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Appeal – Right to, Forfeited by Flight

State v. LaMontae D.M., 223 Wis.2d 503, 589 N.W.2d 415 (Ct. App. 1998)
For LaMontae: Terry Rose

Issue/Holding: A juvenile’s absconding from a residential treatment center forfeits his/her right to appeal the delinquency adjudication that placed him in the center. In other words, State v. Braun, 185 Wis. 2d 152, 516 N.W.2d 740 (1994), which applies an appeal-forfeiture rule to an adult absconder, extends fully to juvenile absconders.

A footnoted discussion concerning appellate counsel’s duty of pre-appeal discussion with the client should be of some interest. LaMontae absconded before appellate counsel could talk to him. The court notes that an attorney “may not act on the client’s behalf without the client’s consent and authorization,” which suggests that appellate counsel shouldn’t have filed the notice of appeal in this case. However, he did consult with trial counsel, who informed him that LaMontae wanted to appeal an underlying motion to suppress, and the court therefore concludes:

Based upon appellate counsel’s response and the record, we conclude that trial counsel properly informed the juvenile about the rights of appeal. We are satisfied that before he absconded, Lamontae had sufficient information on the right of appeal and was able to make a fully informed decision about whether and how to exercise his right of appeal. See State ex rel. Flores v. State, 183 Wis.2d 587, 605, 516 N.W.2d 362, 367 (1994).

Thus, an appellate attorney may remain under an ethical obligation to pursue postconviction relief, notwithstanding the client’s flight even though the court clearly is going to dismiss any appeal filed, under the appeal-forfeiture rule. For authority approving the “practice” of dismissal of the appeal with prejudice under the “fugitive disentitlement” doctrine, see U.S. v. Awadalla, 357 F.3d 243 (2d Cir. 2004); and Goecke v. Branch, 514 U.S. 115 (1995) (upholding “well-established fugitive dismissal rule which provides that a defendant who attempts to escape justice after conviction forfeits her right to appeal”). In other words, “obediance to state custody [is] a procedural precondition of appellate rights,” Taveras v. Smith, 2nd Cir No. 05-5579-pr, 9/11/06. What happens, though, when the defendant absconds for a relatively brief period of time and is then caught? In such an instance, the policies supporting the fugitive disentitlement doctrine may evaporate, see, e.g., Hanson v. Phillips, 442 F.3d 789 (2nd Cir 3/30/06) (“The first issue is whether we should dismiss this appeal pursuant to the fugitive disentitlement doctrine because Hanson was a fugitive from justice for two months. As Hanson has been apprehended and prosecuted for bail jumping, we conclude that there are no legitimate justifications for dismissing this appeal.”). Compare, Taveras (where application of fugitive disentitlement doctrine is discretionary in any given case, dismissal of pending appeal after fugitive’s return to custody improper absent appointment of appellate counsel).

Authority for idea that absconded defendant must actually surrender such that return to custody via capture by authorities entitles court to dismiss appeal: State v. Fettel, OR App No. A131427, 1/3/07.

Extension of fugitive dismissal rule to civil appeals: Colombe v. Carlson, 2008 ND 201 (also: general discussion of rule, along with idea that because of severity of sanction it should be cautiously applied, ¶14).

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