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Enlargement of NOI Deadline, Court of Appeals’ Authority / Factors to Consider

State v. Christine M. Quackenbush /  State v. Michael D. Lee, 2005 WI App 2
For Quackenbush: Tyler J. Tripp
For Lee: Thomas F. Locante, SPD, La Crosse Trial
For Amicus: Joseph N. Ehmann, SPD, Madison Appellate

Issue1: Whether, in light of State v. Iran D. Evans, 2004 WI 84, the court of appeals retains any authority under § 809.82 to extend the time for filing a notice of intent to pursue postconviction relief. Holding1:

¶9. On its face, Evans is concerned only with extensions of the time to file a postconviction motion, when the ground for the motion could be construed as ineffective assistance of appellate counsel. The question, then, is whether Evans should be extended to bar extensions of the time to file a notice of intent to pursue postconviction relief, when the ground for the motion could be construed as ineffective assistance of trial counsel. We conclude that it should not be, and therefore we decide these motions by using the “good cause” standard provided in Wis. Stat. Rule 809.82. Extending Evans to notices of intent is not supported by sound policy reasons and might have undesirable and unintended side effects.


¶11. In Evans, the supreme court noted that this court “’has a generally lenient policy about granting extensions that will enable a criminal defendant to prosecute an appeal.’” Evans, 273 Wis. 2d 192, ¶38 (citation omitted). We agree with this assessment, at least with respect to extensions sought within a limited period of time after the deadline for filing a notice of intent has passed. Although the court has not established firm guidelines for deciding extension motions, the judges of this court generally consider a number of factors in deciding whether to grant an extension. The longer the extension that is sought, the greater the showing that is generally required to satisfy us that there is good cause for granting it.…

¶14 Factors that we may consider in granting an extension for the filing of a notice of intent under Wis. Stat. Rule 809.82(2)(a) include the extent to which the delay appears to have been without fault of the defendant; the promptness of the defendant’s request for an extension; and the avoidance of a disproportionate expenditure of judicial resources to make factual findings regarding requests for relatively short extensions. When deciding extension requests, we also seek to screen out defendants who have simply changed their minds after experiencing confinement or after having their probation revoked, especially if a significant amount of time has elapsed since the conviction, and we consider the need of crime victims and the public for finality in criminal adjudications. These factors are not intended to be exhaustive, but merely to provide sense of the factors we consider when acting on extension requests.

¶15 Defendants who can establish that they were deprived of their statutory right to direct appellate review of their criminal convictions because of ineffective assistance of counsel are entitled to have their direct appeal rights reinstated, regardless of the presence or absence of other factors. …

¶17 … If counsel’s error in commencing the postconviction process causes deprivation of the entire process, prejudice is presumed. …

The message is clear enough: Evans didn’t really alter the postconviction landscape, except where appellate counsel screwed up. Given that trial counsel is responsible for filing the notice of intent, then, it ought to be the rare case in which the court of appeals lacks authority to extend the deadline. And although there appears to be something like a predisposition to grant extension in the routine case, the court is equally clear that the longer the delay the greater the likelihood of resistance. Results in the cases at hand: in one instance, a 3+-month extension is granted, because “the length of the extension sought is not unreasonable [and] counsel states that the delay is not attributable to the defendant,” ¶24; and in the other, a 1-day extension granted, given “an apparently good-faith admission of error by trial counsel” in filing the NOI, ¶25.

On the related if somewhat tangential issue of trial counsel’s constitutionally required duties with respect to filing the NOI, see generally Frazier v. South Carlina, 4th Cir No. 04-6500, 12/8/05 (decision as to whether to appeal is defendant’s so that if s/he specifically requests it, counsel must commence an appeal; and, where the defendant hasn’t specifically requested an appeal, counsel must ordinarily consult with the client on this decision).

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