No Merit Case Analysis

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In a footnote, the court suggested that Wisconsin’s rules governing no-merit cases be reconsidered.

The court wrote, “The SPD asserts in its reply brief that ‘the Robbins majority adopts the position advocated by the [SPD] in McCoy: that the Wisconsin rule “arguably exacerbated the ethical problem already present in the Anders procedure” with respect to requiring counsel to brief the case against the client.’ If the SPD believes the Supreme Court’s discussion in Robbins provides support for revising the procedure set forth in Wis. Stat. Rule 809.32 in order to reduce the apparent ‘ethical tensions’ created by the present procedure, we encourage it to pursue a petition to the Wisconsin Supreme Court seeking an amendment to the rule, either directly or by encouraging the Judicial Council or the Criminal Law or Appellate Sections of the State Bar to take up the issue.”

It is noteworthy that the Wisconsin Supreme Court has a unique relation to the issue. Of the three major U.S. Supreme Court cases considering no-merit cases, one, McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429 (1988), was argued unsuccessfully by now-Justice Louis B. Butler, Jr.

Apart from the conflict of interest problems inherent in Wisconsin’s procedure, however, there is a more pressing problem. Although Wisconsin’s procedure has been upheld by the U.S. Supreme Court, in practice, it sometimes runs afoul of what the Seventh Circuit requires. If Ford elects to seek relief in federal court, he may well prevail.

In Betts v. Litscher, 241 F.3d 594 (7th Cir.2001), the attorney for a Wisconsin prisoner decided an appeal would be frivolous, and informed the court that the defendant had declined a no-merit brief, and elected to proceed pro se.

The defendant, however, made numerous requests for appellate counsel. When they were denied, he filed a pro se appeal. The court of appeals held that all complaints, including the demand for counsel on appeal, had been forfeited.

The Seventh Circuit granted his habeas corpus petition, directing that he be appointed counsel, and that his direct appeal rights be reinstated.

The court wrote, “Betts was constitutionally entitled to the assistance of counsel on direct appeal, but the State of Wisconsin gave him the runaround.” Id., at 596.

The court concluded that Betts was entitled to counsel unless he waives the right, and there was no evidence of waiver. In the case at bar, Ford may have waived his right to appeal one issue — whether his plea was voluntary — but there is no evidence that he has waived his right to counsel to appeal the sentencing issue.

In Betts, the court wrote, “Counsel may not be the final judge of frivolousness.” Id., at 597. The court found that McCoy, Anders v. California, 386 U.S. 738 (1967), and Smith v. Robbins, 528 U.S. 259 (2000), all require a “judicial decision on frivolousness” (emphasis in original) that was missing in Betts’ case. Id., at 597.

In the case at bar, Ford was convicted and sentenced eight years ago. Even though this is the third time the court of appeals has decided his case, there still has yet to be any judicial decision on whether his claim of error related to his sentencing is frivolous or not. Like Betts, Ford has received “the runaround,” and Wisconsin’s no-merit procedures, as applied in this case, violates the constitutional requirement of a judicial decision on frivolousness.

	Related Links Wisconsin Court System Related Article ‘Partial no-merit briefs’ not required

Requiring a “partial no-merit brief” would remedy this easily. All counsel need do is state in the brief that there does exist a potentially meritorious issue for appeal, but that his client has waived the argument. Counsel can then proceed to explain why other issues are frivolous.

The defendant then has the opportunity to acknowledge that he has waived the potentially meritorious issues, and to make his case why some other ground for appeal that he does wish to pursue is not frivolous.

The court can then perform its constitutionally required role — deciding whether the defendant’s claim of error is frivolous or not.

Finally, it should be noted that, in both the Nov. 17 opinion, and this one, the court noted that it routinely accepts “partial no-merit briefs,” although the State Public Defender disagrees. Accordingly, notwithstanding the court’s holding that there is no right to a “partial no-merit brief,” attorneys may still file them.

– David Ziemer

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David Ziemer can be reached by email.