‘Partial
no-merit briefs’ not required
By
David Ziemer
Wisconsin Law Journal
August
16, 2006
| What
the court held Case:
State of Wisconsin ex rel. Ford v. Holm, No. 2002AP1828-W. Issue:
Is a defendant entitled to a “partial no-merit brief” when he waives his arguably
meritorious issues for appeal, but his counsel believes that the issues the defendant
wishes to pursue are frivolous? Holding:
No. Neither Rule 809.32, nor the constitution, requires a no-merit brief in those
circumstances. Counsel:
For Appellant: Troupis, James R., Madison; Means, Steven P., Madison; Pardon,
Edward J., Madison; Rybarik, Brian J., Madison; For Respondent: Freimuth, James
M., Madison; Sharp, Wm. Andrew, Richland Center |
A
defendant has no right to a “partial no-merit brief” when he declines
to pursue his only potentially meritorious issues, the Wisconsin Court of Appeals
held on Aug. 10.
In
1998, Richard A. Ford was convicted of sexual assault and sentenced to 20 years
in prison. Although his appellate counsel thought a motion for plea withdrawal
was potentially meritorious, Ford did not want to pursue the motion, because it
could expose him to an even longer sentence.
Counsel
did not file an appeal or a no-merit brief, although Ford believed he had a meritorious
sentencing issue for appeal.
Ford
then filed a petition in the court of appeals, claiming ineffective assistance
of appellate counsel. The court obtained pro bono counsel to represent Ford, and
ultimately held that counsel was not ineffective, in a published decision. Ford
v. Holm, 2004 WI App 22, 269 Wis.2d 810, 676 N.W.2d 500.
However,
the court remanded the case to circuit court to determine whether Ford knowingly
and voluntarily waived his right to appeal or be represented by counsel.
The
circuit court found that he knowingly waived his right to appeal the guilty plea
issue. Ford again sought a writ of habeas corpus in the court of appeals.
The
State conceded error, and on Nov. 17, 2005, the court of appeals held that Ford
was entitled to have a no-merit report filed with respect to the sentencing issue.
However,
after the State Public Defender moved to intervene and requested reconsideration,
the court withdrew its opinion.
After
reconsidering the issue, the court held that Ford was not entitled to a partial
no-merit brief, in a decision by Judge David G. Deininger.
Concluding
that “our prior analysis was flawed,” the court noted that nothing in
Rule 809.32 mandates, or even expressly authorizes, a partial no-merit procedure.
In
addition, the court found that a no-merit report is not constitutionally mandated
by Anders v. California, 386 U.S. 738 (1967).
The
court wrote, “The Supreme Court has explained that the procedure it described
in Anders is but an example of a ‘prophylactic’ procedure that a state
may, but is not required to, follow in order to satisfy due process and equal
protection concerns when appointed postconviction counsel concludes a given record
provides no grounds for postconviction relief (citing Smith v. Robbins, 528 U.S.
259, 265 (2000).”
In
Robbins, the Supreme Court upheld California’s “Wende procedure,”
and called it “better than” Wisconsin’s, in some ways. Pursuant
to the Wende procedure, counsel must attest that he or she has reviewed the record
and explained counsel’s evaluation of the case to the defendant. Counsel
must then summarize the procedural and factual history of the case for the reviewing
court, without identifying or discussing any issues or expressing any view as
to the merits of the case.
In
upholding this procedure the U.S. Supreme Court explained that this procedure
avoids the ethical tension inherent in Wisconsin’s procedure, in which counsel
must both raise and then deflate potential issues.
Applying
Robbins, the court of appeals wrote, “Ford’s constitutional right to
effective representation for the purpose of exercising his right to directly appeal
his 1998 conviction did not require his postconviction counsel to offer him the
option of a ‘partial no-merit’ report on any potential issues remaining
after Ford declined for strategic reasons to pursue an issue having arguable merit.
The Supreme Court explained in Robbins that the U.S. Constitution requires only
that ‘an indigent’s appeal will be resolved in a way that is related
to the merit of that appeal,’ Robbins, 528 U.S. at 276-77, and, further,
that an indigent’s constitutional right is ‘to have an attorney, zealous
for the indigent’s interests, evaluate his case and attempt to discern nonfrivolous
arguments,’ Id. at 278 n.10.”
Accordingly,
the court denied Ford’s writ.
Before
concluding the court noted that competing professional considerations weigh against
the filing of a partial no-merit reports.
The
court wrote, “As the Supreme Court recognized in Robbins, an attorney may
well have legitimate ethical qualms about filing a no-merit report under Wis.
Stat. Rule 809.32, even when such a report is clearly required by the rule. We
conclude that it cannot therefore be a violation of ‘professional norms’
to not file a no-merit report when one is not clearly required by the rule or
by the Constitution.”
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David
Ziemer can be reached by email.
