State ex rel. Van Hout v. Endicott

• Decision Date: 13 September 2006
• Docket Number: No. 2004AP1192-W.,2004AP1192-W.
• Parties: STATE of Wisconsin ex rel. Perry VAN HOUT, Petitioner,<SMALL><SUP>†</SUP></SMALL> v. Jeffrey ENDICOTT, Warden, and Redgranite Correctional Institution, Respondents.
• Court: Wisconsin Court of Appeals

724 N.W.2d 692

2006 WI App 196

STATE of Wisconsin ex rel. Perry VAN HOUT, Petitioner,^† v. Jeffrey ENDICOTT, Warden, and Redgranite Correctional Institution, Respondents.

No. 2004AP1192-W.

Court of Appeals of Wisconsin.

Submitted on Petition August 24, 2006.

Opinion Filed September 13, 2006.

On behalf of the petitioner, the cause was submitted on the petition of Robert R. Henak of Henak Law Office, S.C., Milwaukee.

On behalf of the respondents, a response was submitted by James M. Freimuth, assistant attorney general, and Peggy A. Lautenschlager, attorney general; and Kenneth R. Kratz, district attorney, Chilton.

Before SNYDER, P.J., BROWN and ANDERSON, JJ.

¶ 1 PER CURIAM.

Perry Van Hout, by counsel, petitions for a writ of habeas corpus under State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992). Van Hout contends that he was deprived of an appeal by his appointed appellate counsel's actions and this court's decision to permit appointed appellate counsel to withdraw. Van Hout seeks reinstatement of his WIS. STAT. RULE 809.30 (1995-96)¹ appeal rights from a 1995 conviction. Van Hout's petition is properly filed in this court. State ex rel. Smalley v. Morgan, 211 Wis.2d 795, 798-99, 565 N.W.2d 805 (Ct.App.1997), criticized on other grounds by State ex rel. Coleman v. McCaughtry, 2006 WI 49, ¶ 29, 290 Wis.2d 352, 714 N.W.2d 900. We ordered a response to the petition from the respondents, and Van Hout filed a reply to the response.

¶ 2 Van Hout argues that an evidentiary hearing is neither necessary nor appropriate because all the relevant facts are in the record as undisputed attachments to the petition, and we are as competent to interpret them as the circuit court. Van Hout also argues that there are not any reasonable disputes over the relevant facts. The respondents suggest that fact finding might be necessary. We agree with Van Hout, and we decide this petition based upon the documents before this court.²

¶ 3 We hold that on the undisputed facts, Van Hout, by his conduct, knowingly and intelligently waived his right to counsel on direct appeal from his 1995 conviction after he received the required information about his postconviction options and warnings about proceeding pro se. Under the facts of this case, appointed counsel did not perform deficiently in moving to withdraw from the representation. Van Hout later permitted his appeal rights to lapse. We decline to reinstate the appeal rights.

¶ 4 These are the undisputed facts gleaned from the documents before this court. In 1995, Van Hout pled guilty to two counts of sexual contact with a child under thirteen and received an eighty-year sentence. The state public defender appointed Margaret Maroney to represent Van Hout on appeal. Maroney moved the court for extensions of time to act under WIS. STAT. RULE 809.30 because she and Van Hout disagreed about the case: she concluded that the case lacked arguable merit for an appeal; Van Hout wanted an advocacy brief. In a May 17, 1996 order extending the time to commence postconviction proceedings, we told Van Hout that if he discharged counsel, he would be responsible for complying with the rules of appellate procedure and determining how to proceed and that it was unlikely new counsel would be appointed if he later decided that it was a mistake to discharge counsel. We also described the WIS. STAT. RULE 809.32 no-merit appeal procedure and our role in such an appeal.

¶ 5 Van Hout then filed a grievance against Maroney and asked for new counsel. In a June 6, 1996 letter to counsel, Van Hout stated, "I do not want you to file a [WIS. STAT. RULE 809.32] no-merit report in my behalf." In a June 19, 1996 order, we held that Van Hout's complaints about counsel and his disagreement with her about how to proceed on appeal were not sufficient grounds to disagree counsel and appoint new counsel. We told him that counsel could file a RULE 809.32 no-merit report. Because Van Hout did not state that he wanted to proceed pro se, we stated that counsel remained of record, and we extended the postconviction deadlines.

¶ 6 On July 29, 1996, we received Maroney's motion to withdraw. Maroney stated that she had explained Van Hout's options to him (no-merit report, proceed pro se or by retained counsel, or close the file without a no-merit report), and Van Hout had declined a no-merit report. Van Hout did not respond to the motion to withdraw, and we later learned that he had declined to accept delivery of the envelope containing counsel's motion to withdraw.

