State v. Pollard

Decision Date17 June 2014
Docket NumberNo. 2012AP378–W.,2012AP378–W.
Citation847 N.W.2d 805,354 Wis.2d 626,2014 WI 38
PartiesSTATE of Wisconsin ex rel. Lorenzo D. KYLES, Petitioner, v. William POLLARD, Warden, Respondent.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

For the petitioner, there were briefs by Robert R. Henak, Henak Law Office, S.C., Milwaukee, and Melinda A. Swartz, Law Office of Melinda A. Swartz, Milwaukee, and oral argument by Robert R. Henak.

For the respondent, the cause was argued by Aaron O'Neil, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

ANN WALSH BRADLEY, J.

¶ 1 Petitioner, Lorenzo Kyles, seeks review of an unpublished court of appeals decision that denied his petition for a writ of habeas corpus seeking to reinstate the deadline for him to file a notice of intent to pursue postconviction relief.1 The court of appeals determined that Kyles brought his petition in the wrong forum. Because the court viewed the claim as alleging ineffective assistance of post-conviction counsel, it concluded that Kyles should have filed his petition in the circuit court.

¶ 2 Kyles asserts that a petition for a writ of habeas corpus pursuant to State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992), filed in the court of appeals is the proper forum and process. He contends that the petition should be filed with the court of appeals because the circuit court does not have authority to grant the relief of extending the filing deadline which would reinstate his direct appeal rights. He further maintains that his habeas petition set forth sufficient facts to entitle him to an evidentiary hearing on his ineffective assistance of counsel claims.

¶ 3 We determine that the court where the alleged ineffective assistance of counsel occurred is the proper forum in which to seek relief unless that forum is unable to provide the relief necessary to address the ineffectiveness claim. The remedy for an attorney's failure to file a notice of intent to pursue postconviction relief is an extension of the timeframe to file the notice. Because the circuit court is without authority to extend the deadline to file a notice of intent to pursue postconviction relief, we conclude that the proper forum here lies in the court of appeals. We also determine that where such a claim is made to the court of appeals it should be in the form of a habeas petition pursuant to Knight.

¶ 4 We further conclude that Kyles' habeas petition set forth sufficient facts to entitle him to an evidentiary hearing on his ineffective assistance of counsel claims. Accordingly, we reverse the decision of the court of appeals and remand to the court of appeals to appoint a referee or refer the case to the circuit court for an evidentiary hearing. Wis. Stat. § 752.39 (2011–12).2

I

¶ 5 Although some of the facts are uncontested, Kyles' assertions set forth below that underlie his ineffective assistance of counsel claims have not yet been tested in any evidentiary hearing.3

¶ 6 Kyles pled guilty to one count of first-degree reckless homicide by use of a dangerous weapon and was sentenced in Milwaukee County on November 12, 2002, to 40 years imprisonment. On that day, after he was sentenced, Kyles met with his attorney, Thomas Flanagan, to discuss the sentence and his appeal rights.

¶ 7 Both Kyles and his attorney signed a “Notice of Right to Seek Postconviction Relief” form which explained that if Kyles wished to seek postconviction relief, he must file a notice of intent with the circuit court within 20 days of sentencing. Kyles checked a box on the form next to the statement that “I am undecided about seeking postconviction relief and I know I need to decide and tell my lawyer within 20 days.” Those 20 days were set to expire on December 2, 2002.

¶ 8 According to Kyles, later that day he called his mother and asked her to contact Flanagan and inform him that Kyles wished to appeal. Kyles further asserts that on November 15, 2002, he sent a letter to Flanagan's office to inform Flanagan that he wished to appeal and wanted Flanagan to file the notice of intent. Kyles did not keep a copy of the letter. An exhibit attached to Kyles' petition suggests that Flanagan disputes receiving the letter.

¶ 9 Kyles also asserts that he tried again to contact Flanagan about the notice of intent on November 18, 2002, but Flanagan's office refused to accept the call. When he was unable to reach Flanagan, Kyles called his mother to ask if she had informed Flanagan of his wish to appeal. His mother told him that she had been unable to reach Flanagan directly, but had left a message advising him that Kyles wanted to appeal. His mother called Flanagan “a couple of more times” but was unable to reach him. Kyles also attempted to speak with Flanagan on November 27 and December 2, 2002, but Flanagan's office either did not accept the collect calls or did not answer the telephone. The rejected calls are reflected in the telephone records from Waupun Correctional Institution.

