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Discourage clients from no-merit option

Amelia L. Bizzaro

Amelia L. Bizzaro

Last month I discussed when appointed counsel should give the required no-merit advice.

But what should attorneys do when clients ask the inevitable question: “What do you think I should do?” On the whole, attorneys should discourage clients from choosing the no-merit report option.

Six months ago, Justice Prosser authored the decision in State v. Allen, 2010 WI 89. That changed the landscape of Wis. Stat. §974.06 motions, due, in part, to Allen’s decision not to respond to a no-merit report. The take away from the decision is that attorneys should discourage clients from filing no-merit reports whenever possible. If clients insist, attorneys should encourage them, in the strongest language possible, to file a response and list every single thing that ever crossed their minds as a possible claim.

A 974.06 motion, commonly referred to as a collateral attack, is a post-conviction motion that allows prisoners to move to vacate, set aside or correct a sentence because the sentence was imposed unconstitutionally, the court does not have jurisdiction, or the sentence is greater than the maximum allowable. Wis. Stat. §974.06(1). It can be made at any time, but inmates cannot raise issues that were previously litigated or could have been litigated unless they can demonstrate “sufficient reason” for not raising the issues before. Wis. Stat. §974.06(4).

In the seminal procedural bar case, State v. Escalano-Naranjo, 185 Wis.2d 168, 517 N.W.2d 159 (1994) the Court held that claims that could have been raised on direct appeal or in a previous §974.06 motion are barred from being raised in a subsequent §974.06 post-conviction motion absent a showing of a sufficient reason for why the claims were not previously raised.

But what does this all have to do with persuading clients not to file no-merit reports? In Allen, the question was whether a defendant is barred from raising issues in his 974.06 post-conviction motion because he failed to raise them in a response to a no-merit report. The Court concluded that while defendants are not required to respond to no-merit reports, a failure to respond can prevent a defendant from raising any issues he could have mentioned in his response, in a later 974.06 motion.

A no-merit report, the Court held, is a prior motion as contemplated by §974.06(6). It is a direct appeal, albeit a different kind of direct appeal. The purpose of §974.06, the Court said, is to avoid successive motions on the same issues. If there was no prior direct appeal, which includes no-merit reports, then there is nothing to avoid. A defendant cannot raise issues that could have been raised in the no-merit appeal without showing sufficient reason why the issues were never raised.

And while a failure to respond to a no-merit report is not per se fatal, a defendant who does not respond is not the same as a defendant who never had a direct appeal. If a defendant never filed a direct appeal (i.e., picked the “take no action” option included in the required no-merit advice), then he “is not burdened with the requirement of giving a sufficient reason why the claims being raised where not raised before.” Allen at ¶40.

I do not give the Allen decision justice here. It is a long and important decision with important consequences to defendants that attorneys should pore over before counseling clients after delivering the no-merit advice. But given the bright-line rule adopted by the Court that no-merit reports are prior motions and the Escalano bar applies, then appointed attorneys must discourage clients from filing no-merit reports. Better the clients file a 974.06 motion with or without the assistance of counsel at a later date. At least then, clients will not have to demonstrate sufficient reason to be heard.

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 abizzaro@bizzarolaw.com.

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