On Point

Bettendorf v. St. Croix County, 2008 WI App 97

Issue/Holding: An appellate “brief contain(ing) a collection of attacks against [opposing counsel] that are nothing more than unfounded, mean-spirited slurs” subjects its author to ethical sanction:

¶17      “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.” (Emphasis added.) Preamble, SCR ch. 20 (2005-06). “The advocate’s function is to present evidence and argument so that the cause may be decided according to law…. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.” ^[3] Comment, SCR 20:3.5 (2005-06). Given corporation counsel’s unwarranted belligerence, it is the determination of this panel that a copy of this opinion shall be furnished to the Office of Lawyer Regulation for review and further investigation, as that office may deem appropriate.

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 ^[3] We thus appreciate Bettendorf’s attorney’s professionalism and restraint, demonstrated by his refusal to turn his reply brief into a similar set of attacks.

An object lesson in the dangers of brief-writing as therapy—ventilating, in a word. The court quotes some (or is it all? the court doesn’t say) of the offending language: ¶¶15-16. Sophomoric? No doubt. Personal? Well, use of the personal pronoun “I” is a bit of a giveaway. Clearly, the rhetoric is both gratuitous and self-defeating. (Remember, respondent made the offensive argument; the appeal, without getting into the details, seems quite frivolous and perhaps the appellant would have been sanctioned had it not been for the distraction caused by respondent’s tone.) Let’s agree, then, that respondent’s approach is one an effective advocate should always avoid, at all costs. But just why was it unethical rather than merely ineffectual? For exhibiting what the court oddly characterizes as “unwarranted belligerence”? The characterization suggests, by the way, that warranted “belligerence” is within bounds. And if that is so, then why wasn’t counsel’s belligerence warranted by the mere fact of a patently frivolous appeal?

There is, to be sure, no doubt that sufficiently aggravated and personal attacks on opposing counsel run afoul of ethical rules, e.g., U.S. Bank National v. City of Milwaukee, 2003 WI App 220, fn. 4; see also, Matter of Abbott, 925 A.2d 482 (Del. 2007). But where the line is drawn remains to be seen, nor does the court quite get around to saying. Perhaps a boundary can’t be set. At a minimum, then, it’s best to avoid ascribing motive to your opponent, as counsel apparently did here (accusing appellant of pursuing “excessive” “self-interest”).

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

Issue/Holding: A defendant has a 6^th 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 6^th A, less so under the 14^th, therefore in theory it may matter how the right is pigeonholed. Might matter … a decent argument could be made that under the 14^th A you should have the same right to counsel of choice as under the 6^th. But that isn’t the route chosen by the court; instead, as the block quote indicates, the court hitches the right to the 6^th A. Just one little problem: it’s not a particularly tenable approach. The 6^th 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 6^th 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 6^th amendment right to counsel applies at the postconviction stage, why not the others? Does the 6^th 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 6^th A that supports the flexible analysis deemed decisive by the court (¶12).

State ex rel. Jarrad T. Panama v. Hepp, 2008 WI App 146
For Panama: Philip J. Brehm

Issue/Holding: Panama’s collateral attack on a sentence previously affirmed by no-merit appeal may be canalized into a “Knight” habeas petition, at least where the challenge is based on a potential defect apparent in the record.

The court continues to dredge up the terrain between direct appeal and collateral attack: Knight falls on one side, Rothering on the other. How do you know on which side to park? First, the background, briefly stated. The court of appeals affirmed Panama’s plea-based conviction and sentence in a prior, Rule 809.32 no-merit appeal. Subsequently, the same attorney who filed the no-merit report discerned a missed issue and filed this habeas, alleging that he was ineffective for overlooking the issue, which is as follows:

¶4        Panama entered a no-contest plea in accordance with a negotiated plea agreement. The plea agreement specified in relevant part, “There are no agreements as to sentencing but the State will be requesting prison left to the court’s discretion.” Although that provision appears to be an agreement by the prosecutor to refrain from commenting on the length of the sentence the court should impose, at the sentencing hearing, the prosecutor argued: “The pre-sentence report asks that you impose ten years in prison. I concur with that recommendation because of the nature of the offense damage that’s been done to the victim.” Panama’s counsel did not object to this comment and the trial court imposed the recommended ten-year sentence.

