State ex rel. Wren v. Richardson

• Decision Date: 26 December 2019
• Docket Number: No. 2017AP880-W,2017AP880-W
• Parties: STATE of Wisconsin EX REL. Joshua M. WREN, Petitioner-Petitioner, v. Reed RICHARDSON Warden, Respondent.
• Court: Wisconsin Supreme Court

389 Wis.2d 516

936 N.W.2d 587

2019 WI 110

STATE of Wisconsin EX REL. Joshua M. WREN, Petitioner-Petitioner,

v.Reed RICHARDSON Warden, Respondent.

No. 2017AP880-W

Supreme Court of Wisconsin.

Oral Argument: September 6, 2019

Opinion Filed: December 26, 2019

For the petitioner-petitioner, there were briefs filed by John T. Wasielewski and Wasielewski & Erickson, Milwaukee. There was an oral argument by John T. Wasielewki.

For the respondent-respondent, there was a brief filed by Sara Lynn Shaeffer, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Sara Lynn Shaeffer.

HAGEDORN, J., delivered the majority opinion of the court, in which ROGGENSACK, C.J., ZIEGLER and KELLY, JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY and DALLET, JJ., joined.

BRIAN HAGEDORN, J.

¶1 After his conviction in 2007 for reckless homicide, Joshua M. Wren alleges his counsel failed to file a notice of intent to pursue postconviction relief as promised, causing Wren to lose his direct appeal rights. Wren knew this, however, by sometime in 2010 or 2011. Over the next several years, Wren filed four pro se motions relating to his conviction, none of which raised his counsel's alleged blunders. Then, in 2017, Wren filed a petition for a writ of habeas corpus asserting ineffective assistance of counsel for failing to appeal, and seeking to reinstate his direct appeal rights. In defense, the State pled laches, resting its case on the fact that the attorney who made the alleged missteps passed away in 2014, and no case files or notes remained. The court of appeals agreed with the State, imposed laches, and denied the petition.¹

¶2 Before us, Wren asserts that our adoption of laches as an available defense to a habeas petition was ill-considered and should be reexamined. But even if laches can bar his claim, Wren maintains that the State failed to prove the elements, and that the court of appeals erroneously exercised its discretion in applying laches here.

¶3 We disagree. This court held just a few months ago that the State may assert laches as a defense to a habeas petition. See State ex rel. Lopez-Quintero v. Dittmann, 2019 WI 58, ¶10, 387 Wis. 2d 50, 928 N.W.2d 480. We decline to revisit that ruling today. On the merits, we agree with the court of appeals that the State established unreasonable delay and prejudice, the two laches elements Wren challenges. We further conclude that the court of appeals did not erroneously exercise its discretion by applying laches and barring relief.

I. BACKGROUND

¶4 In early 2006, 15-year-old Joshua Wren shot and killed a man.² He pled guilty to first-degree reckless homicide, and in March 2007 was sentenced to 21 years of initial confinement and nine years of extended supervision—considerably more than Wren's counsel suggested and longer than was recommended in the presentence investigation report (PSI).³

¶5 On the day of sentencing, Wren's attorney, Nikola Kostich, filed the "Notice of Right to Seek Postconviction Relief"; this form contained a checked box indicating Wren was undecided about pursuing postconviction relief. No notice of intent to seek postconviction relief was ever filed.

¶6 During the next ten years, Wren filed and litigated four pro se motions related to his conviction.

• In 2010, he unsuccessfully moved to vacate his DNA surcharge. The circuit court denied his 2011 motion for reconsideration.

• In 2013, Wren again challenged the DNA surcharge and also sought to amend the judgment of conviction regarding his restitution obligations. The circuit court denied the DNA surcharge challenge once again, but did amend the judgment of conviction to clarify his restitution requirements.⁴

• In 2015, he sought a copy of the PSI. This motion was also denied, in part on the grounds that Wren previously had an opportunity to review the report and "the direct appeal deadline ha[d] long since expired."

• In 2016, Wren sought sentence modification, arguing that the circuit court relied on improper facts (an alleged beating by Wren of a fellow prisoner). The motion was denied as untimely filed.

¶7 Finally, in 2017, more than a decade after sentencing, Wren filed a Knight petition⁵ in the court of appeals seeking to reinstate his direct appeal rights on the grounds of ineffective assistance of counsel. In Wren's telling, he and his family wanted to appeal and made multiple attempts to communicate this to Kostich. Yet they heard nothing back. The petition described Kostich's disciplinary history to substantiate his non-responsiveness.⁶ The long and short of it, according to Wren's petition, is that Kostich promised to appeal, did not do so, and never responded to multiple inquiries by Wren and his family. Wren insists he was left entirely without counsel in violation of his Sixth Amendment rights, and should therefore have his direct appeal rights reinstated.

