• Briefs -- § 809.19, Briefs and Appendix
  • Appendix -- Composition
  • Argument -- Must be Supported by Authority
  • Citing Unpublished Opinions
  • Factual Recitation
  • Issue-Selection
  • Response / Reply Brief Failure to Address Argument
  • Vituperative Tone
• Commencing / Notice of Appeal
  • CHIPS
  • Criminal
  • Cross-Appeal
  • Filing in County of Origin Rather than Assigned Judge's County
  • Finality of Order
  • Notice of Appeal
    • Contents
    • Faxed NOA
    • Unsigned NOA
  • Prison "Mailbox Rule"
  • TPR (by GAL)
  • Traffic
• Counsel
  • Right to Choice of Counsel
• Interlocutory Appeal
  • Bindover (by Court Commissioner)
  • Double Jeopardy Issue
  • Issue / Claim Preclusion as Basis
  • Timeliness
• John Doe Review
• No-Merit Report
• Mootness
• Ordinance Violation
• PCM's
  • Collateral Attack, § 974.06 (Serial Litigation Bar)/ Interest of Justice
  • Defendant's Presence
  • Discovery (including DNA testing under § 974.07)
  • Evidentiary Hearing
  • Name Change, JOC
  • Reconsideration, Motion for
  • Reconstruction of Missing Record/Evidence
  • Relief from Judgment, § 806.07
  • Sealed File
  • Sentence Modification
• Petition for Review
  • Expired deadline -- Extend by Habeas
  • Prison Mailbox Rule
• Record on Appeal
• Sanctions (see also Counsel -- Sanctions)
• Supreme Court Review
  • Scope, on Certification
• Voluntary Dismissal
• Waiver of Right to Appeal

• Affirmance of Lower Court on Alternative Theory
• Appeal -- Forfeited by Flight
• Double Jeopardy / Multiplicity
• Judicial Estoppel (see also Constitution -- Double Jeopardy -- Multiplicity -- Judicial Estoppel Bar)
• Motion in Limine
  • Closing Argument
  • Contemporaneous Objection (Need for Obviated)
  • Evidence Introduced by Defendant after Unsuccessful MiL
• Plea Bargain Breach

• Generally
• Administrative Body
• Binding Authority
  • Caselaw Precedent / Dicta
  • Foreign Authority
  • Law of the Case
  • Mandate of Appellate Court
  • Retroactivity
  • Stare Decisis
• Burden of Proof
• Certiorari
• Civil Commitments (TB/NGI / SVP)
• Competency of Defendant
• Competency of Trial Court
• Confession
• Confrontation
• Constitutional Challenge to Statute
• Counsel
  • Assertion / Waiver
  • Ineffective Assistance
  • Sanctions
• Detainers
• Discovery
• Double Jeopardy
• Evidence
  • Admissibility
  • Chain of Custody
  • Confidential Material
  • Cross-Examination
  • Hearsay
  • Privilege
  • Right to Present Defense
  • Sufficiency
• Foreign Law
• Guilty Plea
• Habeas Petition
• Harrison-Middleton Hearing
• Implicit Findings of Fact
• Interest of Justice
• Intrastate Detainer
• John Doe Proceeding
• Judicial Bias
• Jury
  • Instructions / Questions
  • Selection
• Juvenile Delinquency
• Mistrial
• Newly Discovered Evidence (Also see here.)
• Open Records
• Postconviction Litigation
• Preclusion (Claim / Issue)
• Preliminary Hearing Bindover
• Public Trial
• Reasonableness
• Restitution
• SCR (Supreme Court Rule)
• Search & Seizure
• Sentence / Probation / Reconfinement
• Self-Incrimination / Miranda Waiver
• Speedy Trial
• Standing (to Sue)
• TPR
• Venue

¶17      Article I, Section 21(1) of the Wisconsin Constitution and Wis. Stat. § 808.03(1) guarantee a person convicted of a crime in Wisconsin the right to appeal his or her conviction to the court of appeals. The United States Supreme Court has held that a person appealing his or her conviction has a Sixth Amendment right to counsel on the first appeal, Douglas v. California, 372 U.S. 353, 356-57 (1963), and that this right includes the right to effective assistance of counsel. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985). 

¶2 A person convicted in Wisconsin of committing a crime has a constitutionally guaranteed right to appeal his or her conviction to this court. WIS. CONST. art. I, § 21(1); State v. Perry, 136 Wis. 2d 92, 98, 401 N.W.2d 748 (1987). The right to an appeal includes the right that “the appeal be a meaningful one.” Id. at 99. An indigent defendant is constitutionally entitled to the appointment of counsel at public expense for the purpose of prosecuting his or her “one and only appeal ... as of right” from a criminal conviction. Douglas v. California, 372 U.S. 353, 357-58 (1963); State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 648, 579 N.W.2d 698 (1998).¹ The State Public Defender (SPD) contends, and no party disputes, that criminal defendants in Wisconsin also enjoy a state constitutional right to represent themselves on appeal if they knowingly and voluntarily make that choice and are competent to do so. It cites WIS. CONST. art. I, § 21(2), as the source of this right and our opinion in Havlinka v. Blunt, Ellis, & Loewi Inc., 174 Wis. 2d 381, 394-95, 497 N.W.2d 756 (Ct. App. 1993) as supporting it.

---

¹ The right of an indigent defendant to have counsel provided at public expense for purposes of a first appeal as of right from a state criminal conviction appears to be grounded in the due process clause of the Fourteenth Amendment, rather than in the Sixth Amendment, which applies to “criminal prosecutions.” See Douglas v. California, 372 U.S. 353, 357-58 (1963); but see McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 436 (1988) (“If a convicted defendant elects to appeal, he retains the Sixth Amendment right to representation by competent counsel ....”).

We note that neither Russell’s nor Buske’s appellate counsel properly cite to the record. Record cites are often missing. An appellate court is improperly burdened where briefs fail to consistently and accurately cite to the record. Meyer v. Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957). Even more troubling is that both appellate counsel failed to include in the appendix all “the findings or opinion[s] of the circuit court … including oral or written rulings or decisions showing the circuit court’s reasoning regarding those issues,” as required by Wis. Stat. Rule 809.19(2)(a) (2007-08). We had to sift through the voluminous record to find the trial court’s rulings on some of the issues on appeal. We impose a fine of $150 on Buske’s appellate counsel and a fine of $150 on Russell’s appellate counsel. See State v. Bons, 2007 WI App 124, ¶¶21-25, 301 Wis. 2d 227, 731 N.W.2d 367. Both fines are payable to the clerk of this court within thirty days of the release of this opinion. See id., ¶25.

¶11      As a final matter, we observe that the appellant’s appendix fails to include the trial court’s reasoning. It is essential that the appendix include the record items truly relevant and essential to understanding the issues raised, particularly the trial court’s oral ruling. State v. Bons, 2007 WI App 124, ¶23, 301 Wis. 2d 227, 731 N.W.2d 367. Counsel for the appellant is sanctioned $150 for providing a false appendix certification and providing a deficient appendix. Id., ¶25. Counsel shall pay $150 to the clerk of this court within thirty days of the release of this opinion.

¶23      Applying the plain language of the rule, Gorokhovsky’s certification of compliance is false. His appendix contains only a copy of the judgment of conviction, the notice of motion and motion to suppress, and the notice of intent to pursue postconviction relief. How these documents in any way inform this court about the trial court’s determinations “essential to an understanding of the issues raised,” we do not know. A judgment of conviction tells us absolutely nothing about how the trial court ruled on a matter of interest to the appellant. A notice of motion and motion to suppress and the notice of intent to pursue postconviction relief are meaningless to the discussion of the issues at bar. Here, the trial court provided extensive oral decisions on the issue of whether Ramstack properly detained Bons and the question of whether Bons voluntarily consented to the searches of his vehicle or trunk. Both of these oral decisions were “essential to an understanding of the issues raised.” Neither were in the appendix. Yet, Gorokhovsky certified that the essential items were in his appendix. They were not. Therefore, his certification is false. In fact, no items essential to our understanding of the issues were in his appendix.

¶24      Filing a false certification with this court is a serious infraction not only of the rule, but it also violates SCR 20:3:3(a) (2006). This rule provides, “A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal.” By attesting that he complied with the appendix rules when he did not, Gorokhovsky made such a false statement.

¶25      Gorokhovsky’s deficient appendix placed an unwarranted burden on this court. Failure to comply with a requirement of the rules “is grounds for … imposition of a penalty or costs on a party or counsel, or other action as the court considers appropriate.” Wis. Stat. § 809.83(2) (2005-06). Accordingly, we sanction Gorokhovsky and direct that he pay $150 to the clerk of this court within thirty days of the release of this opinion.

The State moves to strike Williams' appendix to his brief. It asserts that the inclusion of excerpts from the BNA Criminal Practice Guide and copies of articles pertaining to drug analysis and crime labs are outside the scope of what is permissible in an appendix. Wisconsin Stat. § (Rule) 809.19(2) indicates that an appellant's brief "shall include a short appendix providing" certain enumerated items.

The State's position assumes that these enumerated items are to the exclusion of all others. We decline to give the rule such a restrictive interpretation. The Judicial Council Committee's Note to § (Rule) 809.19 provides that an appendix "is designed to be nothing more than a useful tool to the members of the court." Members of the court on occasion find materials such as those at issue here to be of some assistance. We note that Williams' appendix contains "portions of the record essential to an understanding of the issues raised" as required by the rule. Accordingly, we deny the motion to strike.

Nonetheless, we take this opportunity to remind litigants that the rule calls for a "short" appendix. It is the rare case where a lengthy appendix is more boon than bane.

We observe that Kliss, in his appellate brief, is inconsistent in his use of pinpoint citations for the case law he invokes to support his legal contentions. Wisconsin Stat. Rule 809.19(1)(e) requires the appellant to support its contentions with citations conforming to the Uniform System of Citation and Supreme Court Rule 80.02. A citation to a specific legal principle from case law shall include a reference to the page number, or paragraph number if a public domain citation is available, where the legal principle may be found. SCR 80.02(3). The rules of appellate practice are designed in part to facilitate the work of the court and such intermittent compliance with the rules improperly burdens the appellate court.

¶14      … The State concedes before this court, as it did in the court of appeals, that Johnson did not freely consent to the search of his vehicle. ^[4] …

---

 ^[4]  The dissent faults the State for making this concession. Dissent, ¶60 n.2. It also takes Johnson to task for not raising the issue of whether his consent was voluntarily given. Id. It asserts that, due to the State's concession, this court "must raise and decide the issue of consent to search Johnson's vehicle with no assistance to this court from either party." Id.
We note, however, that an attorney has an ethical obligation not to make arguments before the tribunal that the attorney believes to be frivolous. Compare SCR 20:3.1(a) with Wis.  Stat. § (Rule) 802.05. Cf. State v. Parent, 2006 WI 132, ¶19, ___Wis. 2d ___, 725 N.W.2d 915. Thus, even when a concession of law is not accepted by a court, a prosecutor should be commended, not condemned, for exercising careful judgment and attempting to conform to our rules. Of course, a concession of law does not bind the court. The court determines the law, not the parties. Bergmann v. McCaughtry, 211 Wis.  2d 1, 7, 564 N.W.2d 712 (1997). …

In an “argument” presented in one sentence, the defendants assert, without citation to authority, that if § 161.47, STATS., does not apply to them, “there is an equal protection under the law problem that will arise.” Arguments in appellate briefs must be supported by authority, RULE 809.19(1)(e) & (3)(a), STATS., and we need not consider arguments that do not comply, see State v. Pettit, 171 Wis. 2d 627, 646-647, 492 N.W.2d 633, 642 (Ct. App. 1992) (appellate court may decline to address issues that are inadequately briefed; arguments that are not supported by legal authority will not be considered). We thus do not address any alleged equal-protection issue.

¶21      … Further, appellate counsel cited an unpublished case in her opening brief, contrary to Wis. Stat. Rule 809.23(3). This does not appear to be inadvertent, since the citation ends with the parenthetical “(unpublished).” Our supreme court has reasoned that the rule against citing unpublished cases is essential to the reduction of the overwhelming number of published opinions and is a necessary adjunct to economical appellate court administration. Tamminen v. Aetna Cas. & Sur. Co., 109 Wis. 2d 536, 563, 327 N.W.2d 55 (1982). Unless and until the nonpublication rule is changed, violations of this rule will not be tolerated. See id. We therefore impose a $50 fine on Milanes’ appellate counsel and direct the sum to be paid to the clerk of this court within twenty days of the date this opinion is released.