The defect both appears in the original record and is pretty glaring (which, among other things, means that the court of appeals should have seen it while ruling on the no-merit appeal). Thus, the AG doesn’t now argue that the DA could agree to hold to her tongue and then without consequence advocate a specific outcome; that would be frivolous. Instead, the AG resorts to the hypertechnical defense that Panama filed the wrong paperwork: he filed a Knight (habeas) petition in the court of appeals, when he should instead have a filed a Rothering (§ 974.06) postconviction motion. To make matters worse, relevant caselaw on this procedural aspect, as the court of appeals charitably concedes, “create(s) inconsistencies,” ¶21. State v. Knight, 168 Wis. 2d 509, 520, 484 N.W.2d 540 (1992) says a claim of ineffective assistance of appellate counsel must be pursued by habeas petition filed in the court of appeals, while State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996) says that a claim of ineffective assistance of postconviction counsel must be raised via § 974.06 motion in circuit court. The distinctions can be arbitrary and the procedure therefore a trap for the unwary, as the court presently appears to recognize.

¶25      In sum, the cases collectively create much confusion and delay. Common sense suggests that all claims of ineffective assistance of counsel, including appellate counsel, be initially addressed in the circuit court. This cannot be done, however, without overruling or modifying either Knight or Rothering, which this court cannot do.

But now add another layer of complexity due to the particular and somewhat unusual context, because this is a collateral attack on a Rule 809.32 no-merit affirmance. The court of appeals has previously grappled with this problem. In what appears to be the first meaningful such go-around, the court decided that the defendant’s failure to respond to the no-merit report waived his subsequent attack on the effectiveness of his trial attorney’s representation; it then fell to the 7^th Circuit to apply the law correctly, Emmanuel Page v. Frank, 343 F.3d 901 (7th Cir. 2003) (“It would be incongruous to maintain that Mr. Page has a Sixth Amendment right to counsel on direct appeal, but then to accept the proposition that he can waive such right by simply failing to assert it in his pro se response challenging his counsel’s Anders motion.”). The court next held that, at least where the defendant was raising an issue functionally identical to one affirmed by the prior no-merit appeal, the new challenge was procedurally barred, State v. Christopher G. Tillman, 2005 WI App 71, ¶24 (“Tillman’s current phrasing of his grievance in terms of double jeopardy and multiplicity is simply a resurrection of his prior arguments under new labels”). The last case in this trilogy, however, authorized a 974.06 attack on a sentence, notwithstanding a prior no-merit affirmance that failed to discuss that sentencing issue, in State v. Ricky J. Fortier, 2006 WI App 11.That’s the backdrop, legally and factually. Panama filed a “Knight” petition, and the State argues that he should have instead filed a § 974.06 Rothering motion, as required (or so the AG argues) by Fortier. The court rejects that contention, holding that Fortier didn’t explicitly discuss ineffective assistance of counsel, just whether there was “sufficient reason” for overcoming the 974.06 serial litigation bar, Panama, ¶16 (“In other words, Fortier is best understood as concluding that counsel’s failure to raise an arguably meritorious issue in a no-merit report is a ‘sufficient reason’ under Escalona-Naranjo for the defendant’s failure to raise the issue in a response, thus preventing the no-merit procedure from serving as a procedural bar in a subsequent § 974.06 motion, regardless of whether counsel’s failure met both the deficient performance and prejudice standards of an ineffective assistance claim.”).

The court goes on to say that the “Knight” petition properly raised the matter of the overlooked issue, albeit under an ineffective-assistance rationale:

¶27      As in so many cases that preceded this one, there are competing analyses which could be employed here. The fact that the plea breach issue was not preserved by a contemporaneous objection by trial counsel and that the arguably ineffective assistance of trial counsel was not preserved by postconviction counsel seems to place the case within the ambit of Rothering. In other words, because the claim is at its core an allegation that trial counsel failed to object to a plea agreement breach, the circuit court would seem in the best position to evaluate the issue. But unlike the direct appeal situation in Rothering, a no-merit proceeding also afforded appellate counsel the opportunity to explain why certain issues would lack arguable merit because they have been waived. Such discussion, in turn, would have provided this court with an opportunity to consider whether the waiver might be one which should be excused in the interests of justice, or whether there exists a viable claim of ineffective assistance of trial counsel. Therefore, in the no-merit context, there could be an argument that counsel provided ineffective assistance in both postconviction and appellate contexts by failing to preserve an issue, and then failing to bring the waived issue to this court’s attention. As to the failure in the no-merit context, this court is in the best position to evaluate the ineffective assistance challenge. We conclude that the deciding factor here is that the defendant is seeking, inter alia, to overturn this court’s no-merit decision and reinstate all of his postconviction rights. Under Knight, a writ of habeas corpus to this court is still the proper mechanism for seeking that relief.¶28      Under Machner, however, we cannot resolve the present Knight petition until there has been a postconviction hearing at which factual findings are made regarding: (1) whether the plea agreement in fact required the State to refrain from recommending any particular length of prison time; and (2) whether trial counsel had any strategic reason for failing to object to the prosecutor’s recommendation of ten years in prison.