¶8 The court of appeals remanded the matter to the circuit court for an evidentiary hearing. However, Kostich passed away in 2014, so the State had no witnesses, nor were any of Kostich's case files located. Nonetheless, the circuit court heard from Wren and three of his family members, and rendered factual findings based on the evidence presented.

¶9 Relevant circuit court findings include the following: Wren signed the Notice of Right to Seek Postconviction Relief six days before sentencing, he did not personally check the box indicating he was undecided about pursuing postconviction relief, and Wren was unaware which box would end up being checked. Wren contacted Kostich in a timely manner, and Kostich told Wren that he would appeal. Several of Wren's family members spoke with Kostich immediately after the original sentencing hearing, and Kostich told them an appeal would be forthcoming. After the deadline to appeal had passed, Wren wrote Kostich regarding the status of the appeal and never heard back. Wren's mother, father, and sister made similar efforts to reach Kostich before and after the appeal deadline passed, all to no avail. Kostich "intentionally led" Wren and his family to believe he was going to timely file postconviction relief, but he failed to do so and notified no one. Kostich failed to contact Wren or his family after sentencing, despite their persistent efforts.

¶10 In accordance with Wren's testimony, the circuit court additionally found that sometime in 2010 or 2011, Wren knew no appeal had been filed. Though he sought relief of various kinds through four other pro se motions, Wren was unaware that he could petition to reinstate his direct appeal rights. He "wanted to seek postconviction relief regarding ineffective assistance of trial counsel and the sentence, but he did not know how to do so." Wren eventually learned what to do and how to do it after communicating with an incarcerated uncle, and he filed the present habeas petition within three to four months.

¶11 Following the evidentiary hearing, the court of appeals entertained briefing based on the circuit court's findings. The State did not challenge the facts found as clearly erroneous, nor did it address the merits of Wren's ineffective assistance of counsel argument because it could not; the State had no evidence or witnesses to present regarding what happened and why. Rather, it raised the defense of laches, essentially arguing that its hands were tied due to Wren's delay and his former counsel's intervening death. The court of appeals concluded that the State proved the requisite legal elements of laches, and exercising its own discretion, determined it was equitable to apply laches in this case. We granted Wren's petition for review.

II. DISCUSSION

¶12 Wren raises three arguments against the application of laches to his case.⁷ First, he contends the doctrine of laches should not apply to habeas petitions at all. Second, he asserts the State failed to prove two of the three elements of laches—unreasonable delay and prejudice. Finally, Wren maintains the court of appeals erroneously exercised its discretion in choosing to apply laches to his petition.

A. Laches Is a Defense to a Habeas Petition

¶13 Wren begins with a request that we reexamine our adoption of the laches defense to habeas petitions. His principal argument is that we incorporated laches into our habeas corpus jurisprudence somewhat thoughtlessly in two court of appeals opinions.⁸ Whatever merit those criticisms may have, however, we had occasion to directly answer this question last term. In Lopez-Quintero, we made clear that the State may raise laches as an affirmative defense to a habeas petition. 387 Wis. 2d 50, ¶16, 928 N.W.2d 480. Moreover, Wren did not raise and brief this issue below, nor was it presented in Wren's petition for review. Having just considered the matter, we decline Wren's invitation to reconsider it.

B. Laches Was Properly Applied to Wren's Habeas Petition

¶14 "Laches is founded on the notion that equity aids the vigilant, and not those who sleep on their rights to the detriment of the opposing party ...." 27A Am. Jur. 2d Equity § 108.⁹ It is, at root, an equitable defense to an equitable claim.¹⁰ Though different jurisdictions structure the analytical framework somewhat differently, the doctrine is consistent in concept: did a party delay without good reason in asserting its rights, and did the delay prejudice the party seeking to defend that claim.

¶15 In Wisconsin, application of laches to habeas petitions proceeds in two steps. First, the party asserting the defense—the State in this instance—must prove the following three elements: "(1) unreasonable delay in filing the habeas petition, (2) lack of knowledge on the part of the State that the petitioner would be asserting the habeas claim, and (3) prejudice to the State." Lopez-Quintero, 387 Wis. 2d 50, ¶16, 928 N.W.2d 480. Second, even if the State proves all three elements, the court may—in its discretion—choose not to apply...