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 7th 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.