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Extensions for notices of intent allowed

By: dmc-admin//January 5, 2005//

Extensions for notices of intent allowed

By: dmc-admin//January 5, 2005//

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The Wisconsin Court of Appeals held on Dec. 30 that a defendant may be granted an extension to file a notice of intent to pursue postconviction relief, notwithstanding State v. Evans, 2004 WI 84, 273 Wis. 2d 192, 682 N.W.2d 784, which bars such extensions for post conviction motions claiming ineffective assistance of counsel.

Christine Quackenbush and Michael Lee were both convicted of criminal offenses. Neither of their attorneys filed a notice of intent within 20 days, as required by Rule 809.30(2)(a).

Quackenbush’s trial counsel filed a motion for an extension, slightly more than three months late, claiming that counsel was under a mistaken impression as to what deadline applied in misdemeanor cases. Lee’s trial counsel requested a one-day extension, acknowledging that he was unable to determine exactly why it was late, either because he miscalculated the proper date or failed to ensure that his staff filed it timely.

The court held that it had authority to grant the extensions, and did so, in a per curiam decision.

The court began with a lengthy discussion of Evans. In Evans, the court of appeals granted a lengthy extension of time for a defendant to file a postconviction motion, relying on Rule 809.82. The motion claimed that Evans had not properly waived his right to appellate counsel during his initial postconviction review, which had terminated without the filing of either a postconviction motion or notice of appeal.

After the extension, Evans filed an unsuccessful postconviction motion, and then an appeal. The court of appeals reversed and remanded for a new trial on one count.

However, the Supreme Court reversed the court of appeals, concluding that it erroneously exercised its discretion by using the extension authority under Rule 809.82, instead of requiring Evans to file a habeas corpus petition in the court of appeals, alleging ineffective assistance of appellate counsel, pursuant to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).

Nevertheless, the court concluded that Evans was distinguishable, and that it could grant the extensions to Lee and Quackenbush, stating, "Extending Evans to notices of intent is not supported by sound policy reasons and might have undesirable and unintended side effects."

The court noted that its practice of granting such extensions "is long established and has generally worked well, adding, "We are unaware of any substantial prior complaint from parties on either side, or from the public, to our application of the ‘good cause’ standard in deciding whether to permit a notice of intent to be filed beyond the twenty-day time limit prescribed by rule. Although we do not have statistics readily available, we regularly receive extension motions for notices of intent. It is safe to say that each district of this court receives several such motions per month, and some receive more. Some of the motions could not be construed as alleging ineffective assistance of counsel, but a significant number could be so characterized."

What the court held

Case: State of Wisconsin v. Christine M. Quackenbush, No. 02-0489-CR; and State of Wisconsin v. Michael D. Lee, No. 02-0505-CR.

Issue: Can the court of appeals grant an extension of time in which to file a notice of intent to seek postconviction relief?

Holding: Yes. Rule 809.82 permits such extensions, for good cause.

Justifying its authority to grant such extensions, the court explained, "Because the notice of intent is the document that commences the postconviction process, the denial of an extension motion effectively precludes direct review of a criminal conviction under Wis. Stat. Rule 809.30."

The court acknowledged that a defendant could still obtain relief under sec. 974.06, but he would not be entitled to appointed counsel, and could face limits on the types of issues that can be raised.

Granting extensions for "good cause" under sec. 809.82 would permit a broader range of considerations, while confining the analysis to claims of ineffective assistance of counsel would "unwisely remove from our consideration other proper factors that might merit the granting of a request to extend the time for filing a notice of intent, given the public interest in permitting criminal convictions to be reviewed for error."

The court added, "The social costs of an erroneous conviction can be very high, and that is perhaps why the deadline for filing a notice of intent to pursue postconviction relief has not been declared inviolable, as has, for example, the deadline for filing a notice of appeal in most civil cases." In addition, the court noted that some rules explicitly provide that particular appellate deadlines may not be enlarged, but that no absolute deadline exists for filing notices of intent.

The court then listed a number of nonexhaustive factors it will consider in deciding whether to grant extensions: the extent to which the delay appears to have been without fault of the defendant; the promptness of the defendant’s request for an extension; and the avoidance of a disproportionate expenditure of judicial resources to make factual findings regarding requests for relatively short extensions. The court added that it will seek to screen out defendants who have simply changed their minds.

The court also found procedural problems with not allowing extensions, observing that it is not clear in what court a defendant should seek habeas relief. The court wrote, "The Supreme Court directed in Evans that a habeas petition alleging ineffective assistance be filed in this court, but, there, the alleged ineffectiveness involved appellate counsel, and the court’s direction was thus consistent with Knight. The State argues for the same procedure for notice-of-intent-extension requests involving ineffective assistance of trial counsel. The State, however, glosses over the fact that the attorney whose effectiveness is in question would have never appeared before us, and any deficient performance would thus have occurred in the circuit court, which mig
ht therefore be better positioned to initially assess counsel’s effectiveness."

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Case Analysis

The court added, "whichever court would be the proper one to entertain habeas petitions on the present facts, the basis for deciding them are, at best, unclear given the absence of present Wisconsin case law regarding the duties of trial counsel in connection with advising defendants regarding postconviction matters. The Supreme Court discussed in Flores-Ortega, 528 U.S. at 478, the analysis to be applied when a defendant alleges that counsel failed to file the document that commences the postconviction process. There is no published Wisconsin case law applying that analysis to our notice of intent procedure under Wis. Stat. Rule 809.30."

In conclusion, the court stated, "These problems are not insurmountable, of course, in that guidance on how to process and decide habeas petitions seeking extensions for filing notices of intent would be forthcoming in due time. We simply conclude that enduring the legal and procedural uncertainties involved and the amount of judicial resources necessary to resolve them are not warranted, given our authority to grant extensions under Wis. Stat. Rule 809.82 and the adequacy of our present practice of addressing late notices of intent under that authority."

Application

Applying the factors it enunciated above to the cases at bar, the court found both satisfied the good cause requirement, and granted the motions for extension.

Click here for Case Analysis.

David Ziemer can be reached by email.

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