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SCOW to decide whether laches deprives prisoner of right to appeal

State ex rel. Joshua M. Wren v. Reed Richardson, 2017AP880, review of an unpublished court of appeals order granted 5/14/19; case activity

Issue (from the petition for review):

Whether a criminal defendant who was denied a direct appeal and consequently was also deprived of counsel on appeal due to his trial counsel’s failure to file a notice of intent was properly denied habeas corpus relief based on the State’s assertion of a laches defense.

Here’s a disturbing case. The justice system–chiefly in the form of appointed trial counsel–plainly failed Mr. Wren, who was sentenced to 21 years in prison when he was just 16. But the state insists–and the court of appeals agreed–that the consequences of this failure must be borne by Mr. Wren alone.

This is a habeas corpus action to reinstate Mr. Wren’s direct-appeal rights; pursuant to State ex rel. Kyles v. Pollard, 2014 WI 38, 354 Wis. 2d 626, 847 N.W.2d 805, it was filed in the court of appeals, which remanded to the circuit court for factual findings.

That court found that Mr. Wren pleaded to one count of first-degree reckless homicide in 2006. The court imposed 21 years of initial confinement; substantially more than the PSI called for. Wren was unhappy with this sentence and immediately asked his trial lawyer to appeal; the lawyer told both Wren and his family not to worry, because he would appeal.

He did not appeal. Nor did he respond to multiple phone calls from Mr. Wren’s family over the next three years (he died in 2014). By 2010 or 2011 Mr. Wren had concluded the lawyer had abandoned him; he spent the next six years getting help from non-lawyers filing various postconviction proceedings. He didn’t seek reinstatement of his direct appeal because he didn’t know that was an option. When he did learn of this option, he filed this habeas corpus proceeding, arguing he’d been deprived of counsel on appeal altogether.

The state didn’t dispute that Mr. Wren had been denied his right to counsel. Instead it asserted the defense of laches. That defense has three elements: “(1) the petitioner unreasonably delayed in bringing the claim; (2) the State lacked knowledge that the claim would be brought; and (3) the State has been prejudiced by the delay.” State ex rel. Washington v. State, 2012 WI App 74, ¶17, 343 Wis.2d 434, 819 N.W.2d 305.

There’s no dispute about the second element. But the court of appeals found Mr. Wren had acted unreasonably by failing to alert the courts, in his previous filings, that he’d been abandoned by counsel. But, Mr. Wren points out, the circuit court found as fact that he wasn’t aware he could raise such a legal claim–and the reason he was unaware, of course, is that he had no lawyer to tell him. As to the third element, the state claims prejudice because of the trial attorney’s death (and the apparent unavailability of his file). But, as Mr. Wren asks, what difference could this make, given the factual finding that the lawyer simply didn’t carry out his clear obligation to file a notice of intent (or, indeed, to respond to persistent communications from Mr. Wren’s family)?

All in all, the state and the court of appeals have embraced some not-very-convincing justifications for denying this young man the modest relief he seeks: an appeal, with a lawyer. We’ll see what the supreme court makes of it.

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