By: dmc-admin//September 17, 2003//
The effect of the decision is that, for all practical purposes, a defendant can obtain a second shot at appeal, regardless of whether his appellate counsel files an appeal or a no-merit brief.
In the recent decision by the Wisconsin Supreme Court in State v. Lo, 2003 WI 107, par. 50, the court quoted at great length from Judge David G. Deiningers unpublished concurring opinion at the court of appeals level.
In part, that quotation states as follows: In an increasing number of appeals, we are seeing an assertion that the reason the newly raised claims of error were not raised in previous postconviction or appellate proceedings is that postconviction or appellate counsel rendered ineffective assistance by failing to present the allegedly meritorious claims. In order to determine whether the new claims are properly before the court, the circuit court and/or this court must first evaluate the sufficiency of the proffered reason, which … will often require a consideration the merits of the underlying, newly asserted claim. … Further complicating the analysis is the fact that many of the newly raised claims … involve an assertion that trial counsel was ineffective for failing to make some request or objection during trial or pre-trial proceedings, and that subsequent counsel were ineffective for failing to raise a claim of ineffective assistance of trial counsel.
What makes the case at bar different from the cases Judge Deininger described is that P/A counsel did not file any brief challenging the conviction in the court of appeals. Instead, he filed one postconviction motion (on an issue unrelated to suppression of the confession), which was denied, but then did not appeal that denial, but instead filed a no-merit brief.
Suppose, however, that Pages counsel unsuccessfully appealed the denial of the postconviction motion, and then Page filed a sec. 974.06 motion, following the procedure outlined by Judge Deininger in his concurrence in Lo.
The Seventh Circuits decision in the case at bar holds that the underlying merits of a defendants claim of error must be considered when the P/A attorney files a no-merit brief, and the defendant makes the claims described by Judge Deininger.
The question is whether, as a logical extension of the Seventh Circuits holding, a defendant has the constitutional right to use Judge Deiningers procedures when the P/A attorney does file an appeal.
The court held that a defendant has a constitutional right to the effective assistance of counsel on appeal, and that it cannot be waived by the mere failure on the part of the defendant to raise the ineffective assistance of trial counsel in a no-merit brief.
How then, could a defendant waive the right to effective assistance of P/A counsel when that attorney files an appeal, but without raising the ineffective assistance of trial counsel as an issue, and the defendant does not even have the opportunity to object that he has in a no-merit situation?
Admittedly, if a defendant feels his trial counsel was ineffective, but his appellate attorney does not raise the issue, the defendant could file his own brief in the court of appeals raising the issue.
However, the court of appeals would be in no position to evaluate the validity of the claim, for the exact same reasons it is in no position to do so in a no-merit situation there has been no Machner hearing before the trial court, at which the trial attorney could testify as to the reasons for his decisions.
Because the court of appeals would be required to refuse consideration of the issue, even if the defendant raised it, there could be no waiver, just as in the case at bar.
Thus, arguably, the courts decision could be interpreted as holding that what Judge Deininger called a problem created by defendants attempts to evade the bar on su
ccessive appeals (and which the Supreme Court majority opinion also recognized as a problem), is not really a problem at all, but a federal constitutional right.
– David Ziemer
David Ziemer can be reached by email.