Defendants abandoned by counsel must figure out appeal rules on their own, State Supreme Court rules

By Margo Kirchner​

The Wisconsin Supreme Court said in two recent opinions that criminal defendants must meet the same standards as lawyers when appealing their cases if their actual lawyers abandon them before the appeal is filed.
 
That means incarcerated people fighting on their own behalf must meet the same deadlines and follow the same rules as lawyers even without access to the same resources, such as law books, paper, and online information.
 
In each of the two cases, the defendant told counsel he wanted to appeal, but counsel failed to file a required notice of intent to pursue postconviction relief, resulting in the loss of appeal rights.
 
Such a failure constitutes ineffective assistance of counsel. But in each case the Court held the defendant responsible for errors when acting on his own to restart his appeal.
 
Justice Rebecca Grassl Bradley joined with Justices Ann Walsh Bradley and Rebecca Dallet in strong dissents in both cases.

The dissenters – Justices Rebecca Bradley, Ann Walsh Bradley, and Rebecca Dallet

​State v. Pope
 
In the first case, after four days of trial, a jury in Milwaukee County Circuit Court convicted Robert James Pope of first-degree intentional homicide as a party to the crime. In early July 1996, the court sentenced Pope to life imprisonment without parole.
 
Immediately after sentencing, Pope and his attorney, Michael Backes, signed a form indicating that Pope intended to pursue postconviction relief and that counsel would file a formal notice of the same within 20 days. Filing the formal notice sets in motion preparation of the trial transcript and appointment of appellate counsel. But Backes never filed the notice, and Pope’s direct appeal rights expired.
 
Pope and his mother tried repeatedly, without success, to reach Backes by phone to ask about the appeal.
 
About a year later, in August 1997, Pope contacted the State Public Defender’s Office to inquire about his appeal. The SPD told Pope there was no appeal, the office had no idea why the formal notice was never filed, and Pope could ask the court to extend the time for filing the notice.

Pope the asked the Wisconsin Court of Appeals to extend the deadline. Pope explained that Backes said he would file a notice but did not and that Pope was unfamiliar with how to initiate an appeal.

​In September 1997 the court of appeals denied Pope’s motion. According to that court, Pope failed to sufficiently explain why he did not seek to start postconviction proceedings on his own for 15 months. (The court was incorrect as to timing, as Pope filed his motion less than 14 months after the deadline expired.)
 
Pope attempted to start an appeal several more times, filing motions to reinstate his appeal rights because trial counsel was ineffective, for waiver of transcript fees, and to extend the time to file a postconviction motion. All motions were denied, most pointing back to the alleged 15-month delay.
 
In July 2014, Pope petitioned for writ of habeas corpus in the court of appeals, arguing that his direct appeal rights should be reinstated because trial counsel was ineffective for not filing the notice back in July 1996. The court of appeals referred the petition to Milwaukee County Circuit Court for findings of fact. Following various findings by Judge Jeffrey Conen, the state stipulated to reinstating Pope’s direct appeal deadlines. In October 2016, 20 years after his conviction, Pope filed the required notice of intent to pursue postconviction relief and ordered trial transcripts for the first time.
 
Pope obtained transcripts of his preliminary hearing and sentencing, but by the time he placed his order, no court reporter records remained from his trial. Under court rules, those records may be destroyed after 10 years.
 
In March 2017 Pope asked Conen for a new trial, arguing that the lack of a trial transcript denied him his constitutional rights to appeal and to due process. Conen agreed and ordered a new trial. The Court of Appeals reversed. 

In two earlier cases, the Wisconsin Supreme Court had created a procedure for situations where the trial transcript is incomplete. To succeed in such instances, the defendant must claim that some reviewable, prejudicial error occurred in the portion of the trial for which the transcript is missing. If the defendant meets that standard, the court attempts to reconstruct the record using evidence such as affidavits or a joint statement from the parties. If reconstruction is impossible, prejudice is presumed and the appellant gets a new trial.
 
In the cases underlying creation of this procedure, 15 minutes of trial testimony was lost in one case and about one day of testimony was lost in the other.
 
Pope’s appellate attorney argued to the Supreme Court that the unavailability of the entire trial transcript in Pope’s case prevented her from determining, let alone showing, that arguably prejudicial error occurred. Requiring her to assert a facially valid claim of error conflicted with her ethical obligation not to advance unwarranted arguments, she said. She argued that prejudice should be presumed when the entire transcript is unavailable.

Justice Annette Kingsland Ziegler, writing for the Court, refused to presume prejudice and required Pope to argue specific error and prejudice.  The Court found nothing “extraordinary” about “requiring the defendant to take the laboring oar even when the entire transcript is unavailable.”
 
Moreover, the Court found that Pope’s transcript was unavailable due to his own delay. Echoing the court of appeals decision from 1997, the Court found that Pope “sat on his rights for 14 months after the notice of intent was due.”
 
Pope could have immediately moved for an extension of the deadline after it passed in July 1996 yet waited until September 1997 to request an extension, Ziegler wrote. Though counsel’s failure to file the notice of intent “was inexcusable,” it was not an excuse for Pope to miss the extension request deadline.  “Pro se litigants, though acting without counsel, are still required to timely assert their rights.”
 
Further, she said, Pope could have ordered the transcript on his own during the 10 years following his trial.
 