…

This court is not so naïve as to believe that unpublished opinions, whether one-judge opinions, per curiam opinions or authored opinions sit in a file serving as dinner for book lice. [A tiny, soft-bodied wingless psocoptera, that actually feeds on molds and other organic matter found in ill-maintained works. See http://www.earthlife.net/insects/psocopta.html, last visited June 29, 2006 .] The ingenious methods members of the bench and bar employ to use unpublished opinions is well known to this court. …

The bench and bar must be guarded in their use of unpublished opinions because of the role of the Wisconsin Court of Appeals. …

Because an unpublished opinion is intended to be a one-time explanation to a limited audience, it will generally say almost nothing about the facts, because its intended audience—the parties and the lower court—are already familiar with the facts. Schiltz, supra, at 33. An appellate court’s holding cannot be understood outside of the factual context; without knowing the facts it is difficult to discern what an unpublished opinion actually held and easy for attorneys and judges to be misled. Id.

…

In rejecting the State Bar of Wisconsin’s petition to amend Wis. Stat. Rule 809.23 to permit citation to unpublished opinions for persuasive and informational purposes, our Supreme Court observed:

The court is also cognizant of the potential for unintended abuse inherent in the citation of unpublished appellate opinions for purposes other than those currently permitted. Trial courts and appellate courts might unwittingly give unpublished opinions more weight than that to which they are entitled, merely because they express the reasoning of an appellate tribunal on the same or similar issue. Moreover, courts might inadvertently give the appearance of improperly having relied on unpublished opinions as precedent for their holdings on the same issue. Erosion of the concept of precedent embodied in published decisional law is too great a price to pay for the sake of informing or persuading a court by means of opinions not designed for citation.

In re Amendment of Section (Rule) 809.23(3), 155 Wis. 2d 832, 834-35, 456 N.W.2d 783 (1990).

We recommend to the bench and bar that, if they insist on embracing the rationale of an unpublished opinion, they use the opinion as a starting line and not the finish line for their own independent research. Not only should they confirm that the authorities cited actually support the legal propositions in the unpublished opinion, they also should make sure that the authorities continue to represent a correct statement of the law. A member of the bench or bar who fails to independently develop his or her own legal rationale does so at his or her own peril.

Wisconsin Stat. Rule 809.23(3) does not prohibit us from citing unpublished opinions from other jurisdictions. Predick v. O'Connor, 2003 WI App 46, ¶12 n.7, 260 Wis. 2d 323, 660 N.W.2d 1, review denied, 2003 WI 32, 260 Wis. 2d 753, 661 N.W.2d 101 (Wis. Apr. 22, 2003) (Nos. 02-0503, 02-0504), cert denied, 124 S. Ct. 809 (U.S. Wis. Dec. 1, 2003) (No. 03-429). And the Seventh Circuit's rule on citation of its unpublished opinions only prohibits citation of an “unpublished opinion” as precedent in any federal court in that circuit. 7th Cir. R. 53(b)(2)(iv). We are citing to the opinion not for its precedential value but for its persuasive value. State ex rel. Gendrich v. Litscher, 2001 WI App 163, ¶7 n.6, 246 Wis. 2d 814, 632 N.W.2d 878.

¶23. As a final matter, this court notes with dismay the multiple citations to unpublished opinions contained in Cooper's appellate brief. The Rules of Appellate Procedure proscribe as follows:

Unpublished opinions not cited. An unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of the case.

Wis. Stat. Rule 809.23(3) (2001-02).

¶24. Cooper's appellate counsel attempts to minimize his culpability by locating such citations in footnotes and providing the disclaimer that citations to unpublished decisions are “for information and illustrative purposes only.” His use of the unpublished opinions to support his argument, however, reveals his intent to persuade this court with the improper citations.

¶25. When faced with such a blatant disregard for the Rules of Appellate Procedure in the past, this court has not hesitated to impose consequences. While "[w]e sometimes (perhaps too often) make allowances for appellate counsel's failure to abide by these rules ... [t]here are limits beyond which we cannot go in overlooking these kinds of failings." State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992). Cooper's appellate counsel has exceeded those limits.

¶26. We hereby impose a fine of $50 for each violation of Wis. Stat. Rule 809.23(3) (2001-02). We count nine citations to unpublished opinions in the appellant's brief, for a total fine of $450.

We note that in this opinion we do cite to two unpublished opinions from other states. Wisconsin Stat. § 809.23(3) does not prohibit us from doing so. In Brandt v. LIRC, 160 Wis. 2d 353, 466 N.W.2d 673 (Ct. App. 1991), aff'd, 166 Wis. 2d 623, 480 N.W.2d 494 (1992), we held that the rule does not proscribe citation to circuit court decisions, noting "the statutory scenario of chapter 809 concerns appellate procedure generally and ... Rule 809.23(3), read in context, concerns only court of appeals decisions." Brandt, 160 Wis.2d at 363.

We acknowledge that the cited order from the Seventh Circuit is an 'unpublished opinion.' However, the Seventh Circuit's rule only prohibits citation of an 'unpublished opinion' as precedent in any federal court in that circuit. 7th Cir. R. 53(b)(2)(iv). We are citing to the opinion not for its precedential value but for its persuasive interpretation of Wisconsin law. Leverence v. U.S. Fid. & Guar., 158 Wis. 2d 64, 91, 462 N.W.2d 218 (Ct. App. 1990).

We appreciate the attorney general’s thorough recitation of the facts and draw freely from it. Both the district attorney and the attorney general submitted response briefs and we refer to their position collectively as the State’s. Straehler’s recitation of facts is incomplete, lacks citation to the record and cites to documents outside of the record. Such failure is a clear violation of Wis. Stat. Rule 809.19(1)(d) of the rules of appellate procedure, which requires the appellant to set out facts “relevant to the issues presented for review, with appropriate references to the record.” An appellate court is improperly burdened where briefs fail to consistently and accurately cite to the record. Weiland v. Paulin, 2002 WI App 311, ¶11, 259 Wis. 2d 139, 655 N.W.2d 204, reversed on other grounds, 2003 WI 27, 260 Wis. 2d 277, 659 N.W.2d 204. This court is not required to sift through the record for facts. Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 324, 129 N.W.2d 321 (1964).

Wisconsin Stat. Rule 809.19(1)(d) and (e) (2001-02) requires the parties to provide in their briefs separate sections for their “statement of facts relevant to the issues presented for review” and argument. In their appeal, the Landowners have, inappropriately, interspersed legal argument and “spin” into what should have been an objective recitation of the factual occurrences of this case. “[F]acts must be stated with absolute, uncompromising accuracy. They should never be overstated — or understated, or ‘fudged’ in — any manner.” Judge William Eich, Writing the Persuasive Brief, Wisconsin Lawyer Magazine, Vol. 76, No. 2 (Feb. 2003). The fact section of a brief is no place for argument.

Furthermore, in its cross-appeal, ANR’s fact section contains few citations to the record and, for the most part, cites only to its own appendix. This is also improper. Such failure is a violation of Wis. Stat. Rule 809.19(1)(d) and (3) (2001-02) of the Rules of Appellate Procedure which requires parties to set out facts “relevant to the issues presented for review, with appropriate references to the record.” (Emphasis added.)

Justice Robert Hansen once wrote the now familiar phrase that “[a]n appellate court is not a performing bear, required to dance to each and every tune played on an appeal.” State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978). We are not required to search for the proverbial needle in the haystack that the appellant asserts exists but has not cited to. See Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 332, 129 N.W.2d 321 (1964). So to the extent that we may have missed an objection or point of contention, the fault lies with appellate counsel, not this court.

¶41. In his reply brief, Chu offers no response to the State's argument concerning information about Wales. Unrefuted arguments are deemed admitted. See Charolais Breeding Ranches v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). Accordingly, we reject his argument without further discussion.

¶17      “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.” (Emphasis added.) Preamble, SCR ch. 20 (2005-06). “The advocate’s function is to present evidence and argument so that the cause may be decided according to law…. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.” ^[3] Comment, SCR 20:3.5 (2005-06). Given corporation counsel’s unwarranted belligerence, it is the determination of this panel that a copy of this opinion shall be furnished to the Office of Lawyer Regulation for review and further investigation, as that office may deem appropriate.

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 ^[3] We thus appreciate Bettendorf’s attorney’s professionalism and restraint, demonstrated by his refusal to turn his reply brief into a similar set of attacks.

The brief submitted to us by the City of Milwaukee is overly tendentious and lacks the civility that lawyers owe to both their adversaries and to the courts. The following has no place in a brief before any court in this state: accusing an opposing party of seeking "political anarchy" ... of "creating a `sideshow,'" ... of advancing "crazy arguments" that "are ludicrous," ... characterizing an opponent's arguments as "hogwash" ... characterizing an opponent's argument as "ridiculous," ... and characterizing an opponent's argument as "crazy[.]"

In our view, these comments violate SCR 62.02(1)(a), because they do not reflect a "cordial and respectful demeanor"; SCR 62.02(1)(b), because they are not "civil"; SCR 62.02(1)(c), because they are "disparaging, demeaning [and] sarcastic"; and SCR 62.02(1)(d), because they are "uncivil, abrasive, abusive, hostile, [and] obstructive." We have previously warned appellate lawyers for the City, although not current counsel, that hyperbole is "unworthy of government lawyers." Milwaukee Police Ass'n v. City of Milwaukee, 2002 WI App 43, ¶13 n.3, 250 Wis. 2d 676, 688 n.3, 641 N.W.2d 709, 715 n.3. It is unworthy of all lawyers. See Aspen Servs., Inc. v. IT Corp., 220 Wis. 2d 491, 509, 583 N.W.2d 849, 856 (Ct. App. 1998) ("Civility is one aspect of professionalism that all attorneys should strive for.")

¶4 The question presented by this appeal is whether persons sentenced to a bifurcated term of imprisonment whose extended supervision is revoked may seek relief under WIS. STAT. RULE 809.30 from the trial court’s reconfinement order. We hold that they may.

In CHIPS cases, appeals are commenced by first filing of a notice of intent to pursue postconviction relief, and then by a notice of appeal. See WIS. STAT. § 809.30(2) (1997-98). Because no notice of intent has been filed in this case, the purported notice of appeal is premature. We will, however, construe James B.'s 'notice of appeal' as the notice of intent to pursue postconviction relief.

¶1        … Although Santana may seek habeas relief on his ineffective assistance claim, he started in the wrong forum.  His petition faults appointed counsel for failure to pursue an appeal. State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 797-99, 565 N.W.2d 805 (Ct. App. 1997), unequivocally requires defendants to raise this type of ineffective assistance claim in a Knight ^[2] petition to this court. That said, we emphasize that the dismissal below is without prejudice and that Santana may still file a Knight petition.

…

¶4        … Santana complains that counsel failed to file a no merit appeal or to move for postconviction relief.  Rule 809.32 governs no merit appeals. Had counsel moved for postconviction relief, he would have done so pursuant to Wis. Stat. § 974.02, which is governed by the procedural rules in Rule 809.30. See § 974.02(1); Evans, 273 Wis. 2d 192, ¶29 (such a motion may precede or substitute for a notice of appeal and may be a prerequisite to direct appeal depending on whether the issues argued were previously raised). Thus, Santana should have brought a Knight petition to this court.

¶5        The State, citing Smalley, 211 Wis. 2d at 798-99, and Ford, 269 Wis. 2d 810, ¶¶36-37, observes that although this court accepts habeas petitions where appellate counsel is ineffective, we often remand to the trial court for fact finding and opines that “[i]t reasonably follows … that a trial court should be able to address a loss-of-direct-appeal claim in the first instance.” We disagree with the State’s suggestion that Smalley prescribes an optional procedure. …

¶6        Although we affirm the circuit court’s order dismissing Santana’s petition, we emphasize that he remains free to pursue the proper procedure by filing a Knight petition in this court. …

¶9        As for what does belong in the Knight petition, we observe that the procedures in Wis. Stat. Rule 809.51 apply. The petition should contain a statement of the issues and facts of controversy, the relief sought, and reasons why we should take jurisdiction. See Rule 809.51(1)(a)-(d); Smalley, 211 Wis. 2d 795 & n.7. The statement of facts should identify precisely what counsel did or failed to do. We note that the issue of waiver will also probably arise.  The State has posited that Santana waived his right to bring a loss-of-direct-appeal claim by waiting seven and one-half years to seek relief. Habeas relief is an equitable remedy subject to the doctrine of laches. Smalley, 211 Wis. 2d at 800. Santana should be prepared to address the State’s claim and to provide a factual basis for his delay. See id. at 802 (petition must allege facts demonstrating that the defendant sought prompt and speedy relief). ^[3]

¶10      Additionally, the petition must comply with the requirements of Wis. Stat. § 782.04.  … We wish in particular to emphasize the verification requirement, which many prisoners overlook. Verification entails signing the document in the presence of a notary public. See Kellner v. Christian, 197 Wis. 2d 183, 188-89, 539 N.W.2d 685 (1995). The verification requirement assures “that the statements contained therein are presented with some regard to considerations of truthfulness, accuracy and good faith,” and petitions not properly verified do not meet the requirements for a valid application. Maier v. Byrnes, 121 Wis. 2d 258, 262-63, 358 N.W.2d 833 (Ct. App. 1984).

