Extensions Case Analysis

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From the standpoint of efficiency, the court’s holding is clearly preferable to the alternative, and the attendant procedural complications noted by the court.

Allowing a simple extension also avoids the situation in the Seventh Circuit case, Betts v. Litscher, 241 F.3d 594, 596 (7th Cir. 2001), in which that court granted a habeas corpus petition to a Wisconsin prisoner, writing, "Betts was constitutionally entitled to the assistance of counsel on direct appeal, but the state of Wisconsin gave him the runaround. It allowed counsel to withdraw unilaterally, then used the ensuing procedural shortcomings to block all avenues of relief. Yet one principal reason why defendants are entitled to counsel on direct appeal is so that they will not make the kind of procedural errors that unrepresentative defendants tend to commit."

The facts in Betts were different in that the appellate attorney never filed an appeal, a no-merit brief, or a motion to withdraw, after the notice of intent was filed. The facts are similar, nonetheless. In both, an attorney took no action (or no timely action), and ill-suited appellate courts must determine whether to reinstate appellate rights.

Nevertheless, it is questionable whether the court’s distinction of State v. Evans, 2004 WI 84, 273 Wis.2d 192, 82 N.W.2d 784, will withstand review. The court gives a number of good policy reasons why it should permit extensions. Almost all were equally applicable in Evans, however.

In both cases, the defendant must attempt to proceed pro se, is limited in the claims that can be made, and the social costs of erroneous conviction are the same.

Also problematic is the court’s enumerated factors for deciding whether to grant an extension. There are many considerations that go into the ultimate decision whether to file an appeal. The merits must be considered, as well as potential costs, for prevailing on appeal may in some instances result in reconviction and a longer sentence than the original.

Such complications don’t exist for the decision whether to file a notice of intent. The attorney asks the defendant after sentencing whether he wants to appeal. If the defendant says yes, the attorney either files a notice of intent within 20 days, or he is ineffective.

If the client says, "no," or "I don’t know," then the attorney tells him that if he wants to appeal, he better let him know within 20 days.

The fault is either with the attorney, or the defendant; either the attorney was ineffective, or the defendant changed his mind too late; the court’s first factor — "the extent to which the delay appears to have without fault of the defendant" — suggests a gray area between the two that doesn’t exist.

Likewise, "the promptness of the defendant’s request for an extension" should not be relevant. If it is undisputed that a defendant wanted to appeal, but the attorney didn’t file a timely notice of intent, the defendant should not be punished for he attorney’s failure, whether the delay be only one day, or much longer.

	Related Links Wisconsin Court System Related Article Extensions for notices of intent allowed

And the third factor — "the avoidance of a disproportionate expenditure of judicial resources to make factual findings" — is also of dubious value. Either the attorney will concede error (and there is no need for hearings to make factual findings), or error is disputed, and factual findings should be required.

The only scenario in which both attorney and defendant are blameless is if the defendant decides he wants to appeal within 20 days, but for some legitimate reason, is unable to communicate that desire to the attorney in time. Without a hearing, however, it is not clear how a court is to determine whether the defendant is in fact blameless, or has merely changed his mind too late.

In practice, therefore, it is likely that the decision whether to grant an extension without any hearing will rest on the sole factor of whether the attorney admits error in failing to file a timely notice.

– David Ziemer

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David Ziemer can be reached by email.