Presumably, then, Panama might have litigated this under a Fortier-type § 974.06 motion. (The court certainly doesn’t suggest otherwise; it does not, for example, purport to distinguish Fortier nor does it have the authority to overrule it.) Apparently, then, the court is saying that a “Knight” petition is a permissible, not exclusive, remedy – fine, but there’s nonetheless a certain amount of question-begging involved. As ¶¶27-28 suggest, the theory is that litigation of the no-merit report violated Panama’s right to effective assistance of counsel. This approach, however, is flawed at the conceptual level. A no-merit report is, in essence, a motion to withdraw as counsel; the court must conduct its own, independent scrutiny of the record to determine whether it will grant the motion. It is true that counsel in this instance should have instantly perceived the issue. But recall that the issue was quite apparent in the record, so that the court should have discerned it. “Should have,” in any event, if it had properly discharged its own duty to make an independent determination of the existence of any arguable issue appearing in the record. The court thus erred in its own right, and its failure to carry out its mandated duty is a “sufficient reason,” to the extent one is necessary, to ignore the serial litigation bar. In other words, Fortier would have provided all the ammunition Panama needed for a 974.06 motion (as opposed to a habeas). Under a Knight habeas, the defendant-petitioner has the additional burden of showing that appellate counsel was ineffective. (Recall the court’s acknowledgement, ¶16, that Fortier did not rest on an IAC claim.) Won’t be a problem in this case, seemingly, but why take on that extra burden if you don’t have to? On the other hand, there are certainly advantages flowing from a successful Knight petition. Reinstatement of 809.30, direct-appeal rights, which would of course lead to plenary review of any and all potential issues, for one; reinstating the deadline for a 2254 habeas (though this is a highly technical area and the practitioner must proceed with great caution). Contrastingly, a Rothering motion is limited to the issue(s) raised by the motion (which have to be constitutional or jurisdictional by definition), and the circuit court lacks authority to reinstate the direct appeal. So, there are potentially complex tactical considerations at the very outset.

State v. Elizabeth A. White, 2008 WI App 96
For White: T Christopher Kelly

Issue/Holding:

¶8        To prevail on a motion for reconsideration, a party must either present newly discovered evidence or establish a manifest error of law or fact. Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI App 129, ¶44, 275 Wis. 2d 397, 685 N.W.2d 853. A manifest error of law occurs when the circuit court disregards, misapplies, or fails to recognize controlling precedent. Id.¶9        We review a circuit court’s denial of a motion for reconsideration to determine if the court properly exercised its discretion. Id., ¶6. A circuit court erroneously exercises its discretion if that exercise is based on an error of law,State v. Davis, 2001 WI 136, ¶28, 248 Wis. 2d 986, 637 N.W.2d 62, and we review questions of law de novo. See State v. Kramer, 2001 WI 132, ¶17, 248 Wis. 2d 1009, 637 N.W.2d 35. The issue of the correct legal standard presents a question of law. Id. Thus we review de novo whether the court’s denial of the motion for reconsideration was based on an error of law in that it did not apply controlling precedent.

