¶28 Prihoda, Sawyer, Lohr and Schafer all employ a three-element test where the first element is unreasonable delay in bringing the claim and the other two elements apply to the party asserting laches: lack of knowledge (that the claim would be brought) and effect (prejudice). In Neylan, McMillian, Smalley and Evans, the first element is the same, unreasonable delay, but the second element of the two-element analysis is set out as “actual prejudice.” When the delay is not extensive, the movant’s lack of knowledge that the claim would be brought is important in assessing prejudice. Neylan, 121 Wis. 2d at 491 n.5. Stated otherwise, actual prejudice includes the concept that the party raising laches did not have knowledge that the claim would be brought and that he suffered prejudice because of the delay in bringing the claim.
¶29 Because it may be difficult to quantify “actual prejudice,” we conclude that the three-element analysis of Sawyer and Prihoda provides the better analytic framework for assessing a laches defense than does the two-element analysis set out in McMillian, Smalley and Evans. Carefully applied to the facts, assessing whether a party raising laches did not have knowledge that the claim would be brought will permit the circuit court to more fully apprise the effect of a claim that has been unreasonably delayed. For example, if the State had knowledge that Coleman would bring his claim of ineffective appellate counsel, but destroyed all the records that it possessed that were relevant to that claim, the State might be prejudiced in defending against the claim, but it would nevertheless fail on its laches defense.
Coleman was convicted and sentenced to 80 years in 1986. Appointed appellate counsel unsuccessfully pursued a sentence modification and then, after consultation with and agreement from Coleman, terminated his appointment in 1987 without filing an appeal. Then, 17 years later, Coleman filed a habeas petition in the court of appeals alleging that counsel had been deficient in not identifying a potentially meritorious and preservedsuppression issue. (That is, the claim is not one of client abandonment but instead of identification of an issue already apparent in the record.)First, a procedural aspect noted only in the barest of passing by the court: where, and by what mechanism, should an ineffective-assistance claim be brought? These waters were first muddied by State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 797-98, 565 N.W.2d 805 (Ct. App. 1997):
… Under Knight, a claim of ineffective assistance of appellate counsel is properly raised by petition for a writ of habeas corpus in the appellate court which heard the defendant’s direct appeal. See Knight, 168 Wis.2d at 512-13, 484 N.W.2d at 541. However, under Rothering, where the alleged deficiencies relate to action or inaction by postconviction counsel, the ineffective assistance claim should be raised in the circuit court either by a petition for a writ of habeas corpus or a motion under § 974.06, STATS. SeeRothering, 205 Wis.2d at 672-74, 556 N.W.2d at 138-39.
If Coleman’s challenge is to postconviction counsel’s failure to identify the suppression issue, then under Smalley it should have been raised by § 974.06 motion filed in the trial court. But if this failure is attributable to appellate counsel, then the habeas petition Coleman filed in the court of appeals was the proper way to go. But just which role was counsel occupying when he failed to take up the suppression issue? True, you can simply file an appeal raising an already-preserved issue, which would arguably make the omission attributable to appellate counsel. But there’s nothing to prevent renewal of issue on postconviction motion, something that makes sense if there’s going to be a postconviction motion anyway, as indeed there was; so, the omission could well be attributable to postconviction counsel. The problem lies with Rothering‘s stilted and often-blurred distinction between these categories — which brings us back to Coleman.Habeas, the court says without any elaboration, is the correct vehicle for raising Coleman’s claim: “Coleman has properly chosen the last form [i.e., habeas as opposed to § 974.06 motion] under which to seek relief from his convictions because his claim is based on an allegation of ineffective assistance of appellate counsel,” ¶16. At a minimum, this would seem to mean that failure to file an appeal where the record contains apreserved issue is a failure attributable to appellate counsel, and therefore is challenged via habeas in the court of appeals. Because Rothering involved an unpreserved issue, its distinction between types of counsel may well remain viable. In any event, the fault line between Rothering motions and habeas petitions (preserved vs. non-preserved issues) is at least arguably sharpened, if implicitly, by Coleman.
Smalley does take an explicit beating on its laches analysis, ¶25 (“While Smalley refers to laches and uses laches terminology, it appears to have conflated its analysis of the habeas petition’s timeliness with the unreasonable delay element of laches.”), and it may be that the result in that case is now in doubt (unexplained 8-year delay in filing habeas claim of client abandonment was unreasonable and for that reason alone review was barred). Note, however, the court’s apparent approval of a timeliness analysis, as distinct from laches and as to which the habeas petitioner bears the burden of proof: “the decision places the burden of proof for timeliness of the petition on Smalley, which is in accord with reviewing timeliness in regard to a habeas petition,” ¶25.
On to the merits. The “uncontroverted fact that Coleman knew of his claim for more than 16 years but … did nothing, year after year,” establishes that his “delay was unreasonable as a matter of law,” ¶33. But laches requires more, namely prejudice to the State, something the court of appeals impermissibly assumed, necessitating remand:
¶36 While the court of appeals’ assumption may prove true, it is not the only possible outcome that could result from an inquiry of postconviction counsel. Therefore, it cannot be decided as a matter of law. To the contrary, appellate counsel may be able to recall or to reconstruct what happened during his communications with Coleman; what Coleman’s response was; and how they reached the ultimate decision not to appeal. If he cannot, then the court of appeals is correct that the State suffered prejudice in being able to meet Coleman’s claim of ineffective assistance of appellate counsel. But if counsel proves the assumption of the court incorrect, further proceedings on Coleman’s claim of ineffective assistance will be required.
(The court of appeals lacks authority to make its own factual findings, and therefore must either use a special master or remand to the circuit court, ¶2 n. 2 and accompanying text.)
The 3-vote concurrence, incidentally, makes the cogent point that without fact-finding it can’t be said that the State proved unreasonable delay in filing the petition, ¶¶39, et seq. Yet that does seem to be exactly what the majority has done, if by the barest of margins. The best that might be said is that a delay significantly less than 16 years might lead to a different conclusion.