¶9. On its face, Evans is concerned only with extensions of the time to file a postconviction motion, when the ground for the motion could be construed as ineffective assistance of appellate counsel. The question, then, is whether Evans should be extended to bar extensions of the time to file a notice of intent to pursue postconviction relief, when the ground for the motion could be construed as ineffective assistance of trial counsel. We conclude that it should not be, and therefore we decide these motions by using the "good cause" standard provided in Wis. Stat. Rule 809.82. Extending Evans to notices of intent is not supported by sound policy reasons and might have undesirable and unintended side effects.

¶11. In Evans, the supreme court noted that this court “’has a generally lenient policy about granting extensions that will enable a criminal defendant to prosecute an appeal.’” Evans, 273 Wis. 2d 192, ¶38 (citation omitted). We agree with this assessment, at least with respect to extensions sought within a limited period of time after the deadline for filing a notice of intent has passed. Although the court has not established firm guidelines for deciding extension motions, the judges of this court generally consider a number of factors in deciding whether to grant an extension. The longer the extension that is sought, the greater the showing that is generally required to satisfy us that there is good cause for granting it.

…

¶14 Factors that we may consider in granting an extension for the filing of a notice of intent under Wis. Stat. Rule 809.82(2)(a) include the extent to which the delay appears to have been without fault of the defendant; the promptness of the defendant's request for an extension; and the avoidance of a disproportionate expenditure of judicial resources to make factual findings regarding requests for relatively short extensions. When deciding extension requests, we also seek to screen out defendants who have simply changed their minds after experiencing confinement or after having their probation revoked, especially if a significant amount of time has elapsed since the conviction, and we consider the need of crime victims and the public for finality in criminal adjudications. These factors are not intended to be exhaustive, but merely to provide sense of the factors we consider when acting on extension requests.

¶15 Defendants who can establish that they were deprived of their statutory right to direct appellate review of their criminal convictions because of ineffective assistance of counsel are entitled to have their direct appeal rights reinstated, regardless of the presence or absence of other factors. …

…

¶17 … If counsel's error in commencing the postconviction process causes deprivation of the entire process, prejudice is presumed. …

¶30. During postconviction proceedings, a defendant must choose between being represented by the SPD, proceeding pro se, or securing private representation. State v. Redmond, 203 Wis. 2d 13, 19, 552 N.W.2d 115 (Ct. App. 1996). A defendant does not have the right to hybrid representation on appeal. State v. Debra A.E., 188 Wis. 2d 111, 138, 523 N.W.2d 727 (1994). The right to counsel on direct appeal is a fundamental right and includes the guarantee of effective assistance of counsel on appeal. State ex rel. Flores v. State, 183 Wis. 2d 587, 604-05 & n.3, 516 N.W.2d 362 (1994). While a defendant has the right to counsel on direct appeal, he does not have the right to counsel of his choice, or the right to insist that particular issues be raised. Oimen v. McCaughtry, 130 F.3d 809, 811 (7th Cir. 1997). It is the duty of appellate counsel to decide what issues have merit for appeal. Jones v. Barnes, 463 U.S. 745, 751-53 (1983). If appellate counsel concludes that an appeal would be frivolous, he may file a no merit report after following the procedures outlined in Wis. Stat. § (Rule) 809.32 and seek to withdraw. Flores, 183 Wis. 2d at 605. A defendant has a right to be informed of the right to a no merit report and that he has a right to insist that such report be filed if he disagrees with counsel's opinion that the appeal would have no merit. Id. at 607, 610.⁹ The defendant also has the option, if he agrees with counsel that the appeal is without merit, to waive the right to appeal. Id. at 616.

¶31. If, however, the defendant merely disagrees with counsel as to which issues will be raised, he has the choice of terminating counsel's representation and proceeding pro se or proceeding with counsel and later seeking relief on the grounds of ineffective assistance of appellate counsel. Debra A.E., 188 Wis. 2d at 138. If a defendant elects the former option and desires to proceed pro se, the defendant must be provided clear warnings regarding the dangers of self-representation and waiving the right to appellate counsel before appellate counsel may withdraw. State v. Thornton, 2002 WI App 294, ¶21, 259 Wis. 2d 157, 656 N.W.2d 45.¹⁰ Moreover,

[t]he state public defender will not appoint successor counsel where a defendant disagrees with the legal conclusions of appointed counsel or when a defendant wants a second opinion as to the merits of an appeal. To do so would unduly delay the disposition of the appeal, and would be contrary to the interests of justice.

Judicial Council Committee Note, 2001, Rule 809.30, Stats. (citing Wis. Admin Code § PD 2.04).

¶4        However, as the State points out, the jurisdiction of the circuit court was initially invoked by the motion for postconviction relief under Wis. Stat. Rule 809.30(2)(h). Williams’s right to appeal or to cross-appeal stems from his pursuit of postconviction relief under Rule 809.30. The time for a person ^[3] to take various steps in pursuing postconviction relief under Rule 809.30, including the time for filing a notice of appeal, can be extended. See State v. Harris, 149 Wis.  2d 943, 946, 440 N.W.2d 364 (1989). The filing of a notice of cross-appeal is a continuation of the pursuit of postconviction relief under Rule 809.30. Thus, the time for a person to file a notice of cross-appeal from the Rule 809.30(2)(i) postconviction order can be extended. 

¶5        Applying the same procedures to the defendant’s right to appeal and to cross-appeal comports with due process. See Harris, 149 Wis. 2d at 947 n.5.  It also preserves the defendant’s constitutional right to raise possible error on appeal. See State v. Perry, 136 Wis. 2d 92, 99, 401 N.W.2d 748 (1987) (“Any failure of the appellate process which prevents a putative appellant from demonstrating possible error constitutes a constitutional deprivation of the right to appeal.”).

---

 ^[3]   Wisconsin Stat. Rule 809.30(1)(b) defines “person” to be a defendant seeking postconviction relief in a criminal matter and does not include the State.  The State’s time to appeal in a criminal matter may not be extended.

The State appeals from the written order denying the motion for reconsideration. White, citing Ver Hagen v. Gibbons, 55 Wis. 2d 21, 25, 197 N.W. 2d 752 (1972), asserts that we do not have jurisdiction to review that order because the only issues raised in the motion for reconsideration were disposed of by the court’s initial ruling. However, the initial ruling was not an appealable order because it was oral: only written orders may be appealed. Ramsthal Adver. Agency v. Energy Miser, Inc., 90 Wis. 2d 74, 75, 279 N.W.2d 491 (Ct. App. 1979). The Ver Hagen rule does not apply in this situation. See Silverton Enters., Inc. v. General Cas. Co., 143 Wis. 2d 661, 665, 422 N.W.2d 154 (Ct. App. 1988) (Ver Hagen addresses the concern that a motion for reconsideration should not be used to extend the time to appeal an order or judgment when that time has expired).

¶2      A defendant may collaterally attack a prior conviction to prevent its use as a penalty enhancer when the prior conviction was obtained in violation of the defendant’s right to counsel.  State v. Hahn, 2000 WI 118, ¶¶28-29, 238 Wis.  2d 889, 618 N.W.2d 528.  An order granting such a collateral attack motion is interlocutory in nature so long as the underlying criminal proceeding is ongoing.

…

¶7      Because the collateral attack on Knapp’s prior OWI conviction would not affect the State’s ability to attain a conviction here, where the applicable prohibited alcohol concentration would remain the same under either a second or third offense, we conclude that the State has no appeal as of right under Wis. Stat. § 974.05(1)(d).  We further conclude that we lack jurisdiction over the appeal under Wis. Stat. § 808.03(1) and Wis. Stat. Rule 809.10(4) because the order appealed from is not final.  The proper mechanism to seek immediate review in these circumstances is by leave to appeal under Wis. Stat. Rule 809.50. ^[2]  Accordingly, we hereby dismiss the appeal for lack of jurisdiction.

¶15 Wisconsin Stat. § 808.03 sets forth appeals as of right and appeals by permission. Subsection (1) explains that an order is final when it “disposes of the entire matter in litigation as to one or more of the parties, whether rendered in an action or special proceeding, and that is” entered or recorded. Based on this definition, we conclude that the April 6th order was not a final order. An order granting a plea withdrawal is not final because it plainly anticipates further proceedings in the criminal case—either a trial or a guilty or no-contest plea. The April 6th order did not dispose of the entire matter in litigation. The order itself noticed a status conference for May 28th. Clearly, such order cannot be construed as a final order.

¶16 We are further not persuaded by Williams’s argument that the order should be considered final because it ended the plea hearing proceedings. As the State pointed out, the granting of a plea withdrawal contemplates either a trial on the matter or renewed plea proceedings. Based on the language of Wis. Stat. § 808.03(1), we conclude that the trial court’s April 6th order was not final. Thus, the trial court retains jurisdiction unless the State files a petition seeking to appeal from a nonfinal order, and this court grants such petition.

¶15. If there are no further documents in the circuit court's file and all substantive issues have been decided for one or more parties in an order or a judgment, there is usually less confusion about whether the time for appeal has begun to run, than when there is a subsequent court document. Our prior cases have attempted to remove confusion about when the time limits in Wis. Stat. § 808.03(1) begin to run by explaining that a party may not assume that the last document in the file is the one that is referred to in § 808.03(1). See Fredrick, 92 Wis. 2d at 688. We have cautioned that the label on the document is not controlling. Thomas/Van Dyken, 90 Wis. 2d at 241. However, confusion has continued. Therefore, in order to clarify our past decisions in regard to determining when a document is final for purposes of § 808.03(1), we hold that when a circuit court enters an order or a judgment that decides all substantive issues as to one or more parties, as a matter of law, the circuit court intended that to be the final document for purposes of appeal, notwithstanding subsequent actions by the circuit court or the label the document bears.

¶16. After having clarified the meaning of Wis. Stat. § 808.03(1), we now turn our attention to the application of § 808.03(1) to the order for judgment in this case….

¶17. … The only task that remained after the circuit court issued the order for judgment⁷ was the determination of the amount of costs. This is generally a function of the clerk of court that does not further involve decision making⁸ by the circuit court, see Wis. Stat. § 814.10(1), nor does it affect the finality of the order. See, e.g., Campbell v. Campbell, 2003 WI App 8, ¶7, 259 Wis. 2d 676, 659 N.W.2d 106 (indicating that a judgment disposing of a claim is final though a request for costs is pending); see Appellate Practice, supra, § 4.7, 4-5 (indicating that a document is final if the judgment or order "leave[s] nothing to be done except taxing of costs and disbursements and enforcement by execution");⁹ Thomas/Van Dyken, 90 Wis. 2d at 243 (concluding a judgment is final for purposes of appeal when it disposes of the entire action, "precluding further proceedings except enforcement by execution"). Accordingly, because it decided all substantive issues as to one or more parties, we conclude that the circuit court intended the February 28, 2003 order for judgment to be the final document for purposes of appeal, even though it was not the final document in the circuit court's file.

¶26      We disagree with Schulpius's characterization of the November 2000 order. Even though the circuit court did not initially characterize it as a final order, it was clear that the November 2000 order was intended to resolve all litigation then pending between the parties, and the circuit court so indicated in a letter to the parties on December 1, 2000, stating that it would not enter any further order. ^[5] As we explained in Harder v. Pfitzinger:

We conclude that when an order or a judgment is entered that disposes of all of the substantive issues in the litigation, as to one or more parties, as a matter of law, the circuit court intended it to be the final document for purposes of appeal, notwithstanding the label it bears or subsequent actions taken by the circuit court.

Harder v. Pfitzinger, 2004 WI 102, ¶2, 274 Wis. 2d 324, 682 N.W.2d 398. Therefore, when Schulpius failed to appeal timely from the November 2000 order, he waived his right to challenge the validity of that order. …

In its jurisdictional memoranda, the State asks us to construe its notice of appeal as a petition for leave to appeal in the event that we decline jurisdiction over the appeal.  For logistical reasons, we conclude that it makes more sense to construe the State’s memoranda as its petition for leave, and we do so by separate order.

Dawn originally commenced this appeal by filing a petition for leave to appeal a nonfinal order. However, we determined that the order was final because it concluded a special proceeding with respect to the confidentiality privilege held by Dawn on behalf of Kirsten. Following our order, Dawn filed a notice of appeal.

