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Court of Appeals is forum for ineffective claim

By: dmc-admin//August 18, 2008//

Court of Appeals is forum for ineffective claim

By: dmc-admin//August 18, 2008//

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An Aug. 7 opinion from the Wisconsin Court of Appeals offers guidance in the confusing realm of ineffective assistance of appellate counsel claims.

In so doing, the court reaffirmed that a habeas corpus petition in that court may be an appropriate vehicle for raising such a claim in some cases.

Jarrad T. Panama pleaded no-contest pursuant to a plea agreement. The agreement provided, “There are no agreements as to sentencing but the State will be requesting prison left to the court’s discretion.”

At sentencing, however, the prosecutor asked for a 10-year prison sentence, which the circuit court imposed. Panama’s trial attorney did not object to the recommendation as a breach of the plea agreement.

Appellate counsel then filed a no-merit report that did not address whether the prosecutor violated the agreement. The Court of Appeals accepted the no-merit report, without addressing the issue, and summarily affirmed the conviction.

Appellate counsel then became aware of the possibility that the agreement was breached by the prosecutor, and sought relief in the Court of Appeals, which construed the request as a habeas corpus petition.

The court directed the parties to brief whether it had authority to grant the relief sought, and, in a per curiam opinion, concluded that it did.

The court began with a review of authority it acknowledged was inconsistent.

In State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992), the Wisconsin Supreme Court held that a habeas corpus petition filed in the Court of Appeals is the proper vehicle for raising a claim of ineffective assistance of appellate counsel (a Knight petition).

However, in State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 556 N.W.2d 136 (Ct.App.1996), the Court of Appeals held that a Knight petition to the Court of Appeals was not the appropriate procedure to challenge appellate counsel’s failure to raise a claim that trial counsel was ineffective, where the issue had not first been preserved by a postconviction motion in the trial court.

Then, in State v. Tillman, 2005 WI App 71, 281 Wis.2d 157, 696 N.W.2d 574, the Court of Appeals held that a prior no-merit appeal may bar a subsequent sec. 974.06 proceeding, provided the no-merit procedures were followed and the court has a “sufficient degree of confidence” in the prior proceeding to warrant application of the bar.

Finally, in State v. Fortier, 2006 WI App 11, 289 Wis.2d 179, 709 N.W.2d 893, the court held that a defendant was not barred from raising an arguably meritorious issue in a sec. 974.06 motion, where the no-merit procedures were not properly followed, in that his appellate counsel failed to identify an arguable issue.

After reviewing the cases, the court observed, “the cases collectively create much confusion and delay. Common sense suggests that all claims of ineffective assistance of counsel, including appellate counsel, be initially addressed in the circuit court. This cannot be done, however, without overruling or modifying either Knight or Rothering, which this court cannot do.”

Considering Panama’s claim in light of the conflicting authority, the court concluded that it had authority to grant the relief sought.

The deciding factor, the court concluded, is that it is the Court of Appeals’ no-merit decision that Panama is seeking to overturn and have his postconviction rights reinstated.

Thus, the Court of Appeals is the proper court to address the motion.

Nevertheless, the court remanded the case to the circuit court because a factual record is required on whether there was in fact a breach of the plea agreement, and whether the trial counsel may have had a strategic reason for not arguing that there was.

CASE ANALYSIS

In light of the court’s decision, there are two ways in which a defendant can raise the issue of ineffective assistance of appellate counsel in failing to raise ineffectiveness on the part of trial counsel — in the circuit court via sec. 974.06 or in the Court of Appeals via a Knight petition.

It appears, however, that the court would prefer that the Supreme Court made the circuit court the only venue.

The court wrote, “nearly all potentially meritorious Knight petitions are subjected to a cumbersome trifurcated process in which they are first submitted to this court, then referred to the circuit court for an evidentiary hearing, and then returned to this court for a decision based upon the factual findings of the circuit court. The result is a significant delay in the very cases in which relief is most likely warranted.”

The court added that the result of the different forums is “numerous misdirected ineffective assistance claims both to this court and the circuit court. Again, this results in significant delays which might be avoided if there were a single, more easily understood procedure in place.”

In an interview with Wisconsin Law Journal, Philip J. Brehm, of Janesville, who represented Panama, stated that he did not think the case was nearly as complicated as the court made it.

Brehm is correct; it wasn’t that complicated. The court could easily have issued a cursory opinion, finding that it had jurisdiction over the case, and remanding it to the circuit court for factfinding.

The court’s opting to go to great lengths to survey the law in this area, and calling it “cumbersome” and “confusing” should be heeded. The Supreme Court and assorted interests, such as the DOJ and the criminal defense bar, should work together to draft clear rules governing the proper forum and procedures when the issue of ineffective assistance of appellate counsel is raised.

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