On Point

State ex rel. Jarrad T. Panama v. Hepp, 2008 WI App 146
For Panama: Philip J. Brehm

Issue/Holding: Panama’s collateral attack on a sentence previously affirmed by no-merit appeal may be canalized into a “Knight” habeas petition, at least where the challenge is based on a potential defect apparent in the record.

The court continues to dredge up the terrain between direct appeal and collateral attack: Knight falls on one side, Rothering on the other. How do you know on which side to park? First, the background, briefly stated. The court of appeals affirmed Panama’s plea-based conviction and sentence in a prior, Rule 809.32 no-merit appeal. Subsequently, the same attorney who filed the no-merit report discerned a missed issue and filed this habeas, alleging that he was ineffective for overlooking the issue, which is as follows:

¶4        Panama entered a no-contest plea in accordance with a negotiated plea agreement. The plea agreement specified in relevant part, “There are no agreements as to sentencing but the State will be requesting prison left to the court’s discretion.” Although that provision appears to be an agreement by the prosecutor to refrain from commenting on the length of the sentence the court should impose, at the sentencing hearing, the prosecutor argued: “The pre-sentence report asks that you impose ten years in prison. I concur with that recommendation because of the nature of the offense damage that’s been done to the victim.” Panama’s counsel did not object to this comment and the trial court imposed the recommended ten-year sentence.

The defect both appears in the original record and is pretty glaring (which, among other things, means that the court of appeals should have seen it while ruling on the no-merit appeal). Thus, the AG doesn’t now argue that the DA could agree to hold to her tongue and then without consequence advocate a specific outcome; that would be frivolous. Instead, the AG resorts to the hypertechnical defense that Panama filed the wrong paperwork: he filed a Knight (habeas) petition in the court of appeals, when he should instead have a filed a Rothering (§ 974.06) postconviction motion. To make matters worse, relevant caselaw on this procedural aspect, as the court of appeals charitably concedes, “create(s) inconsistencies,” ¶21. State v. Knight, 168 Wis. 2d 509, 520, 484 N.W.2d 540 (1992) says a claim of ineffective assistance of appellate counsel must be pursued by habeas petition filed in the court of appeals, while State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996) says that a claim of ineffective assistance of postconviction counsel must be raised via § 974.06 motion in circuit court. The distinctions can be arbitrary and the procedure therefore a trap for the unwary, as the court presently appears to recognize.

¶25      In sum, the cases collectively create much confusion and delay. Common sense suggests that all claims of ineffective assistance of counsel, including appellate counsel, be initially addressed in the circuit court. This cannot be done, however, without overruling or modifying either Knight or Rothering, which this court cannot do.

But now add another layer of complexity due to the particular and somewhat unusual context, because this is a collateral attack on a Rule 809.32 no-merit affirmance. The court of appeals has previously grappled with this problem. In what appears to be the first meaningful such go-around, the court decided that the defendant’s failure to respond to the no-merit report waived his subsequent attack on the effectiveness of his trial attorney’s representation; it then fell to the 7^th Circuit to apply the law correctly, Emmanuel Page v. Frank, 343 F.3d 901 (7th Cir. 2003) (“It would be incongruous to maintain that Mr. Page has a Sixth Amendment right to counsel on direct appeal, but then to accept the proposition that he can waive such right by simply failing to assert it in his pro se response challenging his counsel’s Anders motion.”). The court next held that, at least where the defendant was raising an issue functionally identical to one affirmed by the prior no-merit appeal, the new challenge was procedurally barred, State v. Christopher G. Tillman, 2005 WI App 71, ¶24 (“Tillman’s current phrasing of his grievance in terms of double jeopardy and multiplicity is simply a resurrection of his prior arguments under new labels”). The last case in this trilogy, however, authorized a 974.06 attack on a sentence, notwithstanding a prior no-merit affirmance that failed to discuss that sentencing issue, in State v. Ricky J. Fortier, 2006 WI App 11.That’s the backdrop, legally and factually. Panama filed a “Knight” petition, and the State argues that he should have instead filed a § 974.06 Rothering motion, as required (or so the AG argues) by Fortier. The court rejects that contention, holding that Fortier didn’t explicitly discuss ineffective assistance of counsel, just whether there was “sufficient reason” for overcoming the 974.06 serial litigation bar, Panama, ¶16 (“In other words, Fortier is best understood as concluding that counsel’s failure to raise an arguably meritorious issue in a no-merit report is a ‘sufficient reason’ under Escalona-Naranjo for the defendant’s failure to raise the issue in a response, thus preventing the no-merit procedure from serving as a procedural bar in a subsequent § 974.06 motion, regardless of whether counsel’s failure met both the deficient performance and prejudice standards of an ineffective assistance claim.”).

