401 N.W.2d 748 (Wis. 1987), 84-875, State v. Perry

Docket Nº:84-875-CR.
Citation:401 N.W.2d 748, 136 Wis.2d 92
Opinion Judge:The opinion of the court was delivered by: Heffernan
Party Name:STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Robert L. PERRY, Defendant-Appellant.
Attorney:For the plaintiff-respondent-petitioner the cause was argued by William L. Gansner, assistant attorney general, with whom on the briefs was Bronson C. La Follette, attorney general.
Case Date:March 06, 1987
Court:Supreme Court of Wisconsin

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401 N.W.2d 748 (Wis. 1987)

136 Wis.2d 92

STATE of Wisconsin, Plaintiff-Respondent-Petitioner,


Robert L. PERRY, Defendant-Appellant.

No. 84-875-CR.

Supreme Court of Wisconsin.

March 6, 1987

Opinion filed March 6, 1987.

Argued Oct. 29, 1987.

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[136 Wis.2d 94] William L. Gansner, Asst. Atty. Gen., argued, for plaintiff-respondent-petitioner; Bronson C. La Follette, Atty. Gen., on brief.

Mark A. Eisenberg, Madison, argued, for defendant-appellant; Eisenberg Law Offices, S.C. Madison, on brief.

HEFFERNAN, Chief Justice.

This is a review of a decision of the court of appeals 1 which reversed a judgment of the circuit court for Rock county, Edwin C. Dahlberg, Judge, and directed that Robert L. Perry (Perry) have a new trial because substantial portions of the trial transcript were missing. We affirm the decision of the court of appeals.

The facts are not in dispute. Perry was tried by a jury in Rock county and was convicted of burglary, robbery, and injury by conduct regardless of life in [136 Wis.2d 95] violation of secs. 943.10(1)(a), 943.32(1)(a), and 940.23, Stats. He was sentenced to a term of imprisonment. On his appeal to the court of appeals, in addition to objecting to the defective transcript, he claimed that he had been improperly ordered to be imprisoned for a term of ten years when in fact, under the oral sentence imposed by the trial judge, he was subject to but a total term of five years.

Because the court of appeals addressed only the alleged inadequacy of the

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transcript and found defendant's claim sufficient to warrant a new trial, it did not consider the sentencing issue raised in the defendant's appeal. Because we conclude that the question of which pronouncement of sentence is controlling, the oral sentence or the sentence appearing in the judgment, is one which is likely to recur, we address it, although, under the teachings of Neely v. State, 89 Wis.2d 755, 279 N.W.2d 255 (1979), Perry, as a party not aggrieved by the decision of the court of appeals, does not have the right to have an issue reviewed. We do so, however, in a subsequent portion of this opinion under the standards of State v. Wyss, 124 Wis.2d 681, 370 N.W.2d 745 (1985), which permit this court in its discretion to address all prior rulings to determine whether they are correct.

The initial issue, however, concerns the adequacy of the trial transcript for a meaningful appellate review.

Perry was convicted after an eight-day jury trial. Perry's trial took place on May 4-7 and 10-13, 1983. During the morning sessions on the final two days of trial, a substitute court reporter recorded the proceedings. This reporter moved to Manitowoc, but left the notes from Perry's trial in Rock county. When a trial transcript was ordered, the regular court reporter [136 Wis.2d 96] mailed the notes to the substitute reporter to transcribe. The notes were lost in the mail. When the postal service finally located them, they were incomplete and in a jumbled mess. When the notes were finally pieced together, significant portions of the transcript for those days were missing.

According to the trial court docket entries, the substitute reporter's notes should have contained the testimony of eleven defense witnesses, arguments on motions, the admission of exhibits, the prosecutor's closing argument, and the trial court's instructions on closing argument. Instead, the transcript from the notes that were found contains the complete testimony of four witnesses and the partial testimony of five other witnesses. The entire testimony of two witnesses is missing. Only fragmentary portions of the following were recovered: The argument on motions, discussion on stipulations, the in-chambers conference on exhibits, an offer of proof from a defense witness, the prosecutor's closing argument, and the instructions to the jury. In addition, the notes yielded several unidentified and random portions of the proceeding that could not be pieced together.

Perry brought a postconviction motion for a new trial, alleging several errors, including the allegation that deficiencies in the trial transcript effectively denied him the right to appeal his conviction. Judge Dahlberg denied Perry's motion, stating:

"THE COURT: Well, gentlemen, I am prepared to rule on the matter today. The Court presided over the trial. It was a nine-day trial. The portion of the transcript which was mailed by Ms. Smudde to Ms. Tatlock was lost in the mail and subsequently recovered in somewhat less than ideal fashion.


