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No-Merit Report: No Serial Litigation Bar Where Arguably Meritorious Issue Overlooked

State v. Ricky J. Fortier, 2006 WI App 11

Issue/Holding: Fortier’s failure to respond to no merit report does not, under the circumstances, work serial litigation bar to subsequent, arguably meritorious challenge to sentence:

¶15      Fortier contends that he should not be precluded from raising the issue of a sentence illegally raised upon resentencing, even though he failed to raise it in a response to the no-merit report at the time of the original appeal.  ……

¶23      In this case, it is, as mentioned, undisputed that Fortier was informed by his appellate counsel of his right to file a response to the no-merit report and that Fortier did not file a response. See Wis. Stat. Rule 809.32(1)(e). …

¶24      However, it is now evident that the issue of a sentence illegally increased at sentencing, which was eventually raised by Fortier in a motion to reduce sentence on October 1, 2004, is indeed an issue of arguable merit. The issue was hence overlooked not only by Fortier, but also by his appellate counsel, who filed the no-merit report addressing only the issue of erroneous exercise of sentencing discretion and concluding that no issues of arguable merit remained, and by this court, that agreed with the no-merit report.

¶27      … We therefore conclude that the no-merit procedures, under Anders and Wis. Stat. Rule 809.32, were not followed in this case, and agree that Fortier’s appellate counsel and this court should have identified the raised sentence at resentencing as an issue of arguable merit. See Tillman, 281 Wis. 2d 157, ¶20. Because we cannot fault Fortier for his reliance on his appellate counsel’s assertion in the no-merit report that there were no issues of arguable merit, we are satisfied that Fortier has shown a “sufficient reason” for failing to raise the issue in a response to the no-merit report. Wis. Stat. § 974.06(4); Escalona, 185 Wis. 2d at 181. Accordingly, Fortier is not procedurally barred from raising the issue of a sentence illegally raised.

OK, so now we know that when counsel and the court overlook an arguably meritorious issue, it’s not fair to use the no-merit procedure to establish a serial litigation bar. Fair enough. But that still makes this result fact-contingent. The court takes note of Wilkinson v. Cowan, 231 F.3d 347 (7th Cir. 2000) (clerk’s notification of right to file response to NMR doesn’t convey sense of obligation, thus failure to file response doesn’t amount to litigation bar), ¶¶22. But in a previous ruling, the court held that where the defendant indeed responds, Wilkinson is distinguishable and the bar applies, State v. Christopher G. Tillman, 2005 WI App 71, ¶20 n. 5. However, there is authority broadly establishing the idea that, at least with regard to an ineffective assistance claim, failure to raise such a claim in the response to the NMR establishes no bar, 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.”). Whether that logic would apply to any and all claims might be a nice question. About all that can be said with certainty is that if an arguably meritorious issue has been overlooked in the NMR appeal, it can nonetheless be raised later; and same for an IAC claim (on federal habeas, anyway).


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