The court goes on to say that the “Knight” petition properly raised the matter of the overlooked issue, albeit under an ineffective-assistance rationale:

¶27      As in so many cases that preceded this one, there are competing analyses which could be employed here. The fact that the plea breach issue was not preserved by a contemporaneous objection by trial counsel and that the arguably ineffective assistance of trial counsel was not preserved by postconviction counsel seems to place the case within the ambit of Rothering. In other words, because the claim is at its core an allegation that trial counsel failed to object to a plea agreement breach, the circuit court would seem in the best position to evaluate the issue. But unlike the direct appeal situation in Rothering, a no-merit proceeding also afforded appellate counsel the opportunity to explain why certain issues would lack arguable merit because they have been waived. Such discussion, in turn, would have provided this court with an opportunity to consider whether the waiver might be one which should be excused in the interests of justice, or whether there exists a viable claim of ineffective assistance of trial counsel. Therefore, in the no-merit context, there could be an argument that counsel provided ineffective assistance in both postconviction and appellate contexts by failing to preserve an issue, and then failing to bring the waived issue to this court’s attention. As to the failure in the no-merit context, this court is in the best position to evaluate the ineffective assistance challenge. We conclude that the deciding factor here is that the defendant is seeking, inter alia, to overturn this court’s no-merit decision and reinstate all of his postconviction rights. Under Knight, a writ of habeas corpus to this court is still the proper mechanism for seeking that relief.¶28      Under Machner, however, we cannot resolve the present Knight petition until there has been a postconviction hearing at which factual findings are made regarding: (1) whether the plea agreement in fact required the State to refrain from recommending any particular length of prison time; and (2) whether trial counsel had any strategic reason for failing to object to the prosecutor’s recommendation of ten years in prison.

Presumably, then, Panama might have litigated this under a Fortier-type § 974.06 motion. (The court certainly doesn’t suggest otherwise; it does not, for example, purport to distinguish Fortier nor does it have the authority to overrule it.) Apparently, then, the court is saying that a “Knight” petition is a permissible, not exclusive, remedy – fine, but there’s nonetheless a certain amount of question-begging involved. As ¶¶27-28 suggest, the theory is that litigation of the no-merit report violated Panama’s right to effective assistance of counsel. This approach, however, is flawed at the conceptual level. A no-merit report is, in essence, a motion to withdraw as counsel; the court must conduct its own, independent scrutiny of the record to determine whether it will grant the motion. It is true that counsel in this instance should have instantly perceived the issue. But recall that the issue was quite apparent in the record, so that the court should have discerned it. “Should have,” in any event, if it had properly discharged its own duty to make an independent determination of the existence of any arguable issue appearing in the record. The court thus erred in its own right, and its failure to carry out its mandated duty is a “sufficient reason,” to the extent one is necessary, to ignore the serial litigation bar. In other words, Fortier would have provided all the ammunition Panama needed for a 974.06 motion (as opposed to a habeas). Under a Knight habeas, the defendant-petitioner has the additional burden of showing that appellate counsel was ineffective. (Recall the court’s acknowledgement, ¶16, that Fortier did not rest on an IAC claim.) Won’t be a problem in this case, seemingly, but why take on that extra burden if you don’t have to? On the other hand, there are certainly advantages flowing from a successful Knight petition. Reinstatement of 809.30, direct-appeal rights, which would of course lead to plenary review of any and all potential issues, for one; reinstating the deadline for a 2254 habeas (though this is a highly technical area and the practitioner must proceed with great caution). Contrastingly, a Rothering motion is limited to the issue(s) raised by the motion (which have to be constitutional or jurisdictional by definition), and the circuit court lacks authority to reinstate the direct appeal. So, there are potentially complex tactical considerations at the very outset.

