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SVP Commitments: Counsel – Effective Assistance, Appeal

State ex rel. Ruven Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, reconsideration denied2002 WI 12, reversing unpublished court of appeals order
For Seibert: Gregory P. Seibold; amicus brief: Howard B. Eisenberg, Dean, Marquette Law School

¶1. This case presents two issues. The first issue is whether an indigent sexually violent person, as defined by Wis. Stat. Chapter 980 (1999-2000), is constitutionally entitled to assistance of counsel in bringing his or her first appeal as of right from a denial of his or her petition for supervised release. Because due process and equal protection concerns are implicated, we rule that an indigent sexually violent person is constitutionally entitled to assistance of counsel in bringing a first appeal as of right from a denial of his or her petition for supervised release.

¶2. The second issue is whether there is ineffective assistance of counsel where appellate counsel filed an appeal from a petition for supervised release one day late. On the unique facts of this case, we find that there was ineffective assistance of counsel where the notice of appeal for the denial of the petition for supervised release was filed one day late in circuit court. Moreover, we find that under the United States Supreme Court’s decisions in Douglas v. California, 372 U.S. 353 (1963), Anders v. California, 386 U.S. 738 (1967), and their progeny, the court of appeals cannot conduct an independent review for error where the individual lacks requested representation, whether that representation encompasses briefing on the merits or an Anders brief. Accordingly, we remand Seibert’s cause to the court of appeals with instructions to appoint new appellate counsel who may submit either a brief on the merits or an Anders brief.

As the quote suggests, this is a straight-forward application of Anders to 980 appeals. Filing a late NOA is necessarily both deficient performance and presumptively prejudicial. (The record unequivocally establishes that Seibert instructed his attorney to file an appeal, so an evidentiary hearing on that question wasn’t necessary.) That 980 is civil doesn’t preclude assistance-of-counsel analysis, because equal protection and due process grant an indigent defendant the same procedural rights as a solvent one. ¶¶10-12. Of course, a 980 respondent isn’t a criminal defendant, and to draw parallels would highlight the incarcerative purpose of 980 litigation. Instead, the court merely alludes to § 980.05. (“An alleged sexually violent person, subject to commitment under Chapter 980, is not a criminal defendant. However, such a person has the same constitutional rights as a criminal defendant at trial.” ¶12, as amended on reconsideration.) Does this pronouncement conflict with a recent court of appeals’ observation that “(t)his section does not grant all constitutional rights available to a criminal defendant to an individual in a Wis. Stat. ch. 980 proceeding”?State v. Thiel, 2001 WI App 52, 241 Wis. 2d 439, 625 N.W.2d 321, ¶26.) Also worth noting: The court assumes that a no-merit report may be filed in a 980 appeal. (Though no real explanation is provided, the conclusion is undoubtedly correct despite at least one holding to the contrary, In re Matter of Leon G., ¶7 (Ariz. 2001), reaffirmed on remand from Supreme Court, In Matter of Leon G., ¶1 n. 1.) No-merit procedure applies only to direct appeals, but that includes post-judgment activity, such as this petition for supervised release. However, the civil (45-90 day) deadline applies, whether or not the appeal is no-merit. Seibert, ¶20 n.8 (“as the law currently stands, § 808.04 governs Chapter 980 appeals, and counsel for an individual committed under chapter 980 who wishes to appeal as a matter of right may either file a brief on the merits or an Anders brief.”).

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