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Waiver (of Appellate Counsel) — By Conduct

State ex rel. Perry Van Hout v. Endicott, 2006 WI App 196, PFR filed 10/11/06
For Van Hout: Robert R. Henak

Issue: Whether Van Hout waived his right to appellate counsel where he rejected counsel’s offer of a no-merit report and then, after having been warned of the dangers of proceeding pro se, chose neither to open an envelope containing information counsel’s motion to withdraw nor to respond to the court of appeals order granting the motion.


¶24      We do not think that we place too much emphasis on Van Hout’s directive not to file a no-merit report, his failure to open the envelope containing counsel’s motion to withdraw, and his failure to respond to the August 8 order granting [counsel]’s motion to withdraw. A defendant who has been informed of his or her options by counsel bears the burden to exercise one of those options and so inform counsel. Flores, 183 Wis. 2d at 618-19. A defendant cannot remain mute in the face of a request from counsel for direction or when his or her rights to appeal and to counsel are at stake. See id. at 619. A defendant must accept responsibility for remaining mute, particularly when that defendant has not exhibited any prior difficulty making his views known to counsel and the court.…

¶34      A defendant can waive the right to counsel by conduct. State v. Coleman, 2002 WI App 100, ¶16, 253 Wis. 2d 693, 644 N.W.2d 283. The right to counsel can be forfeited if a defendant’s conduct frustrates the orderly and efficient progression of the case. Id., ¶17. Van Hout was told he would not receive new counsel and he was advised of his options (proceed pro se or by retained counsel, no-merit report, or close the file). Had Van Hout responded to counsel’s motion to withdraw, he could have compelled counsel to file a no-merit report.[6] Van Hout’s correspondence with this court and counsel reveals a defendant who did not continue his engagement with the court and counsel about postconviction relief and representation and who, by his conduct, forfeited his right to counsel.

¶35      We hold that the undisputed facts show that by his conduct, Van Hout knowingly and intelligently waived his right to counsel after receiving the required information and warnings. Thereafter, Van Hout proceeded pro se, and he permitted his appeal rights to lapse by not acting within the time limits set by this court. The petition for a writ of habeas corpus is denied.

The court distinguishes federal cases finding non-waiver on the basis that in this instance counsel moved to withdraw, “thereby giving Van Hout an opportunity to respond to the motion,” ¶30.Thus, unlike those cases, “the record in this matter reveals that Van Hout was advised of his options and the no-merit procedure.” Van Hout, in brief, “never exercised the options repeatedly given to him,” id. The court also rejects Van Hout’s argument that when the defendant refuses both to authorize a no-merit and also to allow counsel to close his or her file, counsel must nonetheless file the no-merit report. ¶¶32-33, distinguishing Speights v. Frank, 361 F3d 962 (2004), stressing that “a key fact present here but not present in Speights [is that] Van Hout specifically forbade counsel from filing a no-merit report.” Counsel’s duty with respect to this demand is noteworthy and summarized as a separate issue. It’s worth keeping in mind that the rule now in existence, R. 809.32(2)(1)(b), on its face seemingly requires that counsel must file a no-merit report whether or not “authorized” to do so; a no-merit report is mandated if the defendant “does not consent to have the attorney close the file.” The rule was not worded similarly when Van Hout’s case arose; the court does not purport to discuss the current wording, let alone construe it. Whether the court’s holding in this case somehow affects implementation of the current rule—a recurrent issue for appellate counsel, to be sure—can’t be said with any certainty.This is at bottom a forfeiture case: Van Hout forfeited his right to counsel by his oppositional behavior; he tried to obstruct the process by refusing to read his mail and by breaking off a process that would have allowed him to air any grievances or questions or obtain the relief that he very belatedly seeks. Indeed, the court is explicit about forfeiture, ¶34. See also ¶36 (“a defendant, by actions designed to obfuscate and frustrate the judicial review process, can give up that right”). But the case is also about estoppel, a notion the court doesn’t expressly invoke but relies on all the same: Van Hout explicitly told counsel not to file a no-merit report, which set this litigation in motion; and now, much later, he says he does want one after all. It would have been preferable, perhaps, if the court had cast its analysis in those terms. It’s one thing to say counsel must abide by the client’s directive not to file a no-merit report (a controversial notion, to say the least, which will introduce much uncertainty into appellate representation), quite another to say that the client is estopped from making such an argument because it’s a complete about-face from his earlier position (not only a fairly mundane approach but also directly related to the forfeiture rationale the court ultimately settles on anyway). Note that the court gets around to this very estoppel-like rationale in its concluding ¶ (37), but only after its elaborate detour through the byways of client autonomy:

… a defendant cannot forbid appointed counsel from filing a no-merit report and then claim that counsel has abandoned him or her when counsel moves to withdraw from the representation. We will not allow a defendant to play games in order to get something that the defendant is not entitled to have or to engage in an endless go-round with this court over the course of postconviction proceedings. That is what is going on here, and we will not play that game.

That analysis is indeed one of estoppel, in all but name. The court probably could have skipped ¶¶23 through 33 and delivered a perfectly coherent decision with a more manageable holding.Lastly: the supreme court, in State ex rel. Flores v. State, 183 Wis. 2d 587, 516 N.W.2d 362 (1994), decisively rejected the idea of judicial involvement in taking waiver of post-conviction counsel. That result hasn’t gone down easily in some quarters of the court of appeals. The result in this case, whatever else might be said about it, represents a preference for judicial involvement. That doesn’t mean that you should move to withdraw as a routine matter, but this case seems to throw out a welcome mat for you if the occasion does arise that you do want judicial approval to withdraw.


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