State v. Elizabeth A. White, 2008 WI App 96
For White: T Christopher Kelly

Issue/Holding:

¶8        To prevail on a motion for reconsideration, a party must either present newly discovered evidence or establish a manifest error of law or fact. Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI App 129, ¶44, 275 Wis. 2d 397, 685 N.W.2d 853. A manifest error of law occurs when the circuit court disregards, misapplies, or fails to recognize controlling precedent. Id.¶9        We review a circuit court’s denial of a motion for reconsideration to determine if the court properly exercised its discretion. Id., ¶6. A circuit court erroneously exercises its discretion if that exercise is based on an error of law,State v. Davis, 2001 WI 136, ¶28, 248 Wis. 2d 986, 637 N.W.2d 62, and we review questions of law de novo. See State v. Kramer, 2001 WI 132, ¶17, 248 Wis. 2d 1009, 637 N.W.2d 35. The issue of the correct legal standard presents a question of law. Id. Thus we review de novo whether the court’s denial of the motion for reconsideration was based on an error of law in that it did not apply controlling precedent.

State v. Audrey A. Edmunds , 2008 WI App 33; prior history: State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999), habeas relief denied, Edmunds v. Deppisch, 313 F.3d 997 (7th Cir. 2002)
For Edmunds: Keith A. Findley, UW Law School

Issue/Holding: Presentation of expert testimony to establish, under a theory of newly discovered evidence, a recent revision in symptomatology of shaken baby syndrome isn’t procedurally barred notwithstanding a previous such effort:

¶11      The problem with the State’s argument is that the evidence offered in Edmunds’s current postconviction motion is entirely different in character from the evidence offered in her 1997 postconviction motion. …¶12      In her 1997 motion, Edmunds argued that the medical testimony she offered was newly discovered because defense counsel had not located the experts, who were from out of state, to provide a minority opinion that challenged the majority opinion expressed by the State’s witnesses at trial. The defense experts in the 1997 motion would have offered the existing theories in the medical community, disavowed by the mainstream, that shaking alone could not cause fatal injuries, that a previous brain injury can spontaneously re-bleed, and that an infant can experience a head trauma and have a significant lucid interval. In contrast, the defense experts who testified for the 2006 postconviction motion explained that in the past ten years, a shift has occurred in the medical community around shaken baby syndrome, so that now the fringe views posited in 1997 are recognized as legitimate and part of a significant debate. They explained that there has been significant development in research and literature that challenges the medical opinions presented at Edmunds’s trial. Thus, the State’s argument that this motion is the same as Edmunds’s 1997 motion, or that Edmunds could have raised her current arguments in her appeal from the circuit court’s 1997 decision, are unavailing. We turn, then, to the merits of Edmunds’s appeal.

State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08
For Champlain: Martha K. Askins, SPD, Madison Appellate

Issue/Holding:

¶15      The State first argues that Champlain has waived the armband issue. The State contends that Champlain cannot not be heard to complain about the jury seeing the armband device when he himself declined Strand’s offer of a long-sleeved shirt before he was brought into the courtroom for his trial.

¶16      However, waiver is the intentional relinquishment of a known right. State v. Matson, 2003 WI App 253, ¶41, 268 Wis. 2d 725, 674 N.W.2d 51. We indulge in every reasonable presumption against waiver of a constitutional right. See State v. Baker , 169 Wis. 2d 49, 76, 485 N.W.2d 237 (1992).  In this case, at virtually the last minute before entering the courtroom, Strand informed Champlain he had to wear the Band-It. This event occurred outside the courtroom setting and thus was not captured or preserved on the record. Nor was it memorialized by any other method. Generally, waiver will not be presumed from a silent record. See id. We are not prepared to hold that by opting to wear his own clothing instead of something from jail storage, Champlain should be held to have appreciated and weighed the legal implications of declining Strand’s offer. In short, the record does not show that Champlain intentionally relinquished a known right. ^[8] Matson, 268 Wis.  2d 725, ¶41.

