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“Anders” No-Merit Procedure (§ 809.32)

State v. Jeffery G. Sutton, 2012 WI 23, reversing summary order of court of appeals; for Sutton: Kaitlin A. Lamb, Colleen Ball, SPD, Milwaukee Appellate;  for amicus, WACDL: Robert R. Henak; case activity

Although presented with an unpreserved but seemingly meritorious issue (defective jury-waiver colloquy) on § 809.32 no-merit review, the court of appeals nonetheless accepted counsel’s no-merit report, thereby affirming Sutton’s conviction, and instructed him to seek relief pursuant to § 974.06 even though he was no longer in custody and the remedy was thus illusory. The supreme court now reverses that result, holding that the court of appeals should have rejected the no-merit report and reinstated Sutton’s  §  809.30 deadline.

¶7   We conclude that the court of appeals erred as a matter of law in ruling that the defendant had an avenue of relief through Wis. Stat. § 974.06.  The defendant could not pursue a § 974.06 motion, which is available only to “a prisoner in custody under sentence of a court or a person convicted and placed with a volunteers in probation program under s. 973.11.”[4]  The defendant fit neither of these categories.

¶8   The court of appeals’ error of law deprived the defendant of any opportunity for review of an on-its-face deficient jury trial waiver colloquy or the clear error by postconviction counsel in filing a defective postconviction motion. …

¶9   Because the court of appeals’ opinion and order was based on an error of law and had the unintended effect of denying the defendant any opportunity to be heard despite a colloquy that was deficient on its face and clear error by postconviction counsel, we reverse the opinion and order of the court of appeals and remand the matter to the court of appeals to reject the no-merit report, reinstate the defendant’s direct appeal rights, and remand the matter to the circuit court to allow counsel to file a new or amended motion for postconviction relief.  See Wis. Stat. §§ (Rules) 809.30, 809.32, 809.82(2).

¶48  In sum, the court of appeals did not intend to leave the defendant without a remedy. The court of appeals had discretion to remand the matter to the circuit court for the defendant to file a new motion, an amended motion or a motion for reconsideration, despite the fact that the defendant’s claim relating to the waiver of a jury trial was not properly preserved in the initial postconviction motion.[33]  The court of appeals chose not to so exercise its discretion, but the discretionary decision rested on a mistake of law.

¶49  The court of appeals’ error undermined its crucial assumption that the defendant would have some avenue available for possible relief.  The court of appeals’ opinion and order had the unintended effect of denying the defendant any opportunity to be heard despite a trial court colloquy deficient on its face and an error by postconviction counsel.

The court stresses that the outcome is premised on “three salient facts” establishing “the complex procedural posture” of the case: deficient jury-waiver colloquy; Sutton’s discharge from custody by the time he appealed; and, a defective postconviction motion, ¶¶3-6. Some elaboration: Sutton was convicted after bench trial. Postconviction counsel identified a potentially meritorious issue relating to validity of jury waiver and filed a § 809.30 motion for new trial. The trial court denied the motion solely because of a pleading defect in the motion papers. (Counsel inadvertently neglected to assert that Sutton was unaware of the right to unanimous verdict, State v. Grant, 230 Wis. 2d 90, 102, 601 N.W.2d 8 (Ct. App. 1999) (Grant ‘s“fail[ure] to allege that he was unaware of the jury unanimity requirement … is fatal to his postconviction claim.”) The court of appeals refused to extend the 809.30 motion deadline so counsel could file a corrected motion, leaving counsel in a quandary: she was sitting on a potentially meritorious issue but the record as constituted did not support a merits appeal. So she filed a § 809.32 no-merit appeal that for all practical purposes identified an arguably meritorious issue – jury waiver – that, although presently defective, was readily cured. The court of appeals nonetheless summarily affirmed, ruling simply that the trial court “properly denied the postconviction motion that was before it.” As seen, the court of appeals erred.

