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Defense win on postconviction procedure!

State v. Jeffrey S. Roehling, 2016AP35-CR, District 3, 10/3/17, (not recommended for publication), case activity (including briefs)

Haven’t seen defense win in awhile–especially not regarding postconviction procedure. The court of appeals first rejects the State’s contention that a defendant who fails to request an extension of the 60-day deadline for a circuit court to decide a postconviction motion forfeits his grounds for challenging the decision. Next it holds that Roehling’s posctconviction motion alleged facts sufficient to warrant a hearing on his ineffective assistance of counsel claim. That makes this decision a “win win.”

The State’s brief hints at a forfeiture argument, but doesn’t really develop it. The court of appeals highlights the State’s failure to cite legal authority and then proceeds to dismantle its argument:

¶12 . . . WISCONSIN STAT. RULE 809.30(2)(i) clearly indicates a postconviction motion is denied if not timely decided, but does not address this forfeiture issue.

¶13   Due to the apparent ambiguity, we look to the legislative purpose of the combined “deemed denied” and mandatory denial order provisions in WIS. STAT. RULE 809.30(2)(i).  See State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶48, 271 Wis. 2d 633, 681 N.W.2d 110.  A rule’s purpose may be readily apparent from its plain language, its context or the structure of the rule as a coherent whole.  See id., ¶49.  We conclude one purpose of these provisions is to protect convicted defendants from undue delay in the resolution of their postconviction motions.  That protection occurs from a relatively speedy, sixty-day determination of the motion by the circuit court, or—lacking such speedy determination—from mandated entry of a denial order so that the defendant can file an appeal.

¶13 [sic]Further, the rule specifies that “a party or the circuit court” may request an extension of the deadline.  WIS. STAT. RULE 809.30(2)(i).  Thus, it is apparent from the plain language of the rule that the onus to request an extension does not fall to the defendant alone.  Finally, a defendant may be unaware the court will not issue a decision within the time set by statute or extension.  In that event, it would be unreasonable to conclude a defendant forfeits the right to appeal the denial of a motion based upon the court’s failure to timely issue a decision and order.

The complaint charged Roehling with felony intimidation of a witness, and he pled guilty to it. Postconviction, Roehling moved to withdraw his plea on the grounds that his trial lawyer was ineffective for failing to challenge the sufficiency of the charge in the criminal complaint and failing to advise him that there was insufficient factual basis to support the charge. The circuit court denied the motion without a Machner hearing. The court of appeals reversed and remanded the case for a hearing:

¶22 We conclude Roehling’s motion states sufficient facts that, if true, would establish that he is entitled to relief. First, the complaint in the present case does not identify any prior felony—by case number, date or facts—much less allege that Roehling attempted to dissuade K.C. from attending a hearing in a felony case. Second, Roehling’s motion states that a fair reading of the complaint was that he was being charged with attempting to dissuade K.C. from attending the TRO hearing. See State v. Smaxwell, 2000 WI App 112, ¶5, 235 Wis. 2d 230, 612 N.W.2d 756 (“The test for determining the sufficiency of a complaint is common sense.”). Finally, as mentioned, Roehling’s motion states that his defense attorney failed to challenge the felony witness intimidation charge, and the attorney failed to advise Roehling there were insufficient facts to support the felony intimidation charge and conviction.


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