In a dissent almost as lengthy as the majority opinion, Rebecca Bradley, writing for the dissenters, lambasted the Court’s decision: “Compounding the calamity of errors that deprived Pope of his direct appeal, the majority casts aside constitutional and statutory rights, misapplies cases, and wrongfully blames Pope for his attorney’s errors.” 

Ziegler

She continued:
 
[T]he majority absurdly holds convicted prisoners to the same standards as trained lawyers. The Constitution grants criminal defendants the right to a meaningful direct appeal, aided by counsel. The majority pays lip service to these rights but then violates them. According to this court, if appointed counsel abandons his client and forfeits his appeal, then the criminal appellant must proceed on his own, without any counsel at all. If he does not follow the rules closely enough or within whatever unspoken period of time the court believes appropriate for deciphering the rules of appellate procedure, the appellant is simply out of luck. The Constitution does not countenance such a perversion of the criminal justice system.
 
Rebecca Bradley recognized that Pope and his appellate counsel were “completely precluded from identifying any colorable claim because they have no transcripts to review.”
 
The majority fundamentally erred in blaming Pope, rather than the courts and the state, for the destruction of the trial transcripts, Rebecca Bradley said. “If the courts or the state grasped the deprivation of Pope’s constitutional rights during any of Pope’s multiple attempts to restore his direct appeal rights, the transcripts could have been obtained.” 

​Rebecca Bradley concluded that while some may celebrate an individual convicted of homicide remaining confined, “[a]chieving a preferred result should never override constitutional rights. The price of the majority’s decision in this case is paid not just by Pope, but by all of the citizens of this State. Pope’s conviction stands, unreviewed, at the expense of constitutional guarantees designed by the framers to protect the innocent, not free the guilty.”

"The majority casts aside constitutional and statutory rights, misapplies cases, and wrongfully blames Pope for his attorney’s errors.”  – Justice Rebecca Bradley

State ex rel. Wren v. Richardson
 
When Joshua Wren accidentally shot and killed someone in 2006, he was just 15 years old and read at a second-grade level. He pled guilty in Milwaukee County Circuit Court to reckless homicide and in March 2007 was sentenced to 21 years of initial confinement and nine years of extended supervision. The sentence was significantly longer than the term recommended in the presentence investigation report (PSI) or argued by Wren’s attorney, Nikola Kostich.
 
Kostich, too, never filed the required notice of intent to seek postconviction relief, which would have triggered Wren’s appellate rights.
 
Between 2010 and 2016 Wren filed four pro se motions. He sought to vacate his DNA surcharge, amend the judgment regarding restitution, obtain a copy of his PSI, and obtain sentence modification. All motions were denied, though the court clarified Wren’s restitution order.
 
In 2017, Wren petitioned the Court of Appeals for a writ of habeas corpus. He alleged ineffective assistance by Kostich for failing to appeal, and he sought to reinstate his direct appeal rights. The Court of Appeals directed the Milwaukee County Circuit Court to conduct a fact-finding hearing, at which Wren and three family members testified. The State presented no evidence, as Kostich had died in 2014 and none of his files were located.
 
Judge Carolina Stark found that Wren contacted Kostich about appeal in a timely manner, Kostich told Wren and Wren’s family members that he would appeal, Wren and his relatives all wrote Kostich regarding the status of the appeal but never heard back, and Kostich intentionally led Wren to believe he would file the required notice but failed to do so and notified no one.
 
Stark also found that Wren knew by sometime in 2010 or 2011 that no appeal had been filed but that Wren was unaware that he could petition to reinstate his direct appeal rights. When Wren eventually learned what to do, he filed his habeas petition within four months.
 
Following Stark’s findings of fact, the case returned to the Court of Appeals, where the state pled “laches,” a doctrine that denies relief to those who sleep on their rights to the detriment of the opposing party.
 
The appeals court agreed with the state and applied the doctrine. ​

Hagedorn

The Supreme Court affirmed.  Justice Brian Hagedorn, writing for the Court, found that Wren had no good reason for waiting six years after learning that no appeal existed to file his habeas petition.
 
Wren argued that he did not know how to make a habeas claim during that time, but Hagedorn said that laches is based on constructive knowledge – what a litigant might have known with the exercise of reasonable diligence. According to Hagedorn, nothing prevented Wren from contacting another attorney or researching his available options.
 
Further, Hagedorn wrote: “It surely cannot be that 20-year-olds (Wren’s approximate age when he found out no appeal was forthcoming) are deemed incompetent. And while the PSI noted Wren had a second grade reading level at the time of sentencing, that detail alone does not mean he cannot research, consult others, and find out what needs to be done.”
 
Wren contended that because his postconviction attorney abandoned him, any delay was the state’s fault rather than his. Hagedorn rejected the argument, pronouncing that “[p]ro se litigants, including those who claim their trial counsel did not serve them by filing an appeal, still have an independent obligation to timely raise these issues with the court on their own.”
 
In dissent, Ann Walsh Bradley wrote that Wren’s delay was reasonable and that under U.S. Supreme Court precedent the fault for the delay must be imputed to the state. According to Ann Walsh Bradley, who was joined by Rebecca Bradley and Dallet, the state bore responsibility to provide Wren with counsel and failed to do so. “If the justice system worked as it should have, Wren would not have been pro se in the first place,” she wrote.
 
Further, said Ann Walsh Bradley, the court of appeals erroneously exercised its discretion by giving “short shrift” to the prejudice suffered by Wren.
 
“[T]he equities clearly favor Wren and militate against the application of laches,” she concluded.