State ex rel. Ford v. Holm

• Decision Date: 29 January 2004
• Docket Number: No. 02-1828-W.,02-1828-W.
• Citation: 676 N.W.2d 500,269 Wis.2d 810,2004 WI App 22
• Parties: STATE of Wisconsin EX REL. Richard A. FORD, Petitioner, v. Mike HOLM, Warden, Whiteville Correctional Facility, Respondent.
• Court: Wisconsin Court of Appeals

269 Wis.2d 810

2004 WI App 22

676 N.W.2d 500

STATE of Wisconsin EX REL. Richard A. FORD, Petitioner,¹ v. Mike HOLM, Warden, Whiteville Correctional Facility, Respondent.

No. 02-1828-W.

Court of Appeals of Wisconsin.

Oral argument July 23, 2003.

Decided January 29, 2004.

On behalf of the petitioner, the cause was submitted on the briefs of Richard A. Ford, pro se, and James R. Troupis and Steven P. Means of Michael, Best & Friedrich, LLP, Madison, with oral argument by James R. Troupis.

On behalf of the respondent, the cause was submitted on the briefs of Susan M. Crawford and James M. Freimuth, assistant attorneys general, and Peggy A. Lautenschlager, attorney general, with oral argument by James M. Freimuth.

A nonparty brief was filed by Patricia K. Flood, first assistant state public defender, and Marla J. Stephens, director, appellate division, for the office of the state public defender, with oral argument by Marla J. Stephens, Milwaukee.

Before Deininger, P.J., Dykman and Vergeront, JJ.

¶ 1. DEININGER, P.J.

This case presents a question that has surfaced with some frequency in motion and writ practice before this court: Must an attorney appointed to represent an indigent defendant in post-conviction proceedings move for court permission to withdraw from representation after the attorney concludes that his or her client has agreed to have the attorney "close the file" without filing a postconviction motion, appeal, or no-merit report? A closely related second question is whether appointed postconviction counsel renders ineffective assistance by failing to obtain court permission to withdraw or otherwise seek a judicial determination that the defendant has knowingly waived either the right to appeal or the right to counsel? We conclude that the answer to these questions is no and that, given the supreme court's express declination to so order in State ex rel. Flores v. State, 183 Wis. 2d 587, 622-23, 516 N.W.2d 362 (1994), it would be inappropriate for us to require withdrawal motions to be filed in every case such as this. However, because we also conclude that the record before us is insufficient to permit us to determine whether Ford knowingly waived either the right to counsel or to an appeal, we refer the matter to the circuit court for evidentiary proceedings on the question of waiver.

BACKGROUND

[1-3]

¶ 2. A person convicted in Wisconsin of committing a crime has a constitutionally guaranteed right to appeal his or her conviction to this court. WIS. CONST. art. I, § 21(1); State v. Perry, 136 Wis. 2d 92, 98, 401 N.W.2d 748 (1987). The right to an appeal includes the right that "the appeal be a meaningful one." Id. at 99. An indigent defendant is constitutionally entitled to the appointment of counsel at public expense for the purpose of prosecuting his or her "one and only appeal . . . as of right" from a criminal conviction. Douglas v. California, 372 U.S. 353, 357-58 (1963); State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 648, 579 N.W.2d 698 (1998).² The State Public Defender (SPD) contends, and no party disputes, that criminal defendants in Wisconsin also enjoy a state constitutional right to represent themselves on appeal if they knowingly and voluntarily make that choice and are competent to do so. It cites WIS. CONST. art. I, § 21(2), as the source of this right and our opinion in Hlavinka v. Blunt, Ellis, & Loewi, Inc., 174 Wis. 2d 381, 394-95, 497 N.W.2d 756 (Ct. App. 1993) as supporting it.

¶ 3. Before summarizing the background facts and procedural posture of this case, we briefly review the provisions for postconviction proceedings in criminal cases as presently set forth in the rules of appellate procedure. If a defendant wishes to pursue "postconviction relief," (i.e., "an appeal or a motion for postconviction relief," WIS. STAT. RULE 809.30(1)(c) (2001-02)³), his or her trial counsel must file a notice of the defendant's intent to do so within twenty days of sentencing. RULE 809.30(2)(a)-(b). If, as in this case, the defendant requests representation by the SPD, a series of deadlines are established for accomplishing the following: appointment of postconviction counsel by the SPD, preparation of transcripts and copies of the circuit court record, forwarding the same to the appointed postconviction counsel, and filing of a postconviction motion and/or notice of appeal. RULE 809.30(2)(c)-(k). This court may upon good cause shown enlarge the time periods set for accomplishing these steps, including the filing of a notice of appeal, and we may permit the actions "to be done after the expiration of the prescribed time." WIS. STAT. RULE 809.82(2)(a)-(b). [4-7]

