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Constitutional Nature of Right to Appeal

State v. Michael J. Parent, 2006 WI 132, on certification
For Parent: William E. Schmaal, SPD, Madison Appellate
Amicus: Meredith J. Ross & William E. Rosales

¶17      Article I, Section 21(1) of the Wisconsin Constitution and Wis. Stat. § 808.03(1) guarantee a person convicted of a crime in Wisconsin the right to appeal his or her conviction to the court of appeals. The United States Supreme Court has held that a person appealing his or her conviction has a Sixth Amendment right to counsel on the first appeal, Douglas v. California, 372 U.S. 353, 356-57 (1963), and that this right includes the right to effective assistance of counsel. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985).

Minor quibble: the cited authorities don’t identify the source of the federal right to direct-appeal representation as the 6th amendment; rather, it’s an incident of 14th amendment due process and equal protection. (Because, in short, there is no right to an appeal guaranteed by the U.S. Constitution—however, so long as the state does provide for appeal as a matter of right the indigent appellant is entitled to the same access to the right as solvent appellants). But there is no doubt that, as the court says, this right—however sourced—carries with it a guarantee of effective assistance. The only probable implication is that for appellate no less than trial representation effectiveness is measured generally under the familiar Strickland-based standards. As for the state-based right to appellate representation: it is immediately guaranteed under the Wisconsin Constitution, see generally State v. McDonald, 144 Wis.2d 531, 536-37, 424 N.W.2d 411 (1988) (“This court has consistently recognized that a defendant has a constitutional as well as a statutory right to an appeal. Art. I, sec. 21, Wis. Const.; sec. 808.03(1), Stats.”).

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