‘Partial no-merit briefs’ not required

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A defendant has no right to a “partial no-merit brief” when he declines to pursue his only potentially meritorious issues, the Wisconsin Court of Appeals held on Aug. 10.

In 1998, Richard A. Ford was convicted of sexual assault and sentenced to 20 years in prison. Although his appellate counsel thought a motion for plea withdrawal was potentially meritorious, Ford did not want to pursue the motion, because it could expose him to an even longer sentence.

Counsel did not file an appeal or a no-merit brief, although Ford believed he had a meritorious sentencing issue for appeal.

Ford then filed a petition in the court of appeals, claiming ineffective assistance of appellate counsel. The court obtained pro bono counsel to represent Ford, and ultimately held that counsel was not ineffective, in a published decision. Ford v. Holm, 2004 WI App 22, 269 Wis.2d 810, 676 N.W.2d 500.

However, the court remanded the case to circuit court to determine whether Ford knowingly and voluntarily waived his right to appeal or be represented by counsel.

The circuit court found that he knowingly waived his right to appeal the guilty plea issue. Ford again sought a writ of habeas corpus in the court of appeals.

The State conceded error, and on Nov. 17, 2005, the court of appeals held that Ford was entitled to have a no-merit report filed with respect to the sentencing issue.

However, after the State Public Defender moved to intervene and requested reconsideration, the court withdrew its opinion.

After reconsidering the issue, the court held that Ford was not entitled to a partial no-merit brief, in a decision by Judge David G. Deininger.

Concluding that “our prior analysis was flawed,” the court noted that nothing in Rule 809.32 mandates, or even expressly authorizes, a partial no-merit procedure.

In addition, the court found that a no-merit report is not constitutionally mandated by Anders v. California, 386 U.S. 738 (1967).

The court wrote, “The Supreme Court has explained that the procedure it described in Anders is but an example of a ‘prophylactic’ procedure that a state may, but is not required to, follow in order to satisfy due process and equal protection concerns when appointed postconviction counsel concludes a given record provides no grounds for postconviction relief (citing Smith v. Robbins, 528 U.S. 259, 265 (2000).”

In Robbins, the Supreme Court upheld California’s “Wende procedure,” and called it “better than” Wisconsin’s, in some ways. Pursuant to the Wende procedure, counsel must attest that he or she has reviewed the record and explained counsel’s evaluation of the case to the defendant. Counsel must then summarize the procedural and factual history of the case for the reviewing court, without identifying or discussing any issues or expressing any view as to the merits of the case.

In upholding this procedure the U.S. Supreme Court explained that this procedure avoids the ethical tension inherent in Wisconsin’s procedure, in which counsel must both raise and then deflate potential issues.

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Applying Robbins, the court of appeals wrote, “Ford’s constitutional right to effective representation for the purpose of exercising his right to directly appeal his 1998 conviction did not require his postconviction counsel to offer him the option of a ‘partial no-merit’ report on any potential issues remaining after Ford declined for strategic reasons to pursue an issue having arguable merit. The Supreme Court explained in Robbins that the U.S. Constitution requires only that ‘an indigent’s appeal will be resolved in a way that is related to the merit of that appeal,’ Robbins, 528 U.S. at 276-77, and, further, that an indigent’s constitutional right is ‘to have an attorney, zealous for the indigent’s interests, evaluate his case and attempt to discern nonfrivolous arguments,’ Id. at 278 n.10.”

Accordingly, the court denied Ford’s writ.

Before concluding the court noted that competing professional considerations weigh against the filing of a partial no-merit reports.

The court wrote, “As the Supreme Court recognized in Robbins, an attorney may well have legitimate ethical qualms about filing a no-merit report under Wis. Stat. Rule 809.32, even when such a report is clearly required by the rule. We conclude that it cannot therefore be a violation of ‘professional norms’ to not file a no-merit report when one is not clearly required by the rule or by the Constitution.”

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David Ziemer can be reached by email.