State v. Jeremy T. Greene, 2008 WI App 100, PFR filed 7/14/08
For Greene: Kristen D. Schipper

Issue: Whether the sentencing court may order that DOC distribute “gifted” (as opposed to wage-based) funds in a prisoner’s account to satisfy a restitution obligation.

Holding:

¶12      We observe that Wis. Stat. § 973.20 does not limit the consideration of a defendant’s ability to pay out of funds derived from only earnings or wages. In interpreting the restitution statute, we construe its provisions “broadly and liberally in order to allow victims to recover their losses as a result of a defendant’s criminal conduct.” State v. Anderson, 215 Wis. 2d 673, 682, 573 N.W.2d 872 (Ct. App. 1997). Applying this interpretative principle we conclude that “financial resources” refers to all financial resources available to the defendant at the time of the restitution order, including gifted funds, except where otherwise provided by law.  ^[6] Because a circuit court may consider all sources of funds held by a defendant in determining the amount of restitution, it follows that a court may also order a defendant to pay restitution out of all funds held or available to a defendant, including gifted funds. We therefore conclude that, under § 973.20, a circuit court has the authority to order a defendant to pay restitution from all of his or her “financial resources,” including gifted funds, available at the time of the restitution order and as funds become available to the defendant at a later time.

The trial court’s reliance on Wis. Admin. Code § DOC 309.49(4)(e) (DOC may disburse prisoner’s funds to satisfy “claims reduced to judgment”) is rejected, because this code provision doesn’t address the circuit’s court authority to issue the order in the first place (¶10). The court also embellishes State v. Troy B. Baker, 2001 WI App 100, ¶17 (trial court has authority under § 303.01(8)(b) to order disbursement of restitution from prison wages), suggesting that its  invocation of § 303.01(8)(b) rather than § 973.20 was misplaced (¶9 n. 3); nonetheless, Baker “was correctly decided.” The court also stresses “the strong equitable policy underlying” § 973.20, namely “to compensate the victim.” Obviously, then, the statute is construed broadly rather than narrowly.

State v. Jeremy T. Greene, 2008 WI App 100, PFR filed 7/14/08
For Greene: Kristen D. Schipper

Issue/Holding: Restitution order amendment, directing DOC to disburse funds from the prisoner’s account, did not violate double jeopardy although the amendment occurred three years after the original order:

¶16      Greene’s double jeopardy argument focuses on the fact that DOC, in applying the original restitution order, did not distribute funds from his accounts to pay restitution in the three years prior to the entry of the amended restitution order. Greene argues that after three years of not paying restitution he had a legitimate expectation of finality in the original restitution order, and that the subsequent amended order, which directed DOC to start paying restitution from Greene’s prison accounts, violated double jeopardy principles.

…

¶18      We conclude that the amended restitution order in this case did not violate Greene’s double jeopardy rights. The amended restitution order merely clarified the original order, which was arguably ambiguous on the issue of when payment of restitution would occur. The original restitution order was made during the court’s oral sentencing decision and occurred immediately after the court discussed the conditions of extended supervision imposed on Greene. The timing of the court’s oral restitution order could be reasonably understood as either falling under the conditions for extended supervision or as part of the overall sentencing order. Once the ambiguity was brought to the court’s attention, the court clarified its intent that restitution be paid while Greene was in prison and, if not fully satisfied, after he left prison under terms to be established by his supervising agent. The amended order for restitution reflected this clarification. The amended restitution order did not alter the restitution amount or any other term set forth in the original order. The amended order therefore did not dash any expectation of finality that Greene reasonably had in the original restitution order.

The sentencing court set the amount of restitution, but didn’t expressly direct that payments be taken from the prisoner’s account; as a result, DOC determined that it could not draw restitution payments until release on ES. When brought to the circuit court’s attention three years later, the court amended the restitution order to direct that payments be taken from the prison account. And here we are. The double jeopardy clause offers at least some protection against increased restitution, State v. Scott Edward Ziegler, 2005 WI App 69 (determining amount of restitution 14 years after an initial, “to be determined” order, violated DJ). The court distinguishes that case (¶¶18-19), on the ground that the amendment here merely clarified the original order. (In brief: Greene’s restitution amount, unlike Ziegler’s, was properly set originally, so all the amendment did was clarify when and how it was to be discharged; Ziegler’s amount had not been set, and at some point – the court didn’t quite say when – he acquired an “expectation of finality” in the status quo, which was: no amount set.)

