The no-merit report procedure laid out in WIS. STAT. (RULE) 809.32 applies only to appointed counsel on direct appeal. The process can be confusing, but when to start it should not be.
The no-merit procedure is launched only when counsel determines there are no meritorious issues for appeal. This does not mean counsel cannot find any winnable issues, just no issues. The problem is that counsel often interprets the test to be just that – no winnable issues, which results in counsel giving the no-merit advice inappropriately.
No-merit advice informs clients of three choices: (1) have counsel file a no-merit report; (2) have counsel close the file without taking any action; or (3) have the attorney close the file so that the client proceed either pro se or with retained counsel.
These choices have serious repercussions. A no-merit report is counterintuitive the adversary counsel role and requires counsel to argue why a client’s case is frivolous. Once filed, clients can respond and that response will affect a client for years to come. Recently, the Wisconsin Supreme Court held that a defendant cannot raise issues in a sec. 974.06 post-conviction motion that he could have raised in response to a no-merit report. State v. Allen, 2010 WI 89, ¶4, 786 N.W.2d 124, __ Wis.2d ___. As a result, what a client says, or more importantly does not say, will impact any future litigation.
The other choices force a client to forfeit his constitutional right to appeal, navigate appellate procedure on his own, or hire private counsel.
Given the real and serious implications of giving the no-merit advice, counsel must apply the right standard for giving the advice. If counsel identifies a single meritorious issue, then counsel’s job is to take the issue to the client and explain the strengths and weaknesses of the claim and the possible consequences of winning and losing. If the client declines to go forward, then a no-merit report cannot be filed. If the client decides to go forward, then counsel must litigate the claim. It is the attorney’s job to identify the issue and the client’s job to decide whether to go forward.
The attorney cannot end run the client’s role by giving the no-merit advice when the attorney has decided the issue is unwinnable. If there are any issues at all, no matter their strength, then counsel cannot give the no-merit advice.
Amelia L. Bizzaro is the principal at Bizzaro Law LLC and dedicates her practice to state and federal post-conviction and appellate work. She is on the board of directors for the Wisconsin Association of Criminal Defense Lawyers, a member of the state bar’s appellate practice section and is co-chair of the Milwaukee Bar Association’s Bench/Bar Court of Appeals Committee. The Wisconsin Law Journal named her one of 2010’s Up and Coming Lawyers. She can be reached at firstname.lastname@example.org.