Haywood’s notice of appeal mistakenly asserts that he also appeals “from … the postconviction motion dated December 2, 2008.”  First, Haywood’s appeal is from the circuit court’s order denying his motion, not from the motion.  Second, the circuit court’s order is dated December 1, 2008, although it was filed on December 2.  We, obviously, ignore these silly errors, see Wis. Stat. Rule 805.18(1) (“The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.”) (made applicable to appellate procedures by Wis. Stat. Rule 809.84), but caution counsel to be more careful in the future.

The failure of the notice of appeal to correctly identify the final appealable document is not fatal to appellate jurisdiction. See Carrington v. St. Paul Fire & Marine Ins. Co., 169 Wis. 2d 211, 217 n.2, 485 N.W.2d 267 (1992). The caption has been amended to reflect that the appeal is taken from both orders. Following entry of the order for protective placement, the appellant timely filed a notice of intent to pursue postdisposition relief under Wis. Stat. Rule 809.30(2)(a). That notice may be construed as a timely notice of appeal from the order appointing a guardian.

¶5        The plain language of Wis. Stat. § 752.31(1) establishes that all appeals before the court of appeals shall be decided by a panel of three judges. Section 752.31(3) merely provides exceptions to the general rule for the types of cases listed in § 752.31(2). Exceptions are to be strictly construed and applied. See Lang v. Lang, 161 Wis. 2d 210, 224, 467 N.W.2d 772 (1991). Accordingly, all doubts about whether an appeal should be decided by a three-judge panel or one court of appeals judge should be resolved in favor of the default rule that a three-judge panel be utilized. See Wisconsin Fertilizer Ass’n, Inc. v. Karns, 52 Wis. 2d 309, 317-18, 190 N.W.2d 513 (1971) (with regard to exemptions to safety statutes all doubts should be resolved in favor of the general provision rather than the exception). Thus, where an appeal involves the type of case specified in § 752.31(2)(d), and also involves a case which § 752.31(1) requires to be heard by a three-judge panel, the appeal will be assigned for decision by a three-judge panel. This is consistent with this court’s practice of having the chief judge order a one-judge appeal to be decided by a three-judge panel when the appeal is consolidated with an appeal required by statute to be heard by a three-judge panel. See Wis. Stat. Rules 809.10(3), 809.41(3). This does not change that appeals which involve only a protective placement order or other order confined to a proceeding under Wis. Stat. ch. 55, such as a termination petition under Wis. Stat. § 55.17 or annual review under Wis. Stat. § 55.18, will be assigned for decision by one court of appeals judge.

Patrick Jackson’s notice of appeal says that he is appealing the trial-court order denying his motion for postconviction relief. The notice of appeal does not also indicate that he is also appealing from the judgment of conviction. This defect, however, is not fatal to our review of Jackson’s contention that the judgment was improperly entered against him. First, if the notice of appeal had, in haec verba, indicated that it was also appealing the judgment, it would have been timely because it was filed within twenty days of the trial court’s order denying Jackson’s motion for postconviction relief. See Wis. Stat. Rule 809.30(2)(j) (“The person shall file in circuit court and serve on the prosecutor and any other party a notice of appeal from the judgment of conviction and sentence or final adjudication and, if necessary, from the order of the circuit court on the motion for postconviction or postdisposition relief within 20 days of the entry of the order on the postconviction or postdisposition motion.”) (emphasis added). Second, it is a general rule of appellate jurisdiction that “all orders or rulings affecting both the respondent and the appellant when so reasonably related, may be heard whether appellant has included in his notice of appeal every part of the order or judgment or not.” Jones v. Pittsburgh Plate Glass Co., 246 Wis. 462, 468, 17 N.W.2d 562, 565 (1945). Thus, Wis. Stat. Rule 809.10(1)(f) recognizes that “[a]n inconsequential error in the content of the notice of appeal is not a jurisdictional defect.” Cf. Rule 809.10(4) (“An appeal from a final judgment or final order brings before the court all prior nonfinal judgments, orders and rulings adverse to the appellant and favorable to the respondent made in the action or proceeding not previously appealed and ruled upon.”). Accordingly, we review all the matters he has raised that affect the judgment entered against him as well as those that affect the trial court’s order denying his motion for postconviction relief.

We hold that a notice of appeal may be filed by facsimile transmission because a notice of appeal is not a paper that requires a filing fee to confer jurisdiction. The court of appeals obtained jurisdiction over this appeal when the clerk of the circuit court received Sorenson's facsimiled notice of appeal within the statutorily prescribed time frame.

¶11. In Wisconsin, trial courts are circuit courts of "general jurisdiction" with the "power to hear and determine, within their respective circuits, all civil and criminal actions and proceedings." Wis. Stat. § 753.03. Wisconsin Stat. §§ 753.016(1) and (2) provide that in Milwaukee County each branch of the circuit court shall have a deputy clerk provided by the clerk of the circuit court. Reading these statutes in pari materia, we conclude that in Milwaukee County "the clerk of the trial court" contemplated by Wis. Stat. Rule 809.10(1)(a) necessarily encompasses the deputy clerk assigned to the specific branch of the circuit court as well as deputy clerks performing duties within the office of the clerk of circuit court.

¶12. In view of this specific statutory scheme governing the location of deputy clerks in each branch of the trial court of Milwaukee County, we conclude that Kelley properly addressed his notice of appeal "to the clerk of the trial court" within the meaning of Wis. Stat. Rule 809.10(1)(a) by specifying its delivery to "Circuit Court Branch 42, Milwaukee Courthouse, Milwaukee, WI 53233." Because Kelley's envelope was properly addressed and timely placed in the prison mail prior to the expiration of the ninety-day time limit following the entry of the circuit court's order on appeal, we hold that the appeal was timely filed within the meaning of Nichols and this court has jurisdiction of it. Accordingly, the State's motion to dismiss the appeal is denied.

¶1. In these two appeals, the appellants filed unsigned notices of appeal with the clerks of the circuit courts. The issue is whether the failure to sign the notice of appeal deprives this court of appellate jurisdiction. In accord with the recent United States Supreme Court ruling in Becker v. Montgomery, 121 S. Ct. 1801 (2001), we conclude that a person's failure to sign the notice of appeal does not deprive this court of appellate jurisdiction if the omission is corrected once it is called to the appellant's attention....

¶9. For these purposes, Wis. Stat. § 802.05(1) is identical to Rule 11(a) of the Federal Rules of Civil Procedure. And, like Federal Rules of Appellate Procedure 3(c)(4), Wis. Stat. § 807.07(1) provides that '[i]f it appears ... that [an] appeal was attempted in good faith the court may allow any defect or omission in the appeal papers to be supplied, either with or without terms, and with the same effect as if the appeal had been originally properly taken.' See also Northridge Bank v. Cmty. Eye Care Ctr., Inc., 94 Wis. 2d 201, 203, 287 N.W.2d 810 (1980) (an appellant should be permitted to amend a timely filed notice of appeal under § 807.07(1) to correct an 'inconsequential' error in the content of the notice of appeal). All of the federal rules under consideration in Becker have substantially similar counterparts in Wisconsin. Therefore, we conclude that the Supreme Court's analysis in Becker is persuasive.

Lamont argues that this court does not have jurisdiction over this matter because the guardian ad litem filed the notice of appeal and the State simply joined in the appeal instead of the other way around. We reject Lamont’s contention.  WISCONSIN STAT. § 48.235(7) plainly states that the guardian ad litem “may appeal, may participate in an appeal or may do neither.” This clearly authorizes the guardian ad litem to file a notice of appeal. When the guardian ad litem has appealed, the State is obligated to participate as a representative of the public interest in certain circumstances. Lamont has not provided, nor can we find, anything which requires the State to file a separate notice of appeal, when the guardian ad litem has already done so, and the State’s interests are aligned with those of the guardian ad litem.

¶9        The State correctly counters that Miller and Gonzalez-Lopez involved the right to counsel of choice at trial. Here, Peterson was postconviction, at a Machner proceeding. …

¶10      Martinez and Tamalini provide no guidance on the question presented. The issue here arose not on direct appeal under Wis. Stat. § 808.03, but rather when Peterson pursued postconviction relief in the circuit court. See Wis. Stat. § 808.01(1) (“appeal” means review in an appellate court).

¶11      We have located no Wisconsin case directly on point; that is, addressing the right to be represented by retained counsel of choice during postconviction proceedings in the circuit court. Neither party has offered any mandatory authority for deciding the question. Nonetheless, sufficient guidance exists in Sixth and Fourteenth Amendment case law to indicate that a person has a qualified right to counsel of choice. … It is apparent from the Whitmore case and SM 33 that Wisconsin affords a convicted person the right to postconviction counsel. It would be absurd to suggest that a person has a right to counsel at trial and a right to counsel on appeal, but no right to the assistance of counsel at a postconviction proceeding in the circuit court, which is often the precursor to and augments the record for an appeal.

¶12      When considering whether the right to counsel at a Machner hearing is derived from the Fourteenth Amendment, as in Douglas, or from the Sixth Amendment, as in Gonzalez-Lopez, Wheat, and Miller, we observe that the Machner proceeding is much more akin to a trial than an appeal. …

¶7 The State contends that WIS. STAT. § 970.04 precludes Gillespie’s request for a second preliminary hearing. The statute states:

Second examination. If a preliminary examination has been had and the defendant has been discharged, the district attorney may file another complaint if the district attorney has or discovers additional evidence.

...

¶8 We agree with the State. … While the factual scenario set forth in § 970.04, one in which the defendant has been discharged and a new complaint filed, is different from that presented in Gillespie’s case, it nevertheless reveals that the legislature had the opportunity to address a second examination in Gillespie’s situation and chose not to do so. See A. and A.P. v. Racine County, 119 Wis. 2d 349, 354, 349 N.W.2d 743 (Ct. App. 1984).

¶9 We also observe that the Wisconsin Supreme Court has decreed that a motion to dismiss is the proper procedure for obtaining circuit court review of a court commissioner’s bindover ruling and that such review is limited to a transcript of the preliminary examination. State ex rel. Dowe v. Circuit Court for Waukesha County, 184 Wis. 2d 724, 729, 731, 516 N.W.2d 714 (1994)....

We grant Harp’s petition because the mistrial order implicates her right against double jeopardy. “Given the serious constitutional questions raised by claims of double jeopardy, review of such orders will often be necessary to protect the accused from ‘substantial or irreparable injury,’ one of the three criteria for testing the appropriateness of review under sec. 808.03(2).” State v. Jenich,94 Wis. 2d 74, 97, 292 N.W.2d 348 (1980).

¶1 The major holding here is that when this court accepts an interlocutory appeal, the appellant is limited to briefing only those issues presented in the petition for leave to appeal and may not raise additional issues without the prior consent of the court. …

…

¶13. More to the point, however, is the reason behind this limitation. We do not lightly grant a petition for leave to appeal. See, e.g., State ex rel. A.E. v. Circuit Court for Green Lake County, 94 Wis. 2d 98, 102, 288 N.W.2d 125, modified per curiam, 94 Wis. 2d 105a, 292 N.W.2d 114 (1980) (interlocutory appeals undesirable). The general policy of this court is to avoid piecemeal disposal of litigation. See, e.g., id. at 101. Moreover, as Michael S. Heffernan cogently stated in the State Bar CLE book, Appellate Practice and Procedure in Wisconsin, § 9.5 (3d ed. 2003), it is also in recognition of our heavy case load. Heffernan further points out that the policy against granting interlocutory appeals is particularly strong in criminal prosecutions. See id. Delays in that area are "inimical to an effective criminal justice system." Id. (citing A.E., 94 Wis. 2d at 102).

¶14. Against this backdrop, Wis. Stat. § 808.03(2) details the circumstances where we will grant a petition for leave to appeal a nonfinal order: (1) if the issue or issues will materially advance termination of the litigation or materially clarify further proceedings, (2) will protect the petitioner from irreparable injury, or (3) will clarify an issue of general importance in the administration of justice. As Heffernan explains, implicit in our consideration of each factor is the question of whether the petition shows a substantial likelihood of success on the merits. See Heffernan, supra, at § 9.4. …

…

¶16. Therefore, we will only grant petitions for leave to appeal where the issue or issues raised in the petition meet one or more of the criteria in Wis. Stat. § 808.03(2). In fact, even if there are several issues raised in the petition, but not all meet the criteria, we may well order that the briefing be limited to only those issues we feel have merit under the statute.

¶10. The issue presented in this case is whether this court should exercise its constitutional superintending and administrative authority to direct the court of appeals to accept all petitions for interlocutory appeal where the circuit court has denied a claim that the state court action is barred by a final federal court judgment on issue and claim preclusion grounds. We decline to extend our authority to mandate review in such instances. Instead, based in part on concerns of comity between the state and federal courts, we urge the court of appeals to carefully review such future petitions.

