State ex rel. McCoy v. Wisconsin Court of Appeals, Dist. I

Citation137 Wis.2d 90,403 N.W.2d 449
Decision Date09 April 1987
Docket NumberNo. 86-0172-W,86-0172-W
PartiesSTATE of Wisconsin ex rel. Ellis T. McCOY, Petitioner, v. WISCONSIN COURT OF APPEALS, DISTRICT I, Respondent.
CourtUnited States State Supreme Court of Wisconsin

Louis B. Butler, Jr., Asst. state public defender, on brief and orally, for petitioner.

James H. McDermott, Asst. Atty. Gen., argued, for respondent; Bronson C. LaFollette, Atty. Gen., on brief.

CECI, Justice.

In this original action for a declaratory judgment, we are called upon to consider the constitutionality of Section (Rule) 809.32(1), Stats. (1983-84), 1 which requires that appointed counsel, upon determining that a criminal appeal would be frivolous, submit a brief to the court of appeals which includes an explanation as to why any issues which might arguably support an appeal lack merit. Petitioner Louis B. Butler, the public defender in this case who was assigned to handle the appeal of defendant Ellis T. McCoy's criminal conviction, asserts that the defendant's constitutionally protected right to counsel, guaranteed by the sixth amendment to the United States Constitution and by art. 1, Section 7 of the Wisconsin Constitution, is violated by the so-called "no-merit brief" requirement. We disagree and now uphold the constitutionality of the rule contained in Section 809.32(1).

The facts in this case are not in dispute. The defendant was convicted in Milwaukee county circuit court on December 2, 1983, of one count of second-degree sexual assault, Section 940.225(2)(a), Stats., and of one count of abduction, Section 940.32(1). 2 In preparing for the appeal, petitioner concluded that further appellate proceedings were not warranted and that any issues which could be advanced in support of an appeal were without arguable merit under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and under Section 809.32(1). Defendant was then advised of his available options, which included (1) voluntarily dismissing the appeal, (2) proceeding with the appeal pro se, or (3) submitting a no-merit brief, pursuant to Section 809.32(1), to the appeals court. Defendant chose the no-merit brief option.

Prior to filing a no-merit brief, however, petitioner filed a motion in the appeals court, seeking to determine the constitutionality of Section 809.32(1) and to clarify the scope of representation on appeal. The motion was denied on September 7, 1984, on standing grounds, with the appeals court stating that since the no-merit brief had not yet been filed, no justiciable controversy existed.

Petitioner filed a no-merit brief on October 22, 1984. The appeals court, on April 16, 1985, ordered that this brief be struck for noncompliance with Section 809.32(1) and that a new brief be filed. Petitioner's brief complied with the requirements set forth in Section 809.32(1), except that it did not contain a statement of reasons why the issues which might arguably support an appeal lacked merit.

Counsel petitioned this court on April 24, 1985, for a supervisory writ of prohibition and declaration of relator's rights, seeking to resolve the constitutional issue. On May 8, 1985, this court denied the petition, on the grounds that petitioner had an adequate remedy at law in the court of appeals. Petitioner renewed his motion in the court of appeals to determine the constitutionality of Section 809.32(1), and the court again denied the motion, stating that any determination of the constitutionality of the no-merit rule should be made by this court. Thereafter, defense counsel renewed his petition to this court, which was granted on March 27, 1986.

Petitioner asserts that defendant's constitutionally guaranteed right to counsel, which includes the right to effective assistance of counsel, State v. Ludwig, 124 Wis.2d 600, 606, 369 N.W.2d 722 (1985); Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984), is violated by the no-merit requirement contained in Section 809.32(1). Petitioner cites the decision of the United States Supreme Court in Anders, which is explicitly referred to in Wisconsin's no-merit rule, as the primary source of support for this conclusion. We agree that Anders should be the touchstone of our analysis, although we do not believe that it compels a finding of unconstitutionality. We therefore begin our discussion of an attorney's responsibilities to a criminal client upon appeal with an analysis of Anders.

In Anders, defense counsel, after consulting with his client and studying the trial record, determined that further appellate proceedings on behalf of his indigent client would be meritless. He so notified the appeals court by letter 3 and requested to withdraw as counsel for the defendant. The Court in Anders did not believe that counsel's letter, articulating only a "bare conclusion" regarding the merits of defendant's appeal, satisfied constitutional requirements. 386 U.S. at 742, 87 S.Ct. at 1399.