¶ 10 Kyles states that he was not able to speak with Flanagan until January 24, 2003, after the deadline for filing the notice of intent had passed. When Kyles told Flanagan of his desire to appeal, Flanagan informed him that the time limits had expired and that because he entered a plea of guilty, there were few non-frivolous issues for appeal. Kyles alleges that Flanagan did not inform him that he could seek an extension of the deadline to file the notice of intent.

¶ 11 Thereafter, citing Knight, 168 Wis.2d 509, 484 N.W.2d 540, Kyles filed a pro se habeas corpus petition with the court of appeals seeking reinstatement of his direct appeal rights. He contended that he was denied his right to appellate counsel because his attorney did not file an appeal and appropriate postconviction paperwork. The court of appeals dismissed the petition. State ex rel. Kyles v. McCaughtry, No. 2003AP2760–W, unpublished slip op. (Ct.App. Jan. 28, 2004). It noted that a notice of intent had never been filed and thus, it construed Kyles' claim as an argument that he was denied his right to postconviction counsel. Id. Because the alleged error occurred before the circuit court, the court of appeals concluded that Kyles' claim should be raised in the circuit court as a petition for habeas corpus or a motion under Wis. Stat. § 974.06. Id.

¶ 12 In accordance with those instructions, Kyles filed a pro se habeas petition in the circuit court again seeking to have his direct appeal rights reinstated. The petition asserted that Kyles was denied effective assistance of counsel because he had written a letter to Flanagan about the 20 days for filing for postconviction relief and Flanagan never responded. The circuit court construed the petition as a motion for postconviction relief. Noting that the petition before it did not specifically allege that Kyles informed Flanagan that he wished to appeal, the circuit court concluded that Kyles failed to state a viable claim for relief and denied the petition. The court indicated, however, that if Kyles produced a copy of the letter he sent to Flanagan then it would reconsider its decision.

¶ 13 Kyles alleges that he did not have a copy of the letter and so did not submit it to the court. Instead, he appealed the denial of his motion. The court of appeals affirmed the circuit court, State v. Kyles, No.2004AP885, unpublished slip op. (Ct.App. Dec. 15, 2004), and this court denied Kyles' petition for review, State v. Kyles, No. 2004AP885, unpublished order (Feb. 9, 2005).

¶ 14 After attempts at obtaining relief in federal courts 4 were also unfruitful, Kyles filed a pro se motion with the court of appeals seeking to extend his deadline for filing notice of intent pursuant to Wis. Stat. § 809.82(2).5 The motion asserted that Kyles had been unable to get in touch with Flanagan during the 20–day period for filing the notice and Flanagan had not responded to his letter seeking assistance with filing the notice. The court of appeals denied the motion, concluding that Kyles had failed to show good cause for extending the deadline. State v. Kyles, No.2008XX1478–CR, unpublished slip op. (Ct.App. Jan. 16, 2009). It stated that the circuit court is the proper forum for developing factual matters and the circuit court had already determined that Kyles did not show he had instructed his attorney to file a notice of intent.

¶ 15 Kyles then filed another pro se habeas petition with the court of appeals. Again he sought an extension of his time to file a notice of intent, arguing that he was denied effective assistance of counsel when Flanagan was unavailable during the 20 days in which the notice needed to be filed, failed to file the notice of intent, and failed to file a motion to extend the filing deadline after he became aware Kyles wished to appeal. The court of appeals again denied Kyles' requests, concluding that claims for ineffective assistance of postconviction counsel must be brought in the circuit court. State ex rel. Kyles v. Pollard, No. 2012AP378–W, unpublished slip op. (Ct.App. May 9, 2012). It later denied Kyles' motion for reconsideration. State ex rel. Kyles v. Pollard, No. 2012AP378–W, unpublished order (Ct.App. June 14, 2012).

II

¶ 16 In this case we are asked to determine the appropriate forum and vehicle for relief for a defendant who asserts that the ineffectiveness of counsel resulted in a notice of intent to pursue postconviction relief not being filed. These are questions of law which we review independently of determinations rendered by the circuit court and court of appeals. State v. Badzinski, 2014 WI 6, ¶ 26, 352 Wis.2d 329, 843 N.W.2d 29.

¶ 17 Additionally, we are asked to determine whether Kyles' petition set forth sufficient facts to warrant an evidentiary hearing. This also presents a question of law which we review independently of the determinations rendered by the circuit court and court of appeals. State v. Balliette, 2011 WI 79, ¶ 18, 336 Wis.2d 358, ...

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