¶8  Even if we were to determine that the trial court erred in rejecting the tendered Alford plea, the error would not justify setting aside the results of Williams's jury trial. This is because any error stemming from a trial court's refusal to accept an Alford plea, like error in binding over a defendant following a preliminary hearing, is cured when a defendant receives a fair and error-free trial. See State v. Webb, 160 Wis. 2d 622, 467 N.W.2d 108 (1991).

...

¶12  (A) defendant's opportunity to obtain the benefit of a plea bargain can be adequately protected by requiring a defendant who believes his tendered plea has been improperly rejected to seek leave for an interlocutory appeal.

¶9 The parties agree that we review Judge Murray’s actions in connection with Hipp’s John Doe petition via mandamus. See State of Wisconsin ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, ¶¶41, 48, 260 Wis. 2d 653, 680, 682–683, 660 N.W.2d 260, 273, 275; see also id., ¶23, 260 Wis. 2d at 670, 660 N.W.2d at 268 (“[I]t is well settled that a John Doe judge’s actions are not directly appealable to the court of appeals because an order issued by a John Doe judge is not an order of a ‘circuit court’ or a ‘court of record.’”). As we have seen, the issue here is whether the John Doe statute, Wis. Stat. § 968.26, permits a person filing a John Doe petition to compel the appearance of witnesses at the hearing by subpoenas not issued by the John Doe judge. As noted, we conclude that it does.

¶48. On balance, we conclude that Wisconsin Constitution, Article VII, Section 5(3), read together with the language in Wis. Stat. § 808.03(2) and in Wis. Stat. § (Rule) 809.51(1) including "other person or body," is sufficiently broad in scope to permit the court of appeals to exercise supervisory jurisdiction over the actions of a judge presiding over a John Doe proceeding. Interpreting the constitution to allow for the court of appeals to exercise jurisdiction over the actions of a John Doe judge represents sound practice and is in keeping with the court of appeals' traditional role as an error-correcting court. See State ex rel. James L.J. v. Cir. Ct. for Walworth County, 200 Wis. 2d 496, 546 N.W.2d 460 (1996).

¶49. We emphasize, however, that writs stemming from John Doe proceedings should not become a vehicle for delaying a John Doe proceeding. Pursuant to Wis. Stat. (Rule) § 809.51(2), the court of appeals enjoys the discretion to deny a petition for supervisory writ ex parte, when warranted.

…

¶71. The party seeking review of a John Doe judge's decision shall file the petition for supervisory writ in the court of appeals, together with a motion seeking leave to file under seal any portions of the petition or record that fall within the scope of an existing secrecy order, but which the petitioner deems necessary to prosecute his or her petition. The State may respond to that motion. The court of appeals can then entertain the motion, and conduct an in camera review of the documents proposed to be filed under seal. If the documents appear to fall legitimately within the scope of a permissible secrecy order, the court may grant the motion and the documents will be filed under seal.

¶7        The statutes referenced in Wis. Stat. Rule 809.32(1)(a), relate to the appointment of counsel by the state public defender. Thus, pursuant to Rule 809.32(1)(a), an attorney appointed by the state public defender may file a no-merit report using the statutory scheme set out in Rule 809.32. Brown’s appellate counsel seeks to use the statutory procedure on Brown’s behalf even though the circuit court and not the state public defender appointed counsel for Brown. We agree that counsel may do so.

…

¶10      Accordingly, we hold that Brown and other indigent criminal defendants with court-appointed appellate lawyers may pursue appellate review in the court of appeals using the procedures in Wis. Stat. Rule 809.32 when appellate counsel concludes that an appeal would lack arguable merit. To the extent that the procedural posture of any particular defendant’s case hampers compliance with the statutory deadlines or other requirements contained in the Rule, counsel may move this court for appropriate relief. ^[4] See Wis. Stat. Rules 809.14, 809.82.

¶4        Panama entered a no-contest plea in accordance with a negotiated plea agreement. The plea agreement specified in relevant part, “There are no agreements as to sentencing but the State will be requesting prison left to the court’s discretion.” Although that provision appears to be an agreement by the prosecutor to refrain from commenting on the length of the sentence the court should impose, at the sentencing hearing, the prosecutor argued: “The pre-sentence report asks that you impose ten years in prison. I concur with that recommendation because of the nature of the offense damage that’s been done to the victim.” Panama’s counsel did not object to this comment and the trial court imposed the recommended ten-year sentence.

¶25      In sum, the cases collectively create much confusion and delay. Common sense suggests that all claims of ineffective assistance of counsel, including appellate counsel, be initially addressed in the circuit court. This cannot be done, however, without overruling or modifying either Knight or Rothering, which this court cannot do.

¶30      We reject Parent's contention that Wis. Stat. § (Rule) 809.32(1)(d) confers an unqualified right for a no-merit appellant to access personally the PSI report. …

¶31      But neither are we persuaded by the State's argument, which would place the onus on the defendant to demonstrate a "substantial need" for the PSI report without knowing (or recalling) its contents. …

…

¶35      We conclude that permitting a defendant in a no-merit appeal access to the PSI report is consistent with the design and purpose of the no-merit procedure. …

…

¶43      Accordingly, under Wis. Stat. §  972.15(4m) (2005-06), we conclude that a defendant subject to the no-merit procedure may view a copy of the PSI report but may not keep a copy of it. This opportunity to view the report must be meaningful; the defendant should have sufficient time to conduct a thorough review of the document and, if the defendant has made a timely request to view the PSI report, the viewing should occur soon enough to give the defendant time to incorporate material from the PSI report in the defendant's response to the no-merit report.

…

¶45      Consistent with the requirements of Wis. Stat. § 972.15(3), we hold that a defendant subject to a no-merit appeal must notify the circuit court of the defendant's desire to view the PSI report to permit the judge to review the PSI report and to redact as the judge deems appropriate identifying information of persons who provided information for the report and information that may be confidential under other law not discussed here. The circuit court's exercise of discretion is limited under the statute to redacting, as it deems appropriate, identifying information of persons who provided information and information that may be confidential under other applicable law. Under § 972.15(4m) (2005-06), the circuit court may not deny altogether the defendant's request to view a copy of the PSI report.

¶49      We conclude that the attorney general comes under the purview of Wis. Stat. § 972.15(4) and (4m) (2005-06) because, in criminal appeals, the attorney general is often the State's successor to the district attorney. … We therefore conclude that under §§ 972.15 and 967.02(7) the attorney general's office should submit any requests to obtain a copy of the PSI report and to disclose its contents in the State's brief to the circuit court for the purposes of a no-merit appeal.

¶23      Where a defendant has specifically directed counsel not to file a no-merit report after being advised of his or her options, counsel is not free to ignore the defendant’s direction. We discussed the nature of the attorney-client relationship in State v. Divanovic, 200 Wis. 2d 210, 224-25, 546 N.W.2d 501 (Ct. App. 1996) (citations and footnotes omitted):

Supreme Court Rule 20:1.2 (West 1996) entitled “Scope of Representation,” recites, in part, that “A lawyer shall abide by a client’s decisions concerning the objectives of representation.” However, the comment that follows provides that such limits on the objectives of representation must follow consultation between the lawyer and the client.  SCR 20:1.2 cmt. This consultation requirement was followed in this case as our discussion on the previous issue demonstrates. Thus [counsel] was ethically bound to abide by Divanovic’s instructions.

The case law is in accord. 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. A defendant who insists on making a decision which is his or hers alone to make in a manner contrary to the advice given by the attorney cannot subsequently complain that the attorney was ineffective for complying with the ethical obligation to follow his or her undelegated decision. ^[5]

The record in this matter reveals that 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.

…

¶37      If a defendant does not want a no-merit report, the defendant has three choices: fire counsel and proceed pro se, fire counsel and hire private counsel if financially feasible, or direct that the file be closed. But a defendant cannot simply insist that appointed counsel pursue an advocacy appeal under Wis. Stat. Rule 809.30 despite counsel’s view that such an appeal would lack arguable merit. Jones v. Barnes, 463 U.S. 745, 751-53 (1983) (counsel must exercise professional judgment in the manner in which he or she represents the defendant). And, a defendant cannot alternatively insist on different appointed counsel who will write a brief the way the defendant wants it written. 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.

¶15      Fortier contends that he should not be precluded from raising the issue of a sentence illegally raised upon resentencing, even though he failed to raise it in a response to the no-merit report at the time of the original appeal.  …

…

¶23      In this case, it is, as mentioned, undisputed that Fortier was informed by his appellate counsel of his right to file a response to the no-merit report and that Fortier did not file a response. See Wis. Stat. Rule 809.32(1)(e). …

¶24      However, it is now evident that the issue of a sentence illegally increased at sentencing, which was eventually raised by Fortier in a motion to reduce sentence on October 1, 2004, is indeed an issue of arguable merit. The issue was hence overlooked not only by Fortier, but also by his appellate counsel, who filed the no-merit report addressing only the issue of erroneous exercise of sentencing discretion and concluding that no issues of arguable merit remained, and by this court, that agreed with the no-merit report.

…

¶27      … We therefore conclude that the no-merit procedures, under Anders and Wis. Stat. Rule 809.32, were not followed in this case, and agree that Fortier’s appellate counsel and this court should have identified the raised sentence at resentencing as an issue of arguable merit. See Tillman, 281 Wis. 2d 157, ¶20. Because we cannot fault Fortier for his reliance on his appellate counsel’s assertion in the no-merit report that there were no issues of arguable merit, we are satisfied that Fortier has shown a “sufficient reason” for failing to raise the issue in a response to the no-merit report. Wis. Stat. § 974.06(4); Escalona, 185 Wis. 2d at 181. Accordingly, Fortier is not procedurally barred from raising the issue of a sentence illegally raised.

¶16. The no merit appeal procedure has its genesis in Anders v. California, 386 U.S. 738 (1967), and is codified in Wis. Stat. Rule 809.32. … Any motion to withdraw pursuant to Anders "necessarily implicates the merits of an appeal, because the premise of the motion is that the appeal is frivolous." Wilkinson v. Cowan, 231 F.3d 347, 351 (7th Cir. 2000).

¶17 Wisconsin Stat. Rule 809.32 incorporates the no merit procedure set forth in Anders, as well as setting forth more detailed requirements. First, appointed counsel examines the record for potential appellate issues of arguable merit. See Rule 809.32(1)(a) ("The no merit report shall identify anything in the record that might arguably support the appeal and discuss the reasons why each identified issue lacks merit."). Next, the defendant has the opportunity to respond to the no merit report and raise additional issues. Rule 809.32(1)(e). Next, as contemplated by Anders, the appellate court not only examines the no merit report but also conducts its own scrutiny of the record to see if there are any potential appellate issues with arguable merit. See Anders, 386 U.S. at 744-45. Finally, the court's no merit decision sets forth the potential appellate issues and explains in turn why each has no arguable merit.

¶18 … As noted earlier, the no merit process "necessarily implicates the merits of an appeal" because the premise of appellate counsel's motion to withdraw following the filing of the no merit report "is that the appeal is frivolous." Wilkinson v. Cowan, 231 F.3d at 351. "This can only be understood as a merits-based decision with respect to each of the claims raised in the petition." Id.

¶2. The issue on the instant appeal is whether the procedural bar of Escalona-Naranjo may be applied when a prior appeal was processed under the no merit procedure set forth in Wis. Stat. Rule 809.32. For the reasons stated below, we conclude that the procedural bar of Escalona-Naranjo, as codified in Wis. Stat. § 974.06(4), may be applied in the appropriate case. We further hold under facts and history of this case that the issues in Christopher Tillman's current appeal are subject to the procedural bar of Escalona-Naranjo.

…

¶19 We therefore reject any notion that the no merit procedure is too perfunctory as a matter of law to permit the application of Wis. Stat. § 974.06(4). We conclude that when a defendant's postconviction issues have been addressed by the no merit procedure under Wis. Stat. Rule 809.32, the defendant may not thereafter again raise those issues or other issues that could have been raised in the previous motion, absent the defendant demonstrating a sufficient reason for failing to raise those issues previously. See Escalona-Naranjo, 185 Wis. 2d at 181-82.

¶20 In making this pronouncement, we stress that the procedural bar of Escalona-Naranjo is not an ironclad rule. State v. Crockett, 2001 WI App 235, ¶¶7-8, 248 Wis. 2d 120, 635 N.W.2d 673 (an issue waived under Escalona-Naranjo may still be addressed by the court in its discretion); see also State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999) (waiver is a rule of judicial administration, not jurisdiction and courts have discretion to make exceptions). We also recognize that a no merit appeal is a different breed of appeal because, while Anders envisions counsel acting as an advocate, the fact remains that counsel ultimately concludes that there are no issues of arguable merit. See Anders, 386 U.S. at 744-45. Therefore, in considering whether to apply the procedural bar of Escalona in a given case, the court (both trial and appellate) must pay close attention to whether the no merit procedures were in fact followed.⁵ In addition, the court must consider whether that procedure, even if followed, carries a sufficient degree of confidence warranting the application of the procedural bar under the particular facts and circumstances of the case.