Lastly, the court rejects the related claim that the amendment violated DJ because it worked an increase in the sentence (¶20). Given the construction that the amendment merely clarified the original order, this last point was a foregone conclusion. But that shouldn’t obscure the deeper, structural problem, which is the notion that restitution is not “punishment” but is instead a collateral consequence of conviction, e.g., State v. Anthony A. Parker, 2001 WI App 111¸ ¶9. What this means, then, apart from outliers such as Ziegler, is that DJ challenges to restitution face an uphill struggle.

State v. William Agosto, 2008 WI App 149, PFR filed 10/21/08
For Agosto: Andrea Taylor Cornwall, SPD, Milwaukee Appellate

Issue/Holding: The defendant’s mother, who posted subsequently-forfeited cash bail, is a “victim” for restitution purposes:

¶8        …

• Agosto committed the “crime” of bail-jumping. He pled guilty and the circuit court entered a judgment convicting him of that crime.
• As a result of that crime, Agosto’s mother lost $50,000, and she lost it by the artifice of her son’s false promise to comply with the conditions of his bond as surely as if he had taken the $50,000 from her by force.
• Thus, Agosto’s mother was the “victim” of his having committed the crime of bail-jumping. See State v. Galli, 967 P.2d 930, 937–938 (Utah 1998) (If the defendant had either pled guilty to or admitted to violating the conditions of his bail, he would have been subject to a restitution order directing him to reimburse the person who posted the bail that was forfeited as a result of the violations.).

¶9        As applicable here, a circuit court may impose a restitution order as part of a sentence if the following is true:

• the beneficiary of the restitution order is “[a] person against whom a crime has been committed” (so as to be a “victim”); and
• the beneficiary of the restitution order is a victim of a crime that is “considered at sentencing.” He or she need not be a victim of the crimes for the sentence imposed (here, sexual assault and interference with child custody).

Both of these requisite elements are present here.

An expansive definition of “victim,” but that’s nothing new. One thing to note: even if not forfeited, bail upon defendant’s conviction must be disbursed toward restitution and costs, § 969.03(4). Is Agosto entitled to reduction of the bail-jumping restitution by the amounts that would have been taken from bail even absent his bail-jumping? Not discussed by the court. Too bad, not just because you then have to wonder not just about how the amount of restitution was calculated but also about the court’s rationale altogether, which is pretty much limited to analogizing the bail-obligor to a robbery victim (¶8). Just how strong is the analogy? Not too many robbery victims sign contracts agreeing ahead of time to the loss of property taken during a robbery. Agosto’s mother wasn’t tricked into signing the bond agreement. She may have hoped her dutiful son wouldn’t violate; she may have held him to an unrealistic standard of decent behavior; his abuse of her touching faith might have been the stuff of day-time tv; but nothing in the opinion suggests she was tricked into putting herself at his mercy. (So much, too, for the notion of the lad’s artifice.) She likely believed there was no risk (what economists like to call a “moral hazard”), but she wasn’t misled: she merely assumed that filial love was equal to maternal devotion, such that no risk accrued to her money. And that also gets back to the original point, that she well-knew, from the plain terms of the agreement, that something would be deducted; she knew in other words, that at a minimum she wasn’t going to get it all back. It wasn’t a “moral hazard” after all (or maybe it was, but in a lay, not technical, sense). In for a penny, in for a dollar. Briefly put, although it might well be that she ought to be considered a “victim” for restitution purposes, the court of appeals’ reasoning doesn’t support that idea.

The original restitution order, by the way, was 50k, reduced later to 12k, a still-substantial amount. At just what point does restitution become punitive (which isn’t to say, off-limits but rather, similar to a fine, a “direct” consequence of a conviction)? And, similarly, when does a restitution order trigger the right to jury? Never, in the current view of the courts. But perhaps thought should be given to at least raising the problem.

The court, incidentally, not content merely to expand the definition of victim under the restitution statute, proceeds to similarly expand the court’s authority to enter a similar order for purposes of extended supervision, ¶9.