[136 Wis.2d 97] "I reviewed the transcript that has been prepared by Ms. Tatlock from her notes. It substantially covers all of the proceedings as I recall them. Certainly, with a little more work upon the transcript, it could be put in even more orderly form than the reporter now has it.

"I am satisfied that the transcript--albeit, it is not a perfect transcript--is a sufficient transcript to provide the appellate court with a basis of reviewing the entire record in the matter. And I so find at this time...."

At the time of this ruling, approximately one year had passed since trial. Perry appealed to the court of appeals. The court of appeals reversed the judgment of conviction. Because it reversed, it did not consider it necessary to resolve the sentencing question.

While the court of appeals concluded that the transcript was inadequate, we do not consider that determination a finding of fact or a determination by the court of appeals that there was an erroneous factual determination made by the trial court. Whether a transcript is sufficient

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under appropriate standards to serve its necessary purpose on appeal is ultimately a matter of law for the appellate courts. Moreover, the transcript being a "document," it may be evaluated as well by the appellate court, perhaps better than by the original tribunal. Delap v. Institute of America, Inc., 31 Wis.2d 507, 143 N.W.2d 476 (1966). Whether a transcript is sufficient may be determined by an appellate court ab initio. Moreover, the method by which a court at any level ought to make this determination is ultimately within the procedural and supervisory jurisdiction of this court.

[136 Wis.2d 98] Accordingly, we have accepted the court of appeals decision to examine the methodology by which a court may determine the adequacy of a transcript.

While the procedure by which the adequacy of a transcript for appeal purposes may well be addressed in general terms by rule, whether a particular transcript is sufficient for an appeal is dependent upon the nature of the case, the nature of the claim of error, the passage of time from the date a transcript originally was, or should have been, prepared, and whether the trial was to the court or to a jury.

As a matter of Wisconsin constitutional law, the right to an appeal is absolute: "Writs of error shall never be prohibited, and shall be issued by such courts as the legislature designates by law." Wisconsin Const., art. I, sec. 21(1). Since the reorganization of the Wisconsin court system in 1977, the court so designated is the court of appeals, which has initial appellate jurisdiction as set forth in Wis. Const., art. VII, sec. 5(3). The legislature has specifically stated, "A writ of error may be sought in the court of appeals." Sec. 808.02, Stats. Thus, the right of appeal to the court of appeals is constitutionally guaranteed in the State of Wisconsin.

The importance of a transcript is emphasized in this court's rules of appellate procedure, e.g., Rule 809.16(5):

"If a reporter fails to file timely a transcript, the court may declare a reporter ineligible to act as an official court reporter in any court proceeding and prohibit the reporter from performing any private reporting work until the overdue transcript is filed."

[136 Wis.2d 99] Supreme Court Rule 71.01 provides that all testimony in all courts of record shall be recorded verbatim, as shall be all opening statements and closing arguments when requested. Sentencing proceedings are also to be reported where the penalty may exceed a $500 fine or six months incarceration.

Thus, a thread runs through our entire jurisprudence that there not only be a right to appeal, but that the appeal be a meaningful one. In order that the right be meaningful, our law requires that a defendant be furnished a full transcript--or a functionally equivalent substitute that, in a criminal case, beyond a reasonable doubt, portrays in a way that is meaningful to the particular appeal exactly what happened in the course of trial.

Functionally, the appeal brought from the circuit court is the equivalent of the writ of error. Basic to a criminal appeal is the statement of the errors that an aggrieved defendant alleges were committed in the course of the trial and a showing that such errors (or error) were prejudicial. Any failure of the appellate process which prevents a putative appellant from demonstrating possible error constitutes a constitutional deprivation of the right to appeal.

The usual remedy where the transcript deficiency is such that there cannot be a meaningful appeal is reversal with directions that there be a new trial. Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964); Herron v. United States, 512 F.2d 439 (4th Cir.1975); Fowler v. United States, 310 F.2d 66 (5th Cir.1962); United States v. Taylor, 303 F.2d 165 (4th Cir.1962); United States v. Upshaw, 448 F.2d 1218, cert. den. 405 U.S. 934, 92 S.Ct. 970, 30 L.Ed.2d 810 (1972); Commonwealth v. Banks, 428 Pa. 571, 237 A.2d 339 (1968), dissenting opinion of Roberts, J., [136 Wis.2d 100] accepted by the Pennsylvania Supreme

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Court in Commonwealth v. Shields, 383...

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