---

⁵   For instance, in Wilkinson v. Cowan, 231 F.3d 347 (7th Cir. 2000), the court held that the defendant was not procedurally barred from raising a claim of ineffective assistance of counsel even though he had procedurally raised the issue because "he was not invited to file a response [to the no merit report] and he did not do so of his own initiative." Id. at 349. While the clerk of the federal district court advised the defendant that he could respond to the no merit report, this notification did not advise that a response was a matter of right and a matter of obligation if the defendant wanted to preserve his claim for further review. Id. at 351. Here, however, Tillman filed a response to the no merit report.

¶14      As a preliminary matter, while the issue before the court is moot because Walker has completed his reconfinement term and thus our decision will not affect the underlying controversy, we may at times consider a moot issue if it is of "great public importance or arises frequently enough to warrant a definitive decision to guide the circuit courts." State ex rel. Riesch v. Schwarz, 2005 WI 11, ¶12, 278 Wis.  2d 24, 692 N.W.2d 219. Because circuit courts regularly preside over reconfinement hearings, we review the issue at hand even though it is moot.

¶8        We will generally not consider issues that are moot on appeal. See Hernandez v. Allen, 2005 WI App 247, ¶10, 288 Wis. 2d 111, 707 N.W.2d 557. However, the present appeal is not moot because our ruling will have the practical effect of determining the Register’s right to recover damages and fees under Wis. Stat. § 19.37(2)(a) ^[4] based upon the Sheriff’s Department’s denial of its request. Moreover, we make exceptions to the general rule in cases where the issue is of great public importance; the identical issue arises frequently and a decision is needed to guide trial courts; the issue will likely arise again and should be resolved; the issue is likely of repetition yet evades review; or it involves a statute’s constitutionality. See State v. Leitner, 2002 WI 77, ¶14, 253 Wis. 2d 449, 646 N.W.2d 341. We view the issue in the present case as sufficiently important and capable of evading review that it warrants review even if it were moot. Thus we proceed to the merits of the parties’ arguments.

¶6 Reviewing courts generally decline to decide moot issues but may do so under certain circumstances. ^[3] A court may decide a moot issue when the issue is of great public importance; occurs frequently and a definitive decision is necessary to guide the circuit courts; is likely to arise again and a decision of the court would alleviate uncertainty; or will likely be repeated, but evades appellate review because the appellate review process cannot be completed or even undertaken in time to have a practical effect on the parties.

¶7 The question presented in this case seems to satisfy all these exceptions to the mootness rule. Deciding a circuit court's retention of authority over a juvenile after the expiration of a dispositional order is a matter of great importance to the sound operation of the judicial system and the rights and interests of juveniles.

¶8 We will therefore address the issue presented in the instant case.

¶11. Since granting the petition for review in this case, we have determined that the issue presented is moot as to Riesch. "An issue is moot when its resolution will have no practical effect on the underlying controversy." State ex rel. Olson v. Litscher, 2000 WI App 61, ¶3, 233 Wis. 2d 685, 608 N.W.2d 425. Riesch's issue satisfies this definition because he has been discharged from the conviction underlying his parole revocation, and that revocation did not delay the start of the probationary term he is now serving.

¶12. Appellate courts generally decline to consider moot issues but may do so under certain circumstances. State v. Morford, 2004 WI 5, ¶7, 268 Wis. 2d 300, 674 N.W.2d 349. For example, this court has held that it may decide an otherwise moot issue if it is of great public importance or arises frequently enough to warrant a definitive decision to guide the circuit courts. Id. (citing In re John Doe Proceeding, 2003 WI 30, ¶19, 260 Wis. 2d 653, 660 N.W.2d 260). In this case, the issue presented falls within these exceptions, and therefore, we reach its merits.

¶7 Reviewing courts generally decline to decide moot issues but may do so under certain circumstances. This court has held that it may decide an otherwise moot issue if it: (1) is of great public importance; (2) occurs so frequently that a definitive decision is necessary to guide circuit courts; (3) is likely to arise again and a decision of the court would alleviate uncertainty; or (4) will likely be repeated, but evades appellate review because the appellate review process cannot be completed or even undertaken in time to have a practical effect on the parties.

¶8 We conclude that the sole issue proposed to be addressed, that is, the appropriate mechanism for changing the supervised release status of a chapter 980 committee who has been determined to be appropriate for supervised release but who remains institutionalized and awaiting placement, satisfies several exceptions to the mootness rule.

As a general rule, this court will not consider an issue which will not have any practical effect upon an existing controversy. State v. Leitner, 2002 WI 77, ¶13, 253 Wis. 2d 449, 646 N.W.2d 341 (citing State ex rel. La Crosse Tribune v. Circuit Court for La Crosse Co., 15 Wis. 2d 220, 228, 340 N.W.2d 460 (1983)). However, moot cases may be decided in a variety of circumstances, including where the issues are of great public importance or should be resolved to avoid future uncertainty. Leitner, 253 Wis. 2d 449, ¶14.

¶3 … Did the municipal court proceeding constitute a "trial" under § 800.14(4) when the City presented sworn witnesses, those witnesses were cross-examined by the defendant, and the case was dismissed with prejudice upon the defendant's motion to dismiss at the close of the City's case-in-chief?

¶4. We conclude that the municipal court proceeding in the present case constituted a trial under Wis. Stat. § 800.14(4) because the City presented its case, the defendant had an opportunity to present his evidence (even though he chose not to do so), and the matter was judicially resolved on its merits. We therefore conclude that the municipal court proceeding in the instant case triggered the City's statutory right to a new trial under Wis. Stat. § 800.14(4). Accordingly, we reverse the decision of the court of appeals and the order of the circuit court and remand the cause to the circuit court to grant the City's request for a new trial.

¶18      Simply stated, unlike the defendant in Flowers, Mikulance does not raise a proper Wis. Stat. § 973.13 claim. Section 973.13, as it pertains to sentencing a repeat offender, applies only when the State fails to prove the prior conviction necessary to establish the habitual criminal status (by proof or by admission) or when the penalty given is longer than permitted by law for a repeater. See Flowers, 221 Wis. 2d at 28-29; see also State v. Spaeth, 206 Wis. 2d 135, 155-56, 556 N.W.2d 728 (1996). Mikulance makes neither of these arguments. He does not argue that the court sentenced him to prison for more time than the enhancement statute permits nor does he argue that the sentence was based on lack of proof by the State or lack of an admission by him that the prior conviction existed.

¶19      Instead, Mikulance mounts a constitutional challenge to the procedure the court used to accept his no contest pleas. In his most recent postconviction motion, Mikulance argues that the circuit court failed to inform him of the maximum penalties for the substantive charges of battery, disorderly conduct and unlawful use of a telephone and of the penalty enhancements attributable to his conviction as a habitual criminal. Mikulance cannot use Wis. Stat. § 973.13 to raise this type of claim. Therefore, the narrow exception articulated in Flowers for claims properly brought under § 973.13 does not apply.

¶9 Kaster next argues that the evidence was legally insufficient to sustain the disorderly conduct charge. .... Kaster has not demonstrated a “sufficient reason” under § 974.06(4) to overcome the fact that he failed to raise his challenge on direct appeal. See State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-84, 517 N.W.2d 157 (1994). Thus, Kaster is procedurally barred from raising the disorderly conduct conviction now.

¶12      We conclude that Thames’s arguments are procedurally barred. Thames has raised essentially the same issues he raised in his direct appeal and in his 1997 Wis. Stat. § 974.06 motion. The fact that Thames’s appeal of the trial court’s order denying his 1997 § 974.06 motion was dismissed pursuant to Wis. Stat. § 809.83(2) (1997-98) ^[6] does not change the result. When no appeal is taken, all provisions of a judgment, and the findings and conclusions upon which it is based, are conclusive and binding upon all parties to the litigation. Kriesel v. Kriesel, 35 Wis.  2d 134, 138, 150 N.W.2d 416 (1967). The result is the same where, as here, a party filed a notice of appeal but failed to file a brief after repeated extensions, resulting in a dismissal of the appeal pursuant to § 809.83(2). ^[7]

¶2. The petitioner, Anou Lo, asks that we overrule our decision in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994) (Escalona), in which we held that any claim that could have been raised on direct appeal or in a previous Wis. Stat. § 974.06 (1999-2000) postconviction motion is barred from being raised in a subsequent § 974.06 postconviction motion, absent a sufficient reason….

¶15. Although our decision in Escalona discussed the origins and purpose of § 974.06, see Escalona, 185 Wis. 2d at 176-178, 181-182, we take this opportunity to augment that discussion and reinforce our holding that claims of error 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 motion, absent a showing of a sufficient reason….

¶44. Consequently, we reaffirm our holding in Escalona that all claims of error that a criminal defendant can bring should be consolidated into one motion or appeal, and 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 postconviction motion absent a showing of a sufficient reason for why the claims were not raised on direct appeal or in a previous § 974.06 motion. Escalona, 185 Wis. 2d 168.

We agree with the logic of Napoles. For purposes of § 974.06, Stats., the reality of a probationary status is that it results directly from the trial court's consideration of dispositional alternatives at a sentencing hearing. Subject to any other bars, we conclude that all defendants on probation have standing to pursue postconviction relief under § 974.06.

¶15. When an adequate colloquy is not conducted, and the defendant makes a motion for a new trial or other postconviction relief from the trial court's judgment, the court must hold an evidentiary hearing on whether the waiver of the right to counsel was knowing, intelligent and voluntary....

¶16. We conclude that the trial court conducted an adequate colloquy that demonstrates that Polak's waiver of the right to counsel was knowing, intelligent and voluntary; therefore, an evidentiary hearing on this issue was unnecessary.

¶8        A person convicted of a crime has a due process right to postconviction discovery if “the desired evidence is relevant to an issue of consequence.” State v. Ziebart, 2003 WI App 258, ¶32, 268 Wis.  2d 468, 673 N.W.2d 369. Whether to grant a motion requesting postconviction discovery is committed to the trial court’s discretion. Id.

¶3 We conclude that the plain language of § 974.07(6) gives a movant the right to conduct DNA testing of physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material, if the movant meets several statutory prerequisites. First, the movant must show that the evidence meets the conditions under Wis. Stat. § 974.07(2). Second, the movant must comply with all reasonable conditions imposed by the court to protect the integrity of the evidence. Third, the movant must conduct any testing of the evidence at his or her own expense. If a movant seeks DNA testing at public expense, the movant must proceed under § 974.07(7)(a) or (b), and satisfy the heightened requirements in subsection (7).

¶11. Hudson first argues that under Wis. Stat. § 974.07(6)(a), the State must "make available" physical evidence containing biological material for independent DNA testing. Subsection (6)(a) states:

Upon demand the district attorney shall disclose to the movant or his or her attorney whether biological material has been tested and shall make available to the movant or his or her attorney the following material:

1.  Findings based on testing of biological materials.

2.  Physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material. (Emphasis added.)

¶12. In the trial court, the State argued, and the court agreed, that Wis. Stat. § 974.07(6) did not compel the State to turn over evidence for independent DNA testing but only required the State to provide a movant access to review the material in order to determine which specific items he or she would like tested pursuant to a subsequent court order under subsection (7). On appeal, the State has reversed its position and concedes the trial court erred by construing the statute to prevent independent testing of certain items at Hudson's expense, subject to protective conditions imposed by the trial court. See Wis. Stat. § 974.07(6)(c) ("Upon motion of the district attorney or the movant, the court may impose reasonable conditions on availability of materials requested ... in order to protect the integrity of the evidence."). We accept the State's concession and, therefore, do not address this issue further.

¶13. Hudson also argues he is entitled to court-ordered DNA testing under Wis. Stat. § 974.07(7)(a). Subsection (7)(a) requires the trial court to order DNA testing when the following four conditions are met:

A court in which a motion under sub. (2) is filed shall order forensic deoxyribonucleic acid testing if all of the following apply:

   1.  The movant claims that he or she is innocent of the offense at issue in the motion under sub. (2).

   2.  It is reasonably probable that the movant would not have been prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense at issue in the motion under sub. (2), if exculpatory deoxyribonucleic acid testing results had been available before the prosecution, conviction, finding of not guilty, or adjudication for the offense.

   3.  The evidence to be tested meets the conditions under sub. (2) (a) to (c).

   4.  The chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect or, if the chain of custody does not establish the integrity of the evidence, the testing itself can establish the integrity of the evidence.

