State of ex rel Roberts v. Thurmer, No. 2007AP1465 (Wis. App. 9/30/2008), 2007AP1465.
| Decision Date | 30 September 2008 |
| Docket Number | No. 2007AP1465.,2007AP1465. |
| Parties | State of Wisconsin ex rel. Andrew Roberts, Petitioner-Appellant, v. Michael Thurmer, Warden, Waupun Correctional Institution, Respondent-Respondent. |
| Court | Wisconsin Court of Appeals |
APPEAL from an order of the circuit court for Milwaukee County: JEAN W. DI MOTTO, Judge. Affirmed.
Before Curley, P.J., Fine, J., and Daniel L. LaRocque, Reserve Judge.
Andrew Roberts appeals pro se from a circuit court order denying his petition for a writ of habeas corpus, which was filed under State v. Knight, 168 Wis. 2d 509, 522, 484 N.W.2d 540 (1992) (). Roberts contends that his appellate counsel failed to properly advise him of his appellate rights and abandoned him without pursuing an appeal. The record establishes that: (1) counsel properly advised Roberts of his postconviction and appellate options; and (2) Roberts failed to inform counsel as to how he wished to proceed. We conclude that Roberts waived his appellate rights by that conduct. We therefore affirm the circuit court's order.
¶ 2 In 2001, Roberts pled guilty to felony murder as a party to a crime. He was sentenced to a sixty-year prison term, of which he was to serve a minimum of thirty-five years in initial confinement.
¶ 3 The state public defender appointed counsel for Roberts. Counsel filed a postconviction motion on Roberts' behalf seeking plea withdrawal. The circuit court denied the motion without holding a hearing.
¶ 4 By letter dated December 6, 2002,1 counsel wrote to Roberts regarding his analysis of the circuit court's postconviction decision. Counsel stated that he believed an appeal would have "no legal merit" and that "the only appellate representation I could provide at this time would be in the form of a no-merit report pursuant to [WIS. STAT. RULE 809.32 (1999-2000)]."2 Counsel advised Roberts as to the contents and purpose of a no-merit report, Roberts' opportunity to file a response, and this court's subsequent independent review of the filings and record. Counsel further advised Roberts that if this court found issues of arguable merit, it could order further postconviction or appellate proceedings. Counsel noted, however, that if this court agreed with his analysis, it would affirm the conviction and release him from further representation of Roberts.
¶ 5 Counsel then explained to Roberts that, in light of that analysis, he had three options:
1. You could have me file a no-merit report as detailed above;
2. You could have me close the file without an appeal; or
3. You could discharge me and proceed on your own (pro se) or with an attorney retained at your own expense.
Counsel noted that Roberts had indicated in their prior telephone discussion that he had not yet made a decision as to how he wished to proceed. He further stated that should Roberts instruct him "to close my file without an appeal or further court action, this choice would end your direct appeal" and would also limit or eliminate Roberts' postconviction and appellate options in state and federal court. Counsel also advised Roberts that should he choose to close the file without action "[n]o other lawyer [would] be appointed to represent" him.
¶ 6 After counsel invited Roberts to contact him with questions, he stated that he expected to hear from Roberts no later than January 6, 2003 "with instructions as to how to proceed in this case." Counsel concluded: "Should I not hear from you by Monday, January 6, 2003, please be advised that I will interpret that to mean that you do not wish to have me file a no-merit report as outlined above, and I will close my file without an appeal or further court action."
¶ 7 The record indicates that Roberts had no further contact with counsel, and Roberts concedes as much in his petition. Roberts argued in his petition, however, that counsel provided ineffective representation by closing his file "without bringing a motion to withdraw or a no-merit appeal after having filed a RULE 809.30 motion." He further argued that counsel's "no-response" assumption as specified in his letter "cannot be interpreted as an [express] waiver of the petitioner's right to a direct appeal or counsel." He argued that counsel's representation was "deficient for attempting to obtain waiver in that fashion." He maintained that he had not been fully informed of his postconviction and appellate rights, that he had not knowingly, intelligently, and voluntarily waived his right to a direct appeal or counsel, and that counsel improperly abandoned him. The circuit court disagreed, and Roberts appeals.
¶ 8 Roberts first argues that the decision to transfer his petition from the civil division, where it was filed, to the criminal division was improper. We disagree. The underpinning of Roberts' petition was his 2001 criminal conviction. WISCONSIN STAT. § 782.01(1) provides that a habeas corpus petition is subject to the limitations of WIS. STAT. § 974.06. Section 974.06 was adopted to replace habeas corpus as the primary method for attacking a criminal conviction once the time for appeal had expired. State v. Escalona-Naranjo, 185 Wis. 2d 168, 176, 517 N.W.2d 157 (1994). We agree with the State that Roberts' habeas corpus petition was properly transferred to the criminal court.3
¶ 9 We also agree with the State that Roberts' proper remedy was by filing a Knight petition in this court. See State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 798-99, 565 N.W.2d 805 (Ct. App. 1997) abrogated on other grounds by State ex rel. Coleman v. McCaughtry, 2006 WI 49, ¶29, 290 Wis. 2d 352, 714 N.W.2d 900. Nonetheless, because Roberts' claims are now squarely before this court, we conclude that it is most efficient to address the merits of the appeal, rather than affirming the circuit court's order on a technicality and forcing Roberts to re-file his habeas corpus petition in this court.
¶ 10 The rules governing waiver of postconviction counsel are set out in State ex rel. Ford v. Holm, 2004 WI App 22, ¶32, 269 Wis. 2d 810, 676 N.W.2d 500:
We concluded in [State v.] Thornton[, 2002 WI App 294, ¶21, 259 Wis. 2d 157, 656 N.W.2d 45,] that a knowing and intelligent waiver of postconviction counsel requires a showing that the defendant was aware (1) of the rights discussed in [State ex rel.] Flores [v. State, 183 Wis. 2d 587, 516 N.W.2d 362 (1994)] (); (2) of "the dangers and disadvantages of proceeding pro se"; and (3) that if appointed counsel withdraws from representation, successor counsel would not be appointed to represent the defendant in postconviction proceedings.
"A defendant who has been informed of his...
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