on review of summary order (District 1); for Sutton: Colleen Ball, SPD, Milwaukee Appellate; case activity
No-Merit Appeal Procedure – Remand for Evidentiary Hearing
1. (Composed by On Point:) Whether § 809.32(1)(g) requires the court of appeals to remand a case to the circuit court for an evidentiary hearing where, during the course of a no-merit proceeding, an arguably meritorious claim for ineffective assistance of postconviction counsel becomes apparent?
2. (Added by Court:) Whether a defendant can raise a claim of ineffective assistance of postconviction counsel or appellate counsel when the defendant finished his or her sentence before the conviction became final with the conclusion or expiration of direct appeal and, if so, the proper procedural mechanism for raising such a claim?
Postconviction counsel identified a potentially meritorious issue and filed a Rule 809.30 motion for new trial, which the trial denied solely because of a pleading defect in the motion papers. (Counsel argued that Sutton, who was convicted after bench trial, didn’t validly waive his right to jury trial. The motion was a nonstarter, however, because it inadvertently neglected to assert that Sutton was unaware of the right to unanimous verdict, State v. Grant, 230 Wis. 2d 90, 102, 601 N.W.2d 8 (Ct. App. 1999) (Grant “has failed to allege that he was unaware of the jury unanimity requirement. That omission is fatal to his postconviction claim.”). This pleading omission was mere oversight on counsel’s part, which she sought to rectify by moving the court of appeals to extend the now-lapsed 809.30 motion deadline so she could correct the defect with a renewed motion. The court refused the request, leaving counsel in a quandary: she was sitting on a potentially meritorious issue but the record as constituted did not support a merits appeal. Counsel sought to resolve the problem by filing a Rule 809.32 no-merit appeal, and arguing in her report that the defect in the postconviction motion was due to her own lack of familiarity with the pleading requirement (hence, a function of ineffective assistance of counsel rather than strategy), and curable with a remand. Sutton, availing himself of the opportunity afforded by no-merit procedure to respond to counsel’s report, asserted that he was unaware of the unanimity requirement. At that point, then, the court of appeals had before it an arguably meritorious issue in the posture of a no-merit appeal. The court nonetheless summarily affirmed, ruling simply that the trial court “properly denied the postconviction motion that was before it.”
That’s the background. The larger question, beyond the specific factual context, relates to when the court of appeals on a no-merit appeal may or should utilize the remand procedure in Rule 809.32(1)(g) to remand for fact-finding on an issue that could support a merits appeal. This problem was touched on, but no more than that, in State v. Allen, 2010 WI 89, ¶88, n. 9:
… However, the broad scope of review mandated by Anders suggests that the court of appeals in a no-merit appeal should identify issues of arguable merit even if those issues were not preserved in the circuit court, especially where the ineffective assistance of postconviction counsel was the reason those issues were not preserved for appeal.
 Although not in effect at the time of Allen’s no-merit appeal, Wis. Stat. § 809.32(1)(g) (2007-08) now permits the court of appeals to remand for an evidentiary hearing if the defendant and attorney allege disputed facts not in the record and that the defendant’s alleged facts, if true, would make disposition under § 809.32(3) inappropriate.
The State resists the idea that subs. (1)(g) is the proper vehicle for resolving a claim of ineffective assistance of postconviction / appellate counsel, arguing that this subsection may be used to determine ineffective of trial, but not appellate, counsel. Not clear why the one but not the other, and anyway isn’t this view overly concrete? After all, the whole point of the procedure is that “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,” State v. Tillman, 2005 WI App 71, ¶17, 281 Wis. 2d 157, 696 N.W.2d 574. When counsel’s own report – not to say the entire record, which includes prior exchanges between counsel and the court – asserts the existence of an arguably meritorious motion, doesn’t it violate the spirit of Anders, if not the precise letter of Rule 809.32, to find no arguably meritorious issues?
Why couldn’t Sutton just raise the issue under § 974.06? He’s out of custody, therefore ineligible for relief under that provision, State v. Theoharopoulos, 72 Wis.2d 327, 240 N.W.2d 635 (1976) (court “without jurisdiction” to entertain 974.06 motion brought by someone no longer in custody). But the State’s response to Sutton’s petition for review argues that as an equitable matter he should be allowed to bring a habeas challenge to the conviction, notwithstanding absence of custody. Hence Issue No. 2, added by the court.