The trial court found, and the State argues on appeal, that Hudson could not establish the second condition. In light of the overwhelming evidence supporting Hudson's guilt, the court concluded it was not reasonably probable that Hudson would not have been convicted even if the supposed "exculpatory" DNA testing results showed animal blood. We agree.

¶22. We therefore conclude that the O'Brien "consequential evidence" test should not be used to decide whether to conduct an in camera review. A defendant requesting confidential records during postconviction discovery should be required to meet the preliminary Shiffra-Green burden. As with pretrial requests for confidential records, applying the Shiffra-Green test to the posttrial setting strikes the appropriate balance between the interests of the defendant and the State. It affords the defendant an opportunity to have a judge, an independent overseer, review the records while still protecting the privacy of the alleged victim. Then, if the defendant has shown an entitlement to an in camera review based upon the first four factors of the newly discovered evidence test, the trial court should apply the O'Brien "consequential evidence" test to determine whether the material it reviews during its in camera inspection should be disclosed to the defendant. We have every confidence in the trial courts to make a proper determination as to whether the disclosure of the information is necessary based on the competing interests involved in such cases. See Shiffra, 175 Wis. 2d at 611.

¶23. The State argues that this conclusion is inconsistent with our decision in Behnke. This is simply not the case. Like Behnke, here we have adopted the materiality test from Shiffra, as it has been clarified in Green, and applied it to the third newly discovered evidence factor. Behnke, 203 Wis. 2d at 54. Additionally, as we have indicated, in Behnke, the defendant was engaging in what can be characterized as a "fishing expedition" and we did not reach the question of whether the fifth newly discovered evidence factor-whether it is reasonably probable that a different result would be reached on a new trial-should have been applied. See id. From our discussion of Green and Ritchie it is clear that the fifth newly discovered evidence factor, which is similar to the O'Brien "consequential evidence" test, normally does not come into play until the trial court is actually conducting the in camera inspection in its chambers.⁵ As we discussed, in Ritchie, the Court concluded that when deciding whether to release the records to the defendant, the trial court should determine whether the evidence was material, meaning the court should ask whether the result of the proceeding would have been different had the evidence been disclosed to the defendant, a test that mirrors the O'Brien test. Thus, contrary to the State's assertions, our approach not only is consistent with our decision in Behnke, but also will bring Wisconsin into alignment with the teachings of the Supreme Court in Ritchie.

---

⁵ An exception would be if the trial court assumed the truth of every supposition the defendant hoped to gain by perusal of the confidential records, but nonetheless concluded that such evidence would not create a reasonable probability of a different result on retrial.

¶32. A defendant has a right to postconviction discovery if the desired evidence is relevant to an issue of consequence. State v. O'Brien, 223 Wis. 2d 303, 321, 588 N.W.2d 8 (1999). Further, a defendant seeking such discovery must establish that the evidence probably would have changed the outcome of the trial. Id. "The mere possibility that an item of undisclosed information might have helped the defense" is not enough. Id. We will uphold a court's denial of postconviction discovery absent an erroneous exercise of discretion. Id. at 320.

¶33. A defendant is not automatically entitled to a hearing on a postconviction motion. State v. Bentley, 201 Wis. 2d 303, 313, 548 N.W.2d 50 (1996). If a defendant presents only conclusory allegations that fail to raise a question of fact, or if the record conclusively demonstrates that the defendant is not entitled to relief, the court may deny the motion on its face. Id. at 309-10. Whether a motion alleges facts warranting relief, thus entitling a defendant to a hearing, is a legal issue we review de novo. Id. at 310. If the motion fails to allege sufficient facts, the trial court has discretion to deny the postconviction motion without a hearing, id. at 310-11, and this court reviews that denial solely to determine whether the court erroneously exercised discretion, id. at 311.

¶34. Here, we see no erroneous exercise of discretion. Responding to Ziebart's motion, the State conceded its difficulty in producing Mary but represented that she was never held in state custody or coerced for her testimony. Ziebart offered nothing more than Mary's acquaintance's impression to suggest otherwise. Moreover, as Ziebart concedes in his brief to this court, "the [S]tate, like any party, may use a subpoena or material[-]witness order to coerce a witness to attend the trial and answer questions." Thus, given that the State could have lawfully held Mary in custody to gain her testimony, the details of any such custody could establish nothing more than the "mere possibility" that such information "might have helped the defense." See id.

Rather, we believe that a determination whether evidence is of consequence will limit the remedy of post-conviction discovery to only those situations where it is warranted.... Rather, we hold that a party who seeks post-conviction discovery must first show that the evidence is consequential to an issue in the case and had the evidence been discovered, the result of the proceeding would have been different.

 ¶13   Although an indigent defendant does not have the right to pick his or her trial lawyer, Mulkovich v. State, 73 Wis. 2d 464, 474, 243 N.W.2d 198, 203–204 (1976) (“This court has frequently said that, except in cases of indigency, a defendant may have whatever counsel he chooses to retain and may refuse to accept the services of counsel he does not want.”), the indigent defendant is entitled to a lawyer with whom he or she can communicate, State v. Lomax, 146 Wis. 2d 356, 359, 362, 432 N.W.2d 89, 90, 92 (1988); anything less would make a mockery of the hallowed right to effective legal representation. The ability-to-communicate assessment is left to the reasoned discretion of the trial court. … Given what the trial court here knew, namely that Jones apparently had profound hearing problems, its inquiry into why Jones was frustrated with his lawyer’s interaction with him was inadequate to make an effective record as to why it denied his lawyer’s motion to withdraw, especially in light of the lawyer’s admission that, apparently, other than first meeting his client at the preliminary examination(!), he only met with Jones once—a meeting that, as noted, Jones told the trial court was not “a good meeting.”

¶14   As we have seen, the trial court gave two reasons at the end of the hearing on the motion of Jones’s lawyer to deny the lawyer’s request to be allowed to withdraw: (1) Jones was not entitled to pick his lawyer; and (2) Jones was not being denied his Sixth Amendment right to counsel. In light, however, of the trial court’s awareness of Jones’s apparent substantial hearing problems and Jones’s repeated and non-dilatory pleas to get the lawyer off the case, these reasons are conclusory at best and do not meet the Lomax-recognized duty to make sufficient inquiry. See ibid. The trial court’s explanations for denying Jones’s postconviction motion were little better.

…

¶19   Jones submitted substantial scientific and other evidence with his postconviction motion attesting to the difficulties persons like him have in communicating with the non-hearing-impaired, and, also that those who are not hearing-impaired may overestimate their ability to communicate with those who are. He is entitled to try to prove this at what Lomax recommends is the preferred approach—a retrospective evidentiary hearing. See id., 146 Wis. 2d at 365, 432 N.W.2d at 93. We reverse the trial court’s order denying without an evidentiary hearing Jones’s motion for postconviction relief, and remand this matter to the trial court with instructions to hold that hearing, giving Jones sufficient leeway to prove, by expert testimony if necessary, his contention that he had an irresolvable breakdown in communications with his trial lawyer. If, at the conclusion of that hearing, the trial court determines that was there was a substantial breakdown in communications between Jones and his lawyer, he is to be given a new trial, which is the relief Jones seeks on this appeal.

¶11      A circuit court acts within its discretion in denying without a Machner hearing a postconviction motion based on ineffective assistance of counsel when: (1) the defendant has failed to allege sufficient facts in the motion to raise a question of fact; (2) the defendant has presented only conclusory allegations; or (3) the record conclusively demonstrates that the defendant is not entitled to relief. Nelson v. State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972). “If the motion on its face alleges facts that would entitle the defendant to relief, the circuit court has no discretion and must hold an evidentiary hearing.” State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996). 

¶14 A hearing on a postconviction motion is required only when the movant states sufficient material facts that, if true, would entitle the defendant to relief. …

¶15 It has been said repeatedly that a postconviction motion for relief requires more than conclusory allegations. Despite the repetitive theme that such motions require the allegation of sufficient material facts that, if true, would entitle the defendant to relief, many defendants continue to file insufficient postconviction motions.…

…

¶21 There is a clear theme running through these and other similar cases. As we said in Bentley, the motion must include facts that "allow the reviewing court to meaningfully assess [the defendant's] claim." Bentley, 201 Wis. 2d at 314. For example, an insufficient statement that does not allow the court to meaningfully assess a defendant's claim might be an assertion that trial counsel did not adequately prepare for trial. This assertion is the defendant's opinion only, and it does not allege a factual basis for the opinion. On the other hand, a defendant's assertion that trial counsel failed to adequately prepare for trial because counsel did not review all the police reports and one police report contained exculpatory information that counsel did not put into evidence, alleges a factual basis for the assertion. See Saunders, 196 Wis. 2d at 51-52.

¶22 In addition, facts that allow a reviewing court to meaningfully assess a defendant's claim are those facts that are material to the issue presented to the court. A "material fact" is: "[a] fact that is significant or essential to the issue or matter at hand." Black's Law Dictionary 611 (7th ed. 1999). …

¶23 As an assistance to defendants and their counsel, we propose that postconviction motions sufficient to meet the Bentley standard allege the five "w's" and one "h"; that is, who, what, where, when, why, and how. A motion that alleges, within the four corners of the document itself, the kind of material factual objectivity we describe above will necessarily include sufficient material facts for reviewing courts to meaningfully assess a defendant's claim. …

¶8        To prevail on a motion for reconsideration, a party must either present newly discovered evidence or establish a manifest error of law or fact. Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI App 129, ¶44, 275 Wis. 2d 397, 685 N.W.2d 853. A manifest error of law occurs when the circuit court disregards, misapplies, or fails to recognize controlling precedent. Id.

¶9        We review a circuit court’s denial of a motion for reconsideration to determine if the court properly exercised its discretion. Id., ¶6. A circuit court erroneously exercises its discretion if that exercise is based on an error of law, State v. Davis, 2001 WI 136, ¶28, 248 Wis. 2d 986, 637 N.W.2d 62, and we review questions of law de novo. See State v. Kramer, 2001 WI 132, ¶17, 248 Wis. 2d 1009, 637 N.W.2d 35. The issue of the correct legal standard presents a question of law. Id. Thus we review de novo whether the court’s denial of the motion for reconsideration was based on an error of law in that it did not apply controlling precedent.

Second, Schulpius argues that the trial court did not have jurisdiction to grant on November 29, 2000, the State's motion for reconsideration because the case was then on appeal. We disagree. Wisconsin Stat. § 808.075(1) specifically permits the trial court to entertain motions for reconsideration pending appeal and there is nothing in either § 808.075 or in Wis. Stat. ch. 980 itself to the contrary. As the supreme court recently reiterated:

Motions for reconsideration pending appeal serve an important function. A circuit court's reconsideration may obviate the need for an appeal. Allowing such motions could, therefore, not only spare the parties unnecessary expense, but could also serve the goal of judicial economy. Even if an appeal is not avoided, a motion for reconsideration enables a circuit court to hone its analysis and thus expedite the appellate review process.

Highland Manor Assocs. v. Bast, 2003 WI 152, ¶17, No. 02-2799 (footnote omitted).

¶1        Jermaine Smith appeals from an order denying his “motion to amend his Judgment of Conviction to reflect his common law spiritual name,” which he states is “Marcolo Von Capoeira.” Because Smith’s motion fails to provide any support for his assertion that he used the name Marcolo Von Capoeira for ten years (including four years prior to the time his crime was committed) and because he did not raise this issue during his criminal case, we affirm the order.

…

¶11      Like Tiggs, Smith is asserting that his name was legally changed prior to the time he committed the crime for which he is imprisoned. Unlike Tiggs, Smith asserts that his name was changed not by virtue of a court order, but by application of common law. Smith is correct that Wisconsin law allows one to change one’s name via the common law. See State v. Hansford, 219 Wis. 2d 226, 246, 580 N.W.2d 171 (1998) (Wisconsin “recognize[s] the common law right to change one’s name through consistent and continuous use, as long as the change is not effected for a fraudulent purpose.”). However, we conclude that Smith’s motion—which was based on his assertion that he changed his name via the common law—failed to provide any evidence that he changed his name through consistent and continuous use. Moreover, he failed to raise this issue during the pendency of his criminal case, even though he was supposedly already using the name Marcolo Von Capoeira during that time. For these reasons, the motion was properly denied.

¶9. We agree with Tiggs that once he has changed his legal name, he has a positive right to be called by that name. But he may also, by conduct, forfeit that right. If he calls himself by some other name, he has announced to the world that he goes by that other name and others then have the right not only to call him by that other name, but to create and file documents under that name. Tiggs had the initial control after the name change to dictate what name he was going to be called, but he relinquished that control. He cannot now assert control on a haphazard basis whenever he wants to and assume that every entity must accede to his wishes. As the trial court properly noted, to rule for Tiggs would be to allow him an avenue to manipulate the criminal justice system at his will. That cannot be allowed or condoned.

