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SCOW to decide whether defendant who is denied all transcripts for appeal gets a new trial

State v. Robert James Pope, Jr., 2017AP1720-CR, petition for review granted 4/9/19; case activity (including briefs)

Issues:

Where no transcripts of a jury trial occurring over 20 years ago are available in a direct appeal and appellate counsel is new to the case, does application of  State v. Perry’s requirement that appellant assert a “facially valid claim of error” that might be supported by a portion of a missing transcript deny the constitutional right to meaningful appellate review?

Whether a statement on transcript filed in an appeal binds an appellant in all future appeals in the same case?

The first issue is the big one. Wisconsin courts have previously addressed the procedure to be followed where a defendant appeals a conviction but a portion of a trial testimony was missing and can’t be transcribed. See State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987), and State v. DeLeon, 127 Wis. 2d 74, 372 N.W.2d 635 (Ct. App. 1985).

Pope’s situation is very different. A jury convicted him of homicide in 1996, and he directed his trial lawyer to file a notice of intent. His lawyer never did so his direct appeal rights expired. Pope spent years trying to reinstate them. After filing a habeas petition in 2016 he was finally permitted to file a notice of intent and to order trial and pretrial transcripts only to discover that court reporters could not provide any because they had destroyed their notes pursuant to SCR 71.01(47). So Pope filed a Rule 809.30 postconviction motion arguing that the lack of transcripts denied him his constitutional right to a meaningful appeal and thus he was entitled to a new trial.  The postconviction court agreed. But in a “theater of the absurd” type decision the court of appeals reversed and held that Pope’s current appellate lawyer (who was not his trial lawyer 20 years ago) was required to divine the “colorable claims” that lurked in the missing transcripts and assert them in her postconviction motion. Is that possible . . . or even ethical? We’ll find out next term when SCOW decides this case.

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