¶ 4. After appointed postconviction counsel has reviewed the transcripts and record, he or she must confer with the defendant regarding the defendant's right to appeal, the potential merit or lack thereof in pursuing either a postconviction motion or appeal, and if applicable, the availability of the "no-merit option." See Flores, 183 Wis. 2d at 605-07; WIS. STAT. RULE 809.32(1)(b). The Judicial Council Note accompanying the 2001 revisions to WIS. STAT. RULE 809.30 includes the following explanation of appointed postconviction counsel's role and duties:

It is counsel's duty to decide what issues in a case have merit for an appeal. Jones v. Barnes, 463 U.S. 745 (1983). Postconviction counsel is entitled to exercise reasonable professional judgment in winnowing out even arguable issues in favor of others perceived to be stronger. Id . . . .

The rules of appellate procedure require that a defendant choose whether to proceed with the assistance of appointed counsel or proceed pro se. State v. Redmond, 203 Wis. 2d 13, 552 N.W.2d 115 (Ct. App. 1996)

. A defendant has neither the right to appointed counsel of choice nor the right to insist that a particular issue be raised. Oimen v. McCaughtry, 130 [F.3d] 809 (7th Cir. 1997). "The defendant may terminate appellate counsel's representation and proceed pro se or the defendant may allow postconviction relief to continue based on counsel's brief and then seek relief on the grounds of ineffective assistance of appellate counsel." State v. Debra A.E., 188 Wis. 2d 111, 137-39, 523 N.W.2d 727 (1994) . . . .

The state public defender will not appoint successor counsel where a defendant disagrees with the legal conclusions of appointed counsel or when a defendant wants a second opinion as to the merits of an appeal. To do so would unduly delay the disposition of the appeal, and would be contrary to the interests of justice. Wis. Admin. Code s. PD 2.04.

Judicial Council Notes—S.Ct. Order 00-02, § 36, WIS. STAT. ANN. RULE 809.30 (West Supp. July 2001).

¶ 5. If appointed counsel concludes that an appeal or motion for postconviction relief "would be frivolous and without any arguable merit," after counsel has explained the no-merit procedure under WIS. STAT. RULE 809.32, the client must choose from among three options:

a. To have the attorney file a no-merit report;

b. To have the attorney close the file without an appeal; or

c. To have the attorney close the file and to proceed without an attorney or with another attorney retained at the person's expense.

RULE 809.32(1)(b)1. Counsel must also inform the client that "a no-merit report will be filed if the person either requests a no-merit report or does not consent to have the attorney close the file without further representation by the attorney." RULE 809.32(1)(b)2.

¶ 6. We turn now to the background facts and procedural posture of the present writ proceeding.

¶ 7. Richard Ford pled no contest in 1998 to a charge of sexual assault and the Richland County Circuit Court sentenced him to twenty years imprisonment. He filed a notice of intent to seek postconviction relief, and the SPD appointed postconviction counsel for him. After reviewing the record, counsel spoke with Ford by phone and followed up the conversation with a letter to him. In the letter, counsel confirmed that Ford had "directed me to discontinue my representation of you" after obtaining an extension of time for Ford to file a pro se motion for sentence reduction. The letter also stated counsel's agreement with Ford's decision not to file an arguably meritorious plea withdrawal motion because of the potential for reinstatement of a dismissed charge that could result in exposing Ford to a longer sentence. Finally, counsel explained that he had declined to pursue a sentence reduction motion on Ford's behalf because counsel "saw no arguably meritorious grounds for such a motion."

¶ 8. We granted Ford's request for additional time to file for postconviction relief, noting in our order that Ford sought the extension "in order to proceed pro se on a motion to modify his sentence."⁴ Counsel has subsequently informed us that he "closed Mr. Ford's file" after obtaining Ford's consent to that action. Some three years later, Ford wrote to his former counsel asserting that he had disagreed with counsel's opinion that his case lacked arguable merit, and he requested a copy of the no-merit report Ford claimed counsel had agreed to file. Counsel responded to Ford that he did not file a no-merit report "because you did not direct me to do so. You directed me to close your file in this office, and I did so . . . ." In response to an inquiry from Ford, the clerk of this court informed him that nothing had been filed with this court following the order extending his time to file a postconviction motion in the circuit court.

¶ 9. Ford then filed a petition in this court for a writ of habeas corpus "pursuant to State v. Knight." See State v. Knight, 168 Wis. 2d 509, 522, 484 N.W.2d 540 (1992) (concluding that "to bring a claim of ineffective assistance of appellate counsel, a defendant must petition the appellate court that heard the appeal for a writ of habeas corpus").⁵ In his petition, Ford asserts that he "never requested [his appointed postconviction counsel] to close his...