¶ 7 In an August 8, 1996 order granting counsel's motion to withdraw, we concluded that counsel discharged her obligation to Van Hout by informing him of his options, but Van Hout declined to exercise any of those options. Van Hout did not respond to our June 19 order declining to give him new counsel, and he did not respond to counsel's motion to withdraw. Counsel lacked direction on how to proceed because Van Hout had earlier directed her not to file a no-merit report. We concluded that Van Hout's failure to object to the motion to withdraw was a concession that he wanted counsel to withdraw and that he would proceed pro se.

¶ 8 In March 1997, Van Hout moved this court pro se to reinstate his appeal rights because Maroney had an extension of time to act and did not do so. Van Hout claimed that he had been suffering from extreme depression and could not, from June 1995 to March 1997, act on his own behalf.³ Van Hout was reluctant to release counsel, but he could not convince counsel that his appellate issues had merit. Van Hout was not satisfied with his options or with counsel's assistance, but he did not want counsel relieved unless he received new counsel. Van Hout conceded that he did not read counsel's motion to withdraw, but claimed that he did not intentionally choose to proceed pro se.

¶ 9 In a March 25, 1997 order, we denied Van Hout's motion to reinstate his appeal rights because he did not meet the deadlines set in our August 8 order granting counsel's motion to withdraw. Van Hout did not show good cause for an extension of the appeal period because he did not show that he was wholly unable to communicate with this court from the time counsel's motion to withdraw was granted (August 1996) until his pro se extension motion (March 1997). The supreme court denied a petition for review of this order.

¶ 10 In April 2000, Van Hout filed a lengthy pro se Knight petition alleging that Maroney was ineffective and abandoned him, thereby denying him counsel and an appeal. Van Hout sought reinstatement of his appeal rights. Van Hout claimed that we should have required counsel to file a no-merit report even though Van Hout stated he did not want one, and we should not have permitted Maroney to withdraw until we determined whether Van Hout could proceed pro se and whether he intended to waive his right to counsel on appeal. Van Hout claimed that he was not competent to proceed pro se, and we should have appointed new counsel.

¶ 11 In a May 19, 2000 order, we denied Van Hout's pro se Knight petition. We reviewed the history of Van Hout's disagreements with his counsel: counsel explained Van Hout's options to him, we denied Van Hout new counsel and directed Van Hout to decide how to proceed, and we thereafter granted counsel's motion to withdraw, noting that Van Hout had not responded to orders from this court asking him to exercise one of his options. Because Van Hout acted in contravention of his counsel's advice that she file a no-merit report, he could not complain that counsel was ineffective for failing to file the no-merit report. Once counsel withdrew, it was up to Van Hout to pursue an appeal. He did not do so. We denied the pro se habeas petition, and the supreme court denied the petition for review.

¶ 12 We turn to the pending Knight petition filed by counsel. In the petition, counsel argues that Van Hout was denied both an appeal and the assistance of counsel on appeal. Van Hout asks for reinstatement of his direct appeal rights because we should not have permitted counsel to withdraw, and Van Hout did not intelligently and voluntarily waive his right to counsel or to an appeal. The petition reiterates that Van Hout never stated that he wanted to proceed pro se, he did not know that counsel had moved to withdraw, and he did not forbid his counsel from filing a no-merit report. The petition also asserts an incongruity between an order of this court that required Maroney to remain of record and a later order that permitted her to withdraw. The petition also contends that if counsel deems an appeal without merit and a defendant declines to close the file, counsel must file a no-merit report. See Speights v. Frank, 361 F.3d 962, 964 (7th Cir.2004), cert. denied, 543 U.S. 898, 125 S.Ct. 119, 160 L.Ed.2d 168 (2004).

¶ 13 In their response, the respondents argue that the habeas petition should be barred on laches grounds, and that the petition lacks merit because Van Hout waived his right to appeal and to counsel. In his reply to the respondents' response, Van Hout disagrees and reiterates that he did not waive his right to a direct appeal or to the assistance of counsel on that appeal.

¶ 14 We will reach the merits of the pending petition, and we focus on whether Van Hout knowingly and intelligently waived his right to counsel. The purpose of a Knight petition is to challenge the lawfulness of a defendant's imprisonment based on the denial of effective assistance of counsel on direct appeal. State v. Evans, 2004 WI 84, ¶ 39, 273 Wis.2d 192, 682 N.W.2d 784, criticized on other grounds by Coleman, 290 Wis.2d 352, ¶ 29, 714 N.W.2d 900. We must inquire whether counsel's actions were reasonable under the undisputed facts. Evans, 273 Wis.2d 192, ¶ 52, 682 N.W.2d 784. We evaluate whether appellate counsel performed deficiently and whether that deficient performance prejudiced Van Hout. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80...