Defendant
did not OK any action
Attorney
told not to file no-merit brief
By
David Ziemer
david.ziemer@wislawjournal.com
Sept.
20, 2006
|
SCR
20:1.2:
“A
lawyer shall abide by a client’s decisions concerning the
objectives of representation.”
|
It
would violate the rules of professional responsibility for an
attorney to file a no-merit brief against the client’s express
instructions, the Wisconsin Court of Appeals held on Sept. 13.
As
a result, the court declined to reinstate the client’s appellate
rights, even though the attorney filed only a motion to withdraw
unaccompanied by a no-merit brief.
Perry
Van Hout pleaded guilty in 1995 to two counts of sexual contact
with a child under 13. Mar-garet Maroney was appointed to represent
Van Hout on appeal by the State Public Defender.
Maroney
concluded that there were no meritorious issues for appeal, but
Van Hout wanted to appeal. Van Hout would not consent to proceeding
pro se or retaining counsel on his own, nor would he consent to
Maroney’s filing a no-merit brief, or to her closing his
case file without action.
In
1996, Maroney filed a motion to withdraw, stating that she had
explained Van Hout’s options, and that he had declined them
all, including a no-merit report. Van Hout did not respond, having
refused to accept delivery of the motion.
|
What
the court held
Case:
State of Wisconsin ex rel. Van Hout v. Endicott, No. 2004AP1192-W
Issue:
Is a defendant entitled to reinstatement of his appellate
rights if his attorney moved to withdraw without filing
a no-merit brief?
Holding:
No. Where the defendant instructed his attorney not to file
a no-merit brief, and refused to accept a copy of the attorney’s
motion, he forfeited his right to appeal.
Counsel:
For Appellant: Henak, Robert R., Milwaukee; For Respondent:
Kratz, Kenneth R., Chilton; Freimuth, James M., Madison
|
The
court of appeals granted the motion to withdraw, concluding that
Maroney discharged her obligation to Van Hout by informing him
of his options, and that Van Hout declined to exercise any of
them. The court concluded that Van Hout’s failure to object
was a concession that he wanted counsel to withdraw and that he
would proceed pro se.
In
1997, Van Hout moved the court pro se to reinstate his appeal
rights, but the court of appeals denied the motion.
In
2000, Van Hout filed a petitoin pursuant to State v. Knight, 168
Wis.2d 509, 484 N.W.2d 540 (1992), claiming that the court should
have required Maroney to file a no-merit report. The court of
appeals denied this petition.
Van
Hout, now represented by counsel, again filed a Knight petition,
arguing that Van Hout was denied an appeal and assistance of counsel,
contending that, pursuant to Speights v. Frank, 361 F.3d 962,
964 (7th Cir. 2004), counsel is required to file a no-merit report
whenever counsel deems an appeal without merit, and the client
declines to close the file.
The
court of appeals denied the petition in a per curiam opinion.
The
court held that an attorney may not file a no-merit report, when
the client has been advised of his options, and directed the attorney
not to do so, citing its opinion in State v. Divanovic, 200 Wis.2d
210, 546 N.W.2d 501 (Ct.App.1996).
In
Divanovic, the court cited SCR 20:1.2 — “Scope of Representation”
— which provides in relevant part, “A lawyer shall abide
by a client’s decisions concerning the objectives of representation.”
The
court there wrote, “The attorney-client relationship is one
of agent to principal, and as an agent, the attorney must act
in conformity with his or her authority and instructions and is
responsible to the principal if he or she violates this duty.”
Divanovic, 200 Wis.2d at 224-225.
Applying
Divanovic to the case at bar, the court concluded, “Van Hout
and Maroney consulted about his postconviction options, and Van
Hout exercised his right to decline a no-merit report. Under Divanovic,
Maroney was not free to ignore Van Hout’s wishes, and she
properly put the issue before this court via a motion to withdraw.”
Emphasizing
that Van Hout refused to exercise any of the three options available
to him, the court concluded, “counsel acted reasonably and
did not perform deficiently in moving to withdraw. Counsel had
deemed an appeal without arguable merit, but Van Hout directed
her not to file a no-merit report. Van Hout did not consent to
closing the file, and he did not rescind his direction to counsel
not to file a no-merit report. Under these circumstances, counsel
properly moved to withdraw.”
The
court then addressed several federal cases that have held on similar
facts that a defendant was entitled to reinstatement of his appellate
rights, but found them all distinguishable.
In
Betts v. Lit-scher, 241 F.3d 594 (7th Cir. 2001), appellate counsel
closed the file without filing a no-merit brief; the Seventh Circuit
ordered that his appellate rights be reinstated, because there
was nothing in the record to indicate the defendant had waived
his right to appeal or his right to counsel.
In
Jones v. Berge, 246 F.Supp.2d 1045 (E.D.Wis.2003), the defendant
disagreed with counsel’s decision to file a no-merit report,
so the attorney closed the file. As in Betts, the federal court
ordered his appellate rights reinstated.
Distinguishing
the two cases, the court of appeals wrote, “Maroney moved
to withdraw as counsel, thereby involving the court and giving
Van Hout an opportunity to respond to the motion. He did not do
so. Unlike Betts, the record in this matter reveals that Van Hout
was advised of his options and the no-merit procedure.”
The
court concluded that, by his conduct, Van Hout forfeited his right
to counsel: “We understand and support the idea that every
convicted defendant should have the right to an appeal. But we
are nonetheless confident that a defendant, by actions designed
to obfuscate and frustrate the judicial review process, can give
up that right. Criminal defendants often disagree with appointed
counsel’s decision to file a no-merit report precisely because
they believe that, for whatever reason, they have a right to more
from their appointed counsel. They do not.”
Accordingly,
the court denied the petition.
Before
concluding, the court added “Finally, a defendant cannot
forbid appointed counsel from filing a no-merit report and then
claim that counsel has abandoned him or her when counsel moves
to withdraw from the representation. We will not allow a defendant
to play games in order to get something that the defendant is
not entitled to have or to engage in an endless go-round with
this court over the course of postconviction proceedings. That
is what is going on here, and we will not play that game.”
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