

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