The procedure followed by defense counsel in Anders, the high Court held, was constitutionally defective because it "did not furnish petitioner with counsel acting in the role of advocate," id. at 743, 87 S.Ct. at 1399, and "[t]he constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity." Id. at 744, 87 S.Ct. at 1400. The Court then explained what counsel's proper role on appeal should be:

"[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal." Id.

The utility of this procedure is that appointed counsel would not be

force[d] ... to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel. The no-merit letter, on the other hand, affords neither the client nor the court any aid. The former must shift entirely for himself while the court has only the cold record which it must review without the help of an advocate. Moreover, such handling would tend to protect counsel from the constantly increasing charge that he was ineffective and had not handled the case with that diligence to which an indigent defendant is entitled. This procedure will assure penniless defendants the same rights and opportunities on appeal--as nearly as is practicable--as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel. Id. at 745, 87 S.Ct. at 1400.

The Wisconsin procedure goes beyond Anders and requires that the attorney file a brief which, in addition to articulating anything in the record which might support an appeal, includes a statement indicating why the appeal lacks merit. It is this latter requirement to which the petitioner objects and on which we now focus.

Petitioner contends that the discussion requirement is directly contrary to the court's admonition in Anders that counsel on appeal is not to act as amicus curiae, but rather is obligated to act as advocate to the best of his or her ability. For support, petitioner additionally cites Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), which states that, citing Anders, appellate counsel "must play the role of an active advocate, rather than a mere friend of the court assisting in a detached evaluation of the appellant's claim." Id. at 394, 105 S.Ct. at 835. He asserts that when counsel is required to discuss the reasons why an appeal lacks merit, he or she is in effect abdicating the advocate's role and is instead arguing against the client. This, petitioner argues, is proscribed by Anders.

In addition, petitioner argues that a simple definitional approach compels a finding that if counsel is required to comply with the no-merit rule, he or she is no longer "advocating" appellant's cause. 4 When counsel files a no-merit brief which complies with the discussion requirement, petitioner argues, he or she is merely acting as amicus curiae, advancing a rationale which is more consistent with the views of the court than with the views and interests of defendant, counsel's client. 5

Petitioner then surveys cases from other jurisdictions which ostensibly support his position that appellate counsel must not deviate from the advocate's role and that the Wisconsin procedure is at odds with that principle. These cases, petitioner argues, demonstrate that counsel is not to play any part in determining the merits of the appeal. See, e.g., State v. Allen, 99 N.J.Super. 314, 322, 239 A.2d 675, 679 (1968), stating that "[o]nce a defendant exercises his right to appeal, his appellate counsel must be an advocate and he does not decide whether the claim will be successful as argued by the State.... That task is for the courts."

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9 cases
  • State ex rel. Flores v. State
    • United States
    • Wisconsin Supreme Court
    • 25 Mayo 1994
    ...is any merit to the appeal. See, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); St. ex rel. McCoy v. Appeals Ct., 137 Wis.2d 90, 403 N.W.2d 449 (1987); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). Accordingly, it fo......
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    • U.S. Supreme Court
    • 6 Junio 1988
    ...since his or her duty to his or her client is fulfilled once he or she has conducted a zealous review of the record. Pp. 440-444. 137 Wis.2d 90, 403 N.W.2d 449, affirmed. STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and SCALIA, JJ., joined.......
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    • U.S. District Court — Eastern District of Wisconsin
    • 18 Diciembre 1995
    ...a no merit brief on appeal does not automatically evince ineffective assistance of counsel. State ex rel. McCoy v. Wisconsin Court of Appeals, 137 Wis.2d 90, 97, 403 N.W.2d 449, 452 (1987). Moreover, Toliver has failed to demonstrate that but for counsel's unprofessional errors (and this Co......
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    • Wisconsin Court of Appeals
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    ...court subsequently issued its decision on these issues, holding that the rule and procedure are constitutional. McCoy, 137 Wis.2d 90, 91, 403 N.W.2d 449, 450 (1987). We have therefore now considered the no merit report filed in this case. Upon consideration of the report and an independent ......
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