Defendant contests state’s no-merit procedures

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Court of Appeals relieves original counsel of duties

The Wisconsin Supreme Court is considering what duties the Court of Appeals should have, if any, when it is acknowledged that postconviction counsel made a mistake before the circuit court.

The defendant in the case up for debate, State v. Sutton, pleaded guilty to retail theft. Despite receiving a sentence of only one day, Jeffery Sutton wanted to appeal, and postconviction counsel was appointed.

Sutton’s appointed counsel, Maayan Silver, moved to withdraw the guilty plea on the basis that the plea colloquy was inadequate because the court did not inquire whether Sutton knew that a jury must unanimously find him guilty in order to convict him.

However, Silver failed to allege that Sutton was, in fact, unaware of his right to a unanimous jury, as required by State v. Grant, 230 Wis.2d 90, 102, 601 N.W.2d 8 (Ct.App.1999). On that basis, the motion was denied by the circuit court.

Silver then sought unsuccessfully to either obtain an extension from the Court of Appeals or a motion for reconsideration in the circuit court.

Unable to raise the issue in the circuit court or on direct appeal, postconviction counsel filed a no-merit report highlighting the potential ineffective assistance claim based on Silver’s failure to properly allege the jury waiver claim and conceding ineffective representation.

Nevertheless, the Court of Appeals summarily affirmed the conviction and relieved Silver of her duties. The State Public Defender then appointed new counsel, Kaitlin Lamb and Colleen Ball of the State Public Defender’s Office Appellate Division, to pursue the issue and the Wisconsin Supreme Court granted review.

Sutton contends before the state Supreme Court that the Court of Appeals should have rejected the no-merit brief and remanded the case to the circuit court so that he could pursue the ineffective assistance claim.

In their brief, Sutton’s newly appointed counsel argued, “the simple, efficient way to address Mr. Sutton’s ‘defective jury waiver’ and/or ‘ineffective assistance of counsel’ issues was to reject the no-merit report, reinstate Mr. Sutton’s direct appeal rights and appoint new postconviction counsel who could file a new or amended postconviction motion or pursue the pending reconsideration motion.”

But the state argues that this proposal is neither simple nor efficient.

On the contrary, the state argues in its brief, “Until the direct appeal process has run its course, a defendant cannot establish prejudice from the performance of appellate/postconviction counsel, because the outcome of direct appeal could still be favorable to the defendant. … If Sutton were correct, then the direct appeal process always would have to be interrupted to remand for a Machner hearing on the ongoing performance of appellate/postconviction counsel.”

A decision is expected from the court later this term.