What makes the case unusual is the existence of an arguably meritorious but unpreserved issue. Surely, the court of appeals errs as matter of law when it fails to reject a no-merit report in the face of an apparent, preserved and potentially meritorious issue. (Nor is this an uncommon phenomenon: as reported in Sutton’s reply brief, in 2010 the court rejected 80 out of 638 no-merit reports, a 12% rate that probably isn’t significantly less than the reversal rate in merits appeals.) The kicker here is that the defective postconviction motion left the issue unpreserved. The supreme court might have said that whenever the court of appeals discerns a potentially meritorious issue in no-merit appeal it must reject counsel’s report, but the court did not go that far. Instead, it explicitly declined to state “a categorical holding that the court of appeals must reject a no-merit report when there is an issue that may once have been meritorious but has been forfeited, waived, or otherwise unpreserved,” ¶26 n. 17, discussing State v. Allen, 2010 WI 89, ¶88, 328 Wis. 2d 1, 786 N.W.2d 124. The court of appeals erred here not as a categorical matter but because, as noted, it wrongly thought Sutton could litigate the issue on collateral attack.

What if Sutton had been custody? The result in the court of appeals would have been OK? That could be one way of looking at it – otherwise, why make a fuss about the unavailability to Sutton of § 974.06? But that, in turn, seems to be a highly inefficient use of judicial (not to say, litigant) resources; the supreme court recognizes this dilemma and offers a way out: the court of appeals should have given much closer thought to allowing Sutton to cure the defect in his postconviction motion, when he requested extension of the motion deadline:

 ¶19  Reconsideration serves an important function pending appeal in obviating the need for an appeal and honing the issues and analysis.[10]  “The law gives a judge the right to change his or her mind, so long as it is done in a timely fashion and the parties are given a fair chance to be heard. . . . A judge should not have to live with the consequences of a decision that he or she, upon reflection, believes to be wrong.”[11]

¶20  On reconsideration, the court may have relied on Wis. Stat. § 802.09 by analogy to allow liberal amendment of the motion.  Section 802.09 provides that leave to amend pleadings “shall be freely given at any stage of the action when justice so requires.”[12]  Although a motion is not a pleading,[13] the § 802.09 directive to freely give leave to amend pleadings has been applied to § 974.06 motions.[14]

(The court may have received helpful guidance from Amicus, who argued much the same point, WCADL Br., pp. 6-7.) The court thus seems to be conveying a preference for resolution during direct-appeal proceedings, at least where there’s a easily curable error.

Principles worth mentioning, even if they’ve already been noted:

  •  Section 974.06 custody requirement. As noted above, § 974.06 requires custody (also see ¶43: “Since the defendant was not in custody, he could not use § 974.06”). It isn’t necessary to, nor does the court, go farther than the plain language of the statute, but the issue is long-settled by caselaw, e.g., State v. Theoharopoulos, 72 Wis.2d 327, 240 N.W.2d 635 (1976) (court “without jurisdiction” to entertain 974.06 motion brought by someone no longer in custody). Same holds true for habeas: the petitioner “must be restrained of his or her liberty,” ¶9 n. 5, quoting State ex rel. Fuentes v. Wisconsin Court of Appeals, 225 Wis. 2d 446, 451, 593 N.W.2d 48 (1999).
  • Jury waiver, ¶13. Waiver colloquy must show knowledge that “a 12-person jury would have to agree on all elements of the crime charged,” citing State v. Anderson, 2002 WI 7, ¶24, 249 Wis. 2d 586, 638 N.W.2d 301. But, as noted above, even where the colloquy is defective on this count, the defendant seeking to challenge waiver must formally allege lack of awareness of the right to unanimous verdict, ¶16, citing Grant.
  • No-merit procedure, ¶¶28-34. Useful summary by the court.
  • Reconsideration authority, ¶¶19-20. As noted, the court stresses the authority “to allow liberal amendment of” postconviction motions.
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