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Defendant did not OK any action

By: dmc-admin//September 20, 2006//

Defendant did not OK any action

By: dmc-admin//September 20, 2006//

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SCR 20:1.2:

“A lawyer shall abide by a client’s decisions concerning the objectives of representation.”

It would violate the rules of professional responsibility for an attorney to file a no-merit brief against the client’s express instructions, the Wisconsin Court of Appeals held on Sept. 13.

As a result, the court declined to reinstate the client’s appellate rights, even though the attorney filed only a motion to withdraw unaccompanied by a no-merit brief.

Perry Van Hout pleaded guilty in 1995 to two counts of sexual contact with a child under 13. Mar-garet Maroney was appointed to represent Van Hout on appeal by the State Public Defender.

Maroney concluded that there were no meritorious issues for appeal, but Van Hout wanted to appeal. Van Hout would not consent to proceeding pro se or retaining counsel on his own, nor would he consent to Maroney’s filing a no-merit brief, or to her closing his case file without action.

In 1996, Maroney filed a motion to withdraw, stating that she had explained Van Hout’s options, and that he had declined them all, including a no-merit report. Van Hout did not respond, having refused to accept delivery of the motion.

What the court held

Case: State of Wisconsin ex rel. Van Hout v. Endicott, No. 2004AP1192-W

Issue: Is a defendant entitled to reinstatement of his appellate rights if his attorney moved to withdraw without filing a no-merit brief?

Holding: No. Where the defendant instructed his attorney not to file a no-merit brief, and refused to accept a copy of the attorney’s motion, he forfeited his right to appeal.

Counsel: For Appellant: Henak, Robert R., Milwaukee; For Respondent: Kratz, Kenneth R., Chilton; Freimuth, James M., Madison

The court of appeals granted the motion to withdraw, concluding that Maroney discharged her obligation to Van Hout by informing him of his options, and that Van Hout declined to exercise any of them. The court concluded that Van Hout’s failure to object was a concession that he wanted counsel to withdraw and that he would proceed pro se.

In 1997, Van Hout moved the court pro se to reinstate his appeal rights, but the court of appeals denied the motion.

In 2000, Van Hout filed a petitoin pursuant to State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992), claiming that the court should have required Maroney to file a no-merit report. The court of appeals denied this petition.

Van Hout, now represented by counsel, again filed a Knight petition, arguing that Van Hout was denied an appeal and assistance of counsel, contending that, pursuant to Speights v. Frank, 361 F.3d 962, 964 (7th Cir. 2004), counsel is required to file a no-merit report whenever counsel deems an appeal without merit, and the client declines to close the file.

The court of appeals denied the petition in a per curiam opinion.

The court held that an attorney may not file a no-merit report, when the client has been advised of his options, and directed the attorney not to do so, citing its opinion in State v. Divanovic, 200 Wis.2d 210, 546 N.W.2d 501 (Ct.App.1996).

In Divanovic, the court cited SCR 20:1.2 — “Scope of Representation” — which provides in relevant part, “A lawyer shall abide by a client’s decisions concerning the objectives of representation.”

The court there wrote, “The attorney-client relationship is one of agent to principal, and as an agent, the attorney must act in conformity with his or her authority and instructions and is responsible to the principal if he or she violates this duty.” Divanovic, 200 Wis.2d at 224-225.

Applying Divanovic to the case at bar, the court concluded, “Van Hout and Maroney consulted about his postconviction options, and Van Hout exercised his right to decline a no-merit report. Under Divanovic, Maroney was not free to ignore Van Hout’s wishes, and she properly put the issue before this court via a motion t
o withdraw.”

Emphasizing that Van Hout refused to exercise any of the three options available to him, the court concluded, “counsel acted reasonably and did not perform deficiently in moving to withdraw. Counsel had deemed an appeal without arguable merit, but Van Hout directed her not to file a no-merit report. Van Hout did not consent to closing the file, and he did not rescind his direction to counsel not to file a no-merit report. Under these circumstances, counsel properly moved to withdraw.”

The court then addressed several federal cases that have held on similar facts that a defendant was entitled to reinstatement of his appellate rights, but found them all distinguishable.

In Betts v. Lit-scher, 241 F.3d 594 (7th Cir. 2001), appellate counsel closed the file without filing a no-merit brief; the Seventh Circuit ordered that his appellate rights be reinstated, because there was nothing in the record to indicate the defendant had waived his right to appeal or his right to counsel.

Related Links

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Case Analysis

In Jones v. Berge, 246 F.Supp.2d 1045 (E.D.Wis.2003), the defendant disagreed with counsel’s decision to file a no-merit report, so the attorney closed the file. As in Betts, the federal court ordered his appellate rights reinstated.

Distinguishing the two cases, the court of appeals wrote, “Maroney moved to withdraw as counsel, thereby involving the court and giving Van Hout an opportunity to respond to the motion. He did not do so. Unlike Betts, the record in this matter reveals that Van Hout was advised of his options and the no-merit procedure.”

The court concluded that, by his conduct, Van Hout forfeited his right to counsel: “We understand and support the idea that every convicted defendant should have the right to an appeal. But we are nonetheless confident that a defendant, by actions designed to obfuscate and frustrate the judicial review process, can give up that right. Criminal defendants often disagree with appointed counsel’s decision to file a no-merit report precisely because they believe that, for whatever reason, they have a right to more from their appointed counsel. They do not.”

Accordingly, the court denied the petition.

Before concluding, the court added “Finally, a defendant cannot forbid appointed counsel from filing a no-merit report and then claim that counsel has abandoned him or her when counsel moves to withdraw from the representation. We will not allow a defendant to play games in order to get something that the defendant is not entitled to have or to engage in an endless go-round with this court over the course of postconviction proceedings. That is what is going on here, and we will not play that game.”

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