Criminal Procedure — ineffective assistance — no-merit reports

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Wisconsin Supreme Court

Criminal

Criminal Procedure — ineffective assistance — no-merit reports

Where the defendant’s guilty plea colloquy was clearly defective, and postconviction counsel was defective for failing to raise the issue, the defendant’s appellate rights are reinstated.

“In sum, the court of appeals did not intend to leave the defendant without a remedy. The court of appeals had discretion to remand the matter to the circuit court for the defendant to file a new motion, an amended motion or a motion for reconsideration, despite the fact that the defendant’s claim relating to the waiver of a jury trial was not properly preserved in the initial postconviction motion. The court of appeals chose not to so exercise its discretion, but the discretionary decision rested on a mistake of law.”

“The court of appeals’ error undermined its crucial assumption that the defendant would have some avenue available for possible relief. The court of appeals’ opinion and order had the unintended effect of denying the defendant any opportunity to be heard despite a trial court colloquy deficient on its face and an error by postconviction counsel.”

“For these reasons, we reverse the opinion and order of the court of appeals and remand the matter to the court of appeals to reject the no-merit report, reinstate the defendant’s direct appeal rights, and remand the matter to the circuit court for counsel to file a new or amended motion for postconviction relief. See Wis. Stat. §§ (Rules) 809.30, 809.32, 809.82(2).”

Reversed and Remanded.

2010AP1391-CRNM State v. Sutton

Abrahamson, C.J.

Attorneys: For Appellant: Ball, Colleen, Milwaukee; Lamb, Kaitlin A., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Remington, Christine A., Madison