State v. Audrey A. Edmunds , 2008 WI App 33; prior history: State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999), habeas relief denied, Edmunds v. Deppisch, 313 F.3d 997 (7th Cir. 2002)
For Edmunds: Keith A. Findley, UW Law School

Issue/Holding: Presentation of expert testimony to establish, under a theory of newly discovered evidence, a recent revision in symptomatology of shaken baby syndrome isn’t procedurally barred notwithstanding a previous such effort:

¶11      The problem with the State’s argument is that the evidence offered in Edmunds’s current postconviction motion is entirely different in character from the evidence offered in her 1997 postconviction motion. …¶12      In her 1997 motion, Edmunds argued that the medical testimony she offered was newly discovered because defense counsel had not located the experts, who were from out of state, to provide a minority opinion that challenged the majority opinion expressed by the State’s witnesses at trial. The defense experts in the 1997 motion would have offered the existing theories in the medical community, disavowed by the mainstream, that shaking alone could not cause fatal injuries, that a previous brain injury can spontaneously re-bleed, and that an infant can experience a head trauma and have a significant lucid interval. In contrast, the defense experts who testified for the 2006 postconviction motion explained that in the past ten years, a shift has occurred in the medical community around shaken baby syndrome, so that now the fringe views posited in 1997 are recognized as legitimate and part of a significant debate. They explained that there has been significant development in research and literature that challenges the medical opinions presented at Edmunds’s trial. Thus, the State’s argument that this motion is the same as Edmunds’s 1997 motion, or that Edmunds could have raised her current arguments in her appeal from the circuit court’s 1997 decision, are unavailing. We turn, then, to the merits of Edmunds’s appeal.

State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08
For Champlain: Martha K. Askins, SPD, Madison Appellate

Issue/Holding:

¶15      The State first argues that Champlain has waived the armband issue. The State contends that Champlain cannot not be heard to complain about the jury seeing the armband device when he himself declined Strand’s offer of a long-sleeved shirt before he was brought into the courtroom for his trial.

¶16      However, waiver is the intentional relinquishment of a known right. State v. Matson, 2003 WI App 253, ¶41, 268 Wis. 2d 725, 674 N.W.2d 51. We indulge in every reasonable presumption against waiver of a constitutional right. See State v. Baker , 169 Wis. 2d 49, 76, 485 N.W.2d 237 (1992).  In this case, at virtually the last minute before entering the courtroom, Strand informed Champlain he had to wear the Band-It. This event occurred outside the courtroom setting and thus was not captured or preserved on the record. Nor was it memorialized by any other method. Generally, waiver will not be presumed from a silent record. See id. We are not prepared to hold that by opting to wear his own clothing instead of something from jail storage, Champlain should be held to have appreciated and weighed the legal implications of declining Strand’s offer. In short, the record does not show that Champlain intentionally relinquished a known right. ^[8] Matson, 268 Wis.  2d 725, ¶41.

State v. Jeremy T. Greene, 2008 WI App 100, PFR filed 7/14/08
For Greene: Kristen D. Schipper

Issue: Whether the sentencing court may order that DOC distribute “gifted” (as opposed to wage-based) funds in a prisoner’s account to satisfy a restitution obligation.

Holding:

¶12      We observe that Wis. Stat. § 973.20 does not limit the consideration of a defendant’s ability to pay out of funds derived from only earnings or wages. In interpreting the restitution statute, we construe its provisions “broadly and liberally in order to allow victims to recover their losses as a result of a defendant’s criminal conduct.” State v. Anderson, 215 Wis. 2d 673, 682, 573 N.W.2d 872 (Ct. App. 1997). Applying this interpretative principle we conclude that “financial resources” refers to all financial resources available to the defendant at the time of the restitution order, including gifted funds, except where otherwise provided by law.  ^[6] Because a circuit court may consider all sources of funds held by a defendant in determining the amount of restitution, it follows that a court may also order a defendant to pay restitution out of all funds held or available to a defendant, including gifted funds. We therefore conclude that, under § 973.20, a circuit court has the authority to order a defendant to pay restitution from all of his or her “financial resources,” including gifted funds, available at the time of the restitution order and as funds become available to the defendant at a later time.

The trial court’s reliance on Wis. Admin. Code § DOC 309.49(4)(e) (DOC may disburse prisoner’s funds to satisfy “claims reduced to judgment”) is rejected, because this code provision doesn’t address the circuit’s court authority to issue the order in the first place (¶10). The court also embellishes State v. Troy B. Baker, 2001 WI App 100, ¶17 (trial court has authority under § 303.01(8)(b) to order disbursement of restitution from prison wages), suggesting that its  invocation of § 303.01(8)(b) rather than § 973.20 was misplaced (¶9 n. 3); nonetheless, Baker “was correctly decided.” The court also stresses “the strong equitable policy underlying” § 973.20, namely “to compensate the victim.” Obviously, then, the statute is construed broadly rather than narrowly.