State v. Knight
| Citation | 484 N.W.2d 540,168 Wis.2d 509 |
| Decision Date | 29 April 1992 |
| Docket Number | No. 91-0459,91-0459 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Christopher KNIGHT, Defendant-Appellant. . Oral Argument |
| Court | United States State Supreme Court of Wisconsin |
For the defendant-appellant there were briefs (in the court of appeals) by John Anthony Ward, Kenosha and oral argument by John Anthony Ward.
For the plaintiff-respondent there was a brief (in the court of appeals) by David J. Becker, Asst. Atty. Gen. and James E. Doyle, Atty. Gen. and oral argument by Mary V. Bowman, Asst. Atty. Gen.
This appeal is before us on certification from the court of appeals pursuant to sec. (Rule) 809.61, Stats. 1989-90. Christopher Knight, the defendant, appeals from an order of the Circuit Court for Kenosha County, Judge Bruce E. Schroeder, denying his motion for postconviction relief under sec. 974.06, Stats. 1989-90, alleging ineffective assistance of appellate counsel. The circuit court denied the motion, holding that it did not have the authority under sec. 974.06 to grant the relief requested. We affirm the order of the circuit court.
The parties agree that a criminal defendant who believes he or she has been denied effective assistance of appellate counsel is entitled to a procedure and forum for asserting this claim. Due process requires that a criminal defendant receive effective assistance of appellate counsel in bringing the first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).
The sole issue before the court is the appropriate vehicle of relief for a criminal defendant who asserts that his or her appellate counsel provided ineffective assistance. The defendant in this case argues that the appropriate procedure is for a defendant to seek postconviction relief and that the appropriate forum is the circuit court under sec. 974.06, Stats. 1989-90. 1 The state argues that the appropriate procedure is for a defendant to petition for a writ of habeas corpus to the appellate court that considered the appeal. While no procedural vehicle exists that was expressly designed to accommodate a defendant's claim of ineffective assistance of appellate counsel, we conclude, for the reasons set forth, that the appropriate procedure is a habeas corpus proceeding and the proper forum is the court that considered the appeal. Accordingly we affirm the order of the circuit court denying the defendant's sec. 974.06 motion.
The facts of this case are undisputed for purposes of this appeal. In 1984, the defendant was convicted in Kenosha County Circuit Court, Judge Bruce E. Schroeder, of one count of first-degree murder with a dangerous weapon, secs. 940.01(1) and 939.63(1)(a)2, Stats. 1983-84, and one count of armed robbery, sec. 943.32(2), Stats. 1983-84. The defendant was sentenced to life imprisonment plus five years for the murder count and to a consecutive twenty-year term for the count of armed robbery.
The State Public Defender appointed an attorney to help the defendant pursue postconviction relief. The attorney filed a timely appeal arguing that the circuit court had abused its discretion in denying a change of venue and that the evidence presented at trial was insufficient to support the verdict. On August 13, 1986, the court of appeals filed an unpublished per curiam decision affirming the defendant's conviction. State v. Knight, No. 85-2208-CR (Wis.Ct.App. Aug. 13, 1986). The attorney did not file a petition for review in the supreme court; the attorney took no further action in the case.
The Office of the State Public Defender appointed a second attorney to represent the defendant in further proceedings. This attorney filed a motion for postconviction relief in Kenosha County Circuit Court pursuant to sec. 974.06, Stats. 1989-90, alleging ineffective assistance of appellate counsel. The memorandum in support of the motion claimed that the first attorney was ineffective because he failed to challenge in the court of appeals the circuit court's refusal to instruct the jury on felony murder and to permit the defense to call certain witnesses. The memorandum further contested the first attorney's failure to seek review of the decision of the court of appeals in this court. We are not asked to resolve the underlying issue of whether the defendant received effective appellate representation. 2
The question we are asked to resolve, the proper procedure by which a defendant may assert a claim of ineffective assistance of appellate counsel, is a question of first impression in this state. Courts in other jurisdictions are divided about whether a claim of ineffective assistance of appellate counsel should be decided by the trial or appellate court.
The defendant in this case argues that a defendant must assert a claim of ineffective assistance of appellate counsel by filing a motion for postconviction relief in the circuit court. Our postconviction relief statute, sec. 974.06(1), provides the following procedure for a prisoner to move the circuit court to vacate, set aside, or correct a sentence:
After the time for appeal or postconviction remedy provided in s. 974.02 has expired, a prisoner in custody under sentence of a court claiming the right to be released upon the ground that the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
The defendant contends that if the circuit court entertaining the postconviction motion determines that the defendant was denied the constitutional right of effective assistance of appellate counsel, then the circuit court can vacate the judgment of conviction and resentence the defendant, recommencing the defendant's time for appeal. This procedure permits the defendant to remedy the deficiencies of appellate counsel by bringing a new appeal.
Several federal courts have concluded that a defendant in a federal proceeding who claims ineffective assistance of appellate counsel must apply to the federal district court for postconviction relief under 28 U.S.C. sec. 2255. 3 Section 974.06 contains almost identical language to and is taken directly from 28 U.S.C. sec. 2255. 4
In Page v. United States, 884 F.2d 300 (7th Cir.1989), the federal court of appeals broadly defined the phrase "collateral attack" in sec. 2255 as a "[r]eview of existing judgments," which includes claims of ineffective assistance of appellate counsel. 884 F.2d at 302. The court of appeals held that if a district court finds ineffective assistance of appellate counsel, it may vacate the judgment of conviction and reenter it, allowing the defendant a new appeal. On occasion, stated the court of appeals, ineffective assistance of appellate counsel may justify a new trial. 884 F.2d at 302.
The court of appeals in Page concluded that the postconviction remedy would not result in an inappropriate procedure whereby a district court would issue orders to the court of appeals to grant a defendant a new appeal. 884 F.2d at 302. The Pennsylvania Supreme Court, in Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468, 475 (1977), also did not view a trial court's determination of ineffective assistance of appellate counsel as a challenge to the integrity of appellate decisions. These courts reasoned that the trial court passes not on the appellate court's decision, but only on the conduct of the counsel who presented the appeal. Page, 884 F.2d at 302; Sullivan, 371 A.2d at 475. Furthermore the appellate court is not bound by the trial court's decision; the appellate court may review the trial court's decision on appeal by either party. Sullivan, 371 A.2d at 475.
In addition, considering the institutional capabilities of trial and appellate courts, the courts in Page and Sullivan concluded that the trial courts are the better forums to hear a claim of ineffective assistance of appellate counsel. A determination about the effectiveness of appellate counsel's representation may require the testimony of appellate counsel and other witnesses about counsel's strategic decisions. The trial court is the appropriate court to hear the testimony and make findings of fact; the appellate court is not an initial fact finder. Page, 884 F.2d at 302; Sullivan, 371 A.2d at 474-75.
In contrast, other circuits of the federal court of appeals and other state courts have held that a defendant may not bring a claim of ineffective assistance of appellate counsel by moving the trial court for postconviction relief. 5 These courts view the postconviction remedy in the trial courts as designed to set aside a sentence only for infirmities arising during the trial proceedings. If the trial court concludes that the defendant's claim of ineffective assistance of counsel is meritorious, the trial court proceeding results in an order setting aside the appellate decision, not in an order setting aside the trial proceedings. These courts therefore conclude that a motion to the trial court for postconviction relief is not suitable for a defendant's claim of ineffective assistance of appellate counsel. Feldman v. Henman, 815 F.2d 1318, 1321 (9th Cir.1987); Hemphill v. State, 566 S.W.2d 200, 208 (Mo.1978).
Because the defendant seeks relief that in effect vacates the appellate court decision affirming the conviction and redockets the case for appellate review, these courts conclude that the appropriate forum for the defendant is the appellate court. One court writes that a trial court "should not have authority to rule on the constitutionality of appellate procedures." Watson v. United States, 536 A.2d 1056, 1059-61 (D.C.1987), cert. denied, 486 U.S. 1010, 108 S.Ct. 1740, 100 L.Ed.2d 203 (1988). Another c...
To continue reading
Request your trial
-
State v. Love
...the circumstances of the case and the counsel's conduct and strategy unless the findings are clearly erroneous." State v. Knight, 168 Wis.2d 509, 514 n. 2, 484 N.W.2d 540 (1992). "However, whether counsel's performance was deficient and whether the deficient performance prejudiced the defen......
-
State v. Sanchez
...the circumstances of the case and the counsel's conduct and strategy unless the findings are clearly erroneous." State v. Knight, 168 Wis.2d 509, 514 n. 2, 484 N.W.2d 540 (1992). However, whether counsel's performance was deficient and whether the deficient performance prejudiced the defens......
-
State v. Pico
...not give deference to the decision of the circuit court." Pitsch, 124 Wis. 2d at 634, 369 N.W.2d 711 ; see also State v. Knight, 168 Wis. 2d 509, 514 n.2, 484 N.W.2d 540 (1992) ("The final determination of whether counsel's performance was deficient and prejudiced the defense are questions ......
-
State v. Balliette
...a defendant is required to file a petition for habeas corpus with the appellate court that heard the appeal. State v. Knight, 168 Wis.2d 509, 520, 484 N.W.2d 540 (1992). When, however, the conduct alleged to be ineffective is postconviction counsel's failure to highlight some deficiency of ......
-
Wisconsin Court of Appeals is forum for ineffective claim.
...curiam opinion, concluded that it did. The court began with a review of authority it acknowledged was inconsistent. In State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992), the Wisconsin Supreme Court held that a habeas corpus petition filed in the Court of Appeals is the proper vehicle f......
-
WI COS holds attorney filing of no-merit brief is violation of rules of professional responsibility.
...reinstate his appeal rights, but the court of appeals denied the motion. In 2000, Van Hout filed a petitoin pursuant to State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992), claiming that the court should have required Maroney to file a no-merit report. The court of appeals denied this Va......