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SCOW: Defendants at 2nd grade level, abandoned by counsel, must research and apply law pro se

State ex rel. Wren v. Richardson, 2017AP880-W, 2019 WI 110, affirming a court of appeals unpublished memorandum opinion; case activity (including briefs)

Two weeks ago, we posted “SCOW holds defendants abandoned by counsel to same standards as licensed lawyers,” calling State v. Pope “the most absurd decision this term (still time for worse).” Behold an even more absurd decision: even teenagers who read at 2nd grade level are held to the same standard as licensed lawyers. And, sadly, there’s still time for worse.

Wren, aged 15, was convicted of reckless homicide. His lawyer promised to file an appeal, but didn’t. When Wren discovered that fact, he did not know that it was possible to file a habeas petition requesting reinstatement of his direct appeal. He learned of this option about 11 years later from an uncle who had become incarcerated. He then filed a petition. (Don’t know whether his uncle or another prisoner helped him).  Too late, says the majority, authored by Justice Hagedorn. Wren’s lawyer may have abandoned him, but the delay was his own fault:

Nothing prevented Wren from researching available options to ensure he took advantage of every possible legal argument he could make. It surely cannot be that 20-year-olds (Wren’s approximate age when he found out no appeal was forthcoming) are deemed incompetent. And while the PSI noted Wren had a second grade reading level at the time of sentencing, that detail alone does not mean he cannot research, consult others, and find out what needs to be done. Majority, ¶23.

Last term SCOW held that laches is a defense to a habeas petition. State ex rel. Lopez-Quintero v. Dittmann, 2019 WI 58, ¶10, 387 Wis. 2d 50, 928 N.W.2d 480. The doctrine requires the State to prove: (1) unreasonable delay in filing the habeas petition; (2) lack of knowledge that Wren would assert laches; and (3) prejudice. Id., ¶16. The doctrine then requires the court of appeals (where this petition was filed) to exercise its discretion about whether its fair to apply the doctrine.

Regarding the first element of laches, the majority held that pro se status, youth and a 2nd grade reading level are not excuses for failing to research the rules, craft the best arguments, and meet filing deadlines, Opinion, ¶¶24-25. The majority explained that Wren somehow managed to get 4 unrelated pro se motions related to his conviction un file. Therefore, he could have filed a ruled-compliant habeas petition on time too.

Point of clarification. There is no filing deadline for a habeas petition so nobody really knows when Wren’s petition was due. Furthermore, in 2010-2011 when Wren was supposed to have known when, where and how to file his habeas petition, the law was unsettled. Even circuit courts and the court of appeals were uncertain of the procedure until SCOW decided State ex rel Kyles v. Pollard, 2014 WI 38, 354 Wis. 2d 626, 847 N.W.2d 805.  Yet Wren, with his 2nd grade reading level, was to have divined and executed the proper procedure before SCOW knew what it was.

Regarding the second element of laches, Wren’s lawyer abandoned him and then died, which means he could not testify at the Machner hearing regarding his failure to file an appeal. The majority held that the loss of evidence and witnesses is precisely why we have a laches doctrine. Wren’s delay until after his lawyer died prejudiced the State. Majority, ¶34.

So, the only way Wren could prevail on this point was by learning to read, graduating from law school, and filing a habeas petition that correctly anticipated both how the law would evolve and the date his lawyer would die?

Justice A.W. Bradley filed a sharp dissent (joined by Dallet and R.G. Bradley). Among many other excellent points, she noted that the circuit court found (as a matter of fact, mind you) that counsel told Wren he would file an appeal but didn’t. Abandonment by counsel is per se prejudicial and a violation of the 6th Amendment.  See e.g. Garza v. Ohio, 139 S. Ct. 738, 744 (2019)In this situation, responsibility for the denial of counsel is imputed to the State, not the defendant.

Note the combined effect of Pope and Wren: When defense counsel abandons an indigent client, the client must immediately proceed pro se with the acuity of a licensed lawyer. If the client can’t read, too bad. If he doesn’t know the law, too bad. If the courts destroy his transcripts, too bad. If his lawyer hides, disappears, or dies, too bad. If he’s innocent, too bad. He doesn’t get a direct appeal. That would be unfair to the State.

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