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Waiver of Appeal — “Partial” No-Merit Report

State ex rel. Richard A. Ford (II) v. Holm, 2006 WI App 176, PFR filed 9/11/06; on appeal following remand in 2004 WI App 22 (“Ford I”)
For Ford: James R. Troupis
For Amicus: Joseph N. Ehmann, SPD, Madison Appellate

Issue/Holding: A client who has strategically foregone a potentially meritorious postconviction challenge is not entitled to the option of a “partial” no-merit report discussing remaining aspects of the case:

¶12 We conclude, after reviewing the Supreme Court’s analyses in Robbins, that Ford’s constitutional right to effective representation for the purpose of exercising his right to directly appeal his 1998 conviction did not require his postconviction counsel to offer him the option of a “partial no-merit” report on any potential issues remaining after Ford declined for strategic reasons to pursue an issue having arguable merit. The Supreme Court explained in Robbins that the U.S. Constitution requires only that “an indigent’s appeal will be resolved in a way that is related to the merit of that appeal,” Robbins, 528 U.S. at 276-77, and, further, that an indigent’s constitutional right is “to have an attorney, zealous for the indigent’s interests, evaluate his case and attempt to discern nonfrivolous arguments,” id. at 278 n.10. We are satisfied that the postconviction representation provided to Ford in this case met these standards.¶13 Finally, we note that competing professional considerations weighed against the filing of a no-merit report on the present facts. As the Supreme Court recognized in Robbins, an attorney may well have legitimate ethical qualms about filing a no-merit report under Wis. Stat. Rule809.32, even when such a report is clearly required by the rule. We conclude that it cannot therefore be a violation of “professional norms” to not file a no-merit report when one is not clearly required by the rule or by the Constitution.

Strong words—plus an intriguing footnote ¶11, n. 5) which encourages the SPD to seek a change to R. 809.32 “to reduce the apparent ‘ethical tensions’ created by the present procedure.” If, that is, the SPD, thinks such a need exists; the court hints at agreement but doesn’t reveal its hand. The background is, in brief, that Ford had been informed of a potential challenge to his guilty plea, but he declined to attempt plea withdrawal because of the risks. Counsel, then, couldn’t very well have filed a no-merit report, given that there was at least some merit to a postconviction challenge. The question thus became whether the client could split his claims, and demand that counsel file a no-merit report to the sentence but simply sweep the guilty plea under the rug. The answer is no.

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