¶22 In summary, when the basis for a reconsideration motion is a recent decision, the test for appellate jurisdiction is still the Ver Hagen rule [Ver Hagen v. Gibbons, 55 Wis. 2d 21, 197 N.W.2d 752 (1972)]. Here, the State's motion for reconsideration injected an entirely new issue into the case-a claim that the combination of probable cause and exigent circumstances served to justify the police conduct under Hughes. If the State wanted to complain about the trial court's rejection of that claim on reconsideration, it was duty bound to appeal that ruling. It has not. Therefore, the Hughes issue is not properly before us. We accordingly limit our review to the matters covered by the trial court's original order suppressing evidence.

¶11. Parker's reliance on Perry is misplaced. Perry's concern is the protection of a defendant's right to a meaningful appeal by assuring a defendant's access to a full and complete transcript of the trial. Id. Here, however, we address the destruction of an audiotape that was provided to the defendant prior to but never utilized at trial. The import of such a tape and the import of a trial transcript cannot be equated.
¶12. Providing a defendant a full transcript guarantees that the defendant has the opportunity to analyze the proceedings of the trial court and to challenge any errors. State v. Raflik, 2001 WI 129, ¶31, 248 Wis. 2d 593, 636 N.W.2d 690. But again, the tape here was never made a part of the trial court record by Parker or the State. In deciding whether an error warrants a new trial, we are limited to the record of the proceedings in the trial court and the appellate record cannot be enlarged by materials which were not made part of the record in the trial court. Verex Assurance, Inc. v. AABREC, Inc., 148 Wis. 2d 730, 734 n.1, 436 N.W.2d 876 (Ct. App. 1989).  Perry has never been extended to cover the destruction of or absence of items not a part of the trial court proceedings.

¶14          We begin with the length of time between the hearing that should have been recorded and the reconstruction—fifteen months. Raflik specifically noted that the eighteen hours that had passed before reconstruction was “in sharp contrast” with the four-month delay in the Washington case. Fifteen months is obviously much longer than four months, and is certainly long enough for recollections to become inaccurate.  Because the reconstruction here was primarily based on the recollections of the judge and the assistant district attorney, we conclude this passage of time weighs against reconstruction.

¶15      Another factor is the length of the reconstructed segment. … We agree with the judge that the waiver portion of the hearing might take a short period of time, but it also might take longer. Therefore, this factor is neutral at best. 

¶16      Next is whether there were any contemporaneous documents used to reconstruct the record.  Here there are none. … Therefore, this factor weighs against reconstruction.

¶17      The availability of witnesses used to reconstruct the record is another factor. Here, all the necessary witnesses were available and testified. Therefore, this factor does not weigh against reconstruction. 

¶18      The final factor is the complexity of the segment reconstructed. As we have noted, there must have been a specific and significant colloquy with DeFilippo to establish he adequately waived his right to counsel. See Klessig, 211 Wis. 2d at 206-07. This involves a discussion of several factors. Thus, we conclude the reconstructed segment is fairly complex, dealing with an important constitutional right and therefore weighs against reconstruction.

…

¶20      After reviewing the factors, we conclude the court erred in reconstructing the record. As we have noted, the court must be satisfied beyond a reasonable doubt that the reconstructed record adequately reflects what actually occurred. Id., ¶54. Here we are particularly concerned with the amount of time that passed before reconstruction; the fact that the reconstruction was done simply based on the recollection of the parties, with no corroborating notes or documents; and the fact that the reconstructed hearing dealt with a basic and fundamental constitutional right. We therefore conclude there is reasonable doubt that the reconstruction is adequate to show that all the required factors necessary for waiver were explored. Consequently, the record does not show that DeFilippo knowingly and voluntarily waived his right to counsel. We thus reverse the judgment against him and remand for a new trial.

¶1. This case requires us to decide whether suppression is the proper remedy when a telephonic application for a search warrant is not recorded in accordance with Wis. Stat. § 968.12(3)(d)1, and when the factual basis for the warrant is reconstructed in an ex parte hearing after the warrant has been executed. We conclude that suppression is improper, and that the warrant application in this case was appropriately and adequately reconstructed.

¶39. We hold that the reconstruction procedures articulated in Perry and DeLeon may be used in a situation where a telephonic warrant application has mistakenly not been recorded. Where there is no evidence of intentional or reckless misconduct on the part of law enforcement officers, a reconstructed warrant application may serve as a functional equivalent of the record of the original application. Such a reconstruction, when made appropriately, can protect the defendant's right to a meaningful appeal, as well as the defendant's ability to challenge the admission of evidence in a suppression hearing.

¶11. We next address the defendant's allegation that the trial court erroneously exercised its discretion when it denied his request to file his sentence modification motion under seal. "Documents are presented under seal precisely so that their secrecy might be preserved and disclosure to the public might be prevented." State v. Gilmore, 201 Wis. 2d 820, 833, 549 N.W.2d 401 (1996). …

¶12. The defendant explained that he sought such an order so that he could quote from the sealed sentencing transcript. The trial court denied this request without giving its reason or holding a hearing. Without any explanation from the trial court as to its reasons for the denial, the defendant was prohibited from quoting from the sentencing transcript. Having no explanation of the court's decision, and noting that the defendant appears to have been severely restrained in presenting his request for sentence modification, we conclude that the trial court erroneously exercised its discretion in denying the request. On remand, we order the trial court to allow the defendant to supplement his motion under seal. For the reasons stated, we reverse the trial court and remand with directions.

¶37      In the hope of clarifying appellate procedure, we conclude that when a defendant seeks modification of the sentence imposed at resentencing, Wis. Stat. (Rule) § 809.30(2) and Wis. Stat. § 973.19 require the defendant to file a postconviction motion with the circuit court before taking an appeal. These rules on sentence modification apply even though the sentence imposed at resentencing is identical to a previous sentence. ^[12] The rules apply regardless of whether a defendant challenges the original sentence, a sentence after revocation, or the sentence imposed at resentencing.

¶38      Because, however, Wis. Stat. (Rule) § 809.30(2) and Wis. Stat. § 973.19 are silent in how they relate to a motion to modify a sentence imposed at resentencing, we conclude that there is good cause to grant Walker an extension of time to file a notice of intent to pursue postconviction relief.

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 ^[12]  Wisconsin Stat. (Rule) § 809.30(2)(h) recognizes two situations in which a defendant need not go back to the circuit court: when the grounds for seeking relief are "sufficiency of the evidence or issues previously raised." These exceptions would not normally apply to modification of a sentence.

¶10 The rule we derive from Drake and Tobey is that a defendant cannot use WIS. STAT. RULE 809.30 in conjunction with WIS. STAT. § 973.19(1)(b) to raise issues that go back to the original judgment of conviction. A challenge to a post-revocation sentence does not bring the original judgment of conviction before the court. See Drake, 184 Wis. 2d at 399-400. However, the decisions in Drake and Tobey do not preclude a defendant from taking a direct appeal from a subsequent judgment of conviction. A defendant facing a new judgment after revocation of probation must have an opportunity to fully litigate issues initially raised by the events of the resentencing hearing and the judgment entered after that hearing.

¶1. The Petitioner, Norman O. Brown, seeks reinstatement of his petition for review which was previously dismissed as untimely filed. Brown contends that this court should apply retroactively the tolling rule for pro se prisoners that it adopted in State ex rel. Nichols v. Litscher, 2001 WI 119, 247 Wis. 2d 1013, 635 N.W.2d 292, and deem his petition for review "timely."

¶2. We now conclude that the tolling rule we adopted in Nichols is a civil procedural rule with limited retroactive application. It applies retroactively to cases on direct review or not yet final when Nichols was decided and to pro se prisoners who had raised the issue in habeas petitions that were still pending before this court. Because this court denied Brown's petition for review prior to deciding Nichols, he is not entitled to relief under this application of the tolling rule. However, we determine that denying relief to Brown would be unjust because this court denied Brown's petition for habeas corpus while nearly simultaneously granting Nichols' petition raising virtually the same claim. Accordingly, we reinstate Brown's petition for review pursuant to Harmann v. Hadley, 128 Wis. 2d 371, 382 N.W.2d 673 (1986).

¶11 We decline to interpret the term 'file' in § 808.10 and § 809.62(1) to mean 'deposit in a prison mailbox.' We agree that such an interpretation may strain the plain language of both the statute and the rule. In addition, such a construction of the word 'file' seemingly conflicts with language in our prior decisions....

¶13 ... However, this does not mean that Nichols is without relief....

¶24 We are persuaded by the rationale in Houston and by the approach in Shimkus and its progeny. Accordingly, we apply a similar tolling rule to pro se prisoners who file petitions for review in this court....

¶27 While we do not mandate any particular procedure that litigants must follow, we note that both Nichols and the State agree that the factual question of the proper tolling date could be relatively easily resolved in most cases by the use of a certificate of service or affidavit of mailing. Such a certificate or affidavit may be desirable in that, as the State avers, many prisons do not have a general 'log-in' system that identifies the date on which a prisoner submits outgoing mail. A certificate or affidavit would create a rebuttable presumption that the prisoner had delivered his or her petition to the proper prison authorities on the particular day certified. We note, however, that a tolling rule will not excuse a pro se prisoner who ultimately fails to pay filing fees, address the petition properly, or otherwise comply with filing requirements....

¶32 In sum, we conclude that the 30-day deadline for receipt of a petition for review is tolled on the date that a pro se prisoner delivers a correctly addressed petition to the proper prison authorities for mailing....

¶19 … Further, Provo has not made the transcript of the plea hearing a part of the record. Consequently, we must assume that the transcript of that hearing supports the trial court’s finding that Provo’s plea was not coerced. See State v. McAttee, 2001 WI App 262, ¶5 n.1, 248 Wis. 2d 865, 637 N.W.2d 774 (“It is the appellant’s responsibility to ensure completion of the appellate record and ‘when an appellate record is incomplete in connection with an issue raised by the appellant, we must assume that the missing material supports the trial court’s ruling.’” (Citation omitted)).

¶19. On five previous occasions, Casteel's appeals have been dismissed based on Wis. Stat. § 974.06(4) and Escalona-Naranjo. This case is dismissed on the same basis. Because we conclude that Casteel knows or should know that this, his eighth postconviction order appeal, is without any reasonable basis in law or equity and is not supported by a good faith argument for an extension, modification or reversal of existing law, we determine that this appeal is frivolous. See Wis. Stat. Rule 809.25(3)(c)2....

¶23. The purpose of the frivolous claims and appeals statute, Wis. Stat. Rule 809.25(3) is 'to deter ... litigants ... from commencing or continuing frivolous actions and to punish those who do.' Village of Tigerton, 211 Wis. 2d at 785. However, '[w]ithout an order prohibiting future filings related to the same issues, these statues would be virtually useless against a pro se party who cannot pay.' Id. (quoting Minniecheske, 161 Wis. 2d at 748). Frivolous actions hinder a court's ability to function efficiently and effectively and to fairly administer justice to litigants who have brought nonfrivolous actions. A court may exercise its inherent power to ensure that it 'functions efficiently and effectively to provide the fair administration of justice,' City of Sun Prairie v. Davis, 226 Wis. 2d 738, 749-50, 595 N.W.2d 635 (1999), and to control its docket with economy of time and effort. Rupert v. Home Mut. Ins. Co., 138 Wis. 2d 1, 7, 405 N.W.2d 661 (Ct. App. 1987).

¶3        …  In this court's standard order accepting the certification, we stated that “the appeal is accepted for consideration of all issues raised before the court of appeals.” See State v. Stoehr, 134 Wis. 2d 66, 70, 396 N.W.2d 177 (1986) (“When this court grants direct review upon certification, it acquires jurisdiction of the appeal, which includes all issues, not merely the issues certified or the issue for which the court accepts the certification.” (citing Wis. Stat. § 808.05(2) (1983-84))).

¶29      When we accept certification from the court of appeals, we acquire jurisdiction of the entire appeal. We thus consider all issues raised before the court of appeals. See Wis. Stat. §§ 808.05(2) and (Rule) 809.61; State v. Stoehr, 134 Wis.  2d 66, 70, 396 N.W.2d 177 (1986). This case presents two separate questions of constitutional fact, which we address in turn.

¶24      We do not think that we place too much emphasis on Van Hout’s directive not to file a no-merit report, his failure to open the envelope containing counsel’s motion to withdraw, and his failure to respond to the August 8 order granting [counsel]’s motion to withdraw. A defendant who has been informed of his or her options by counsel bears the burden to exercise one of those options and so inform counsel. Flores, 183 Wis. 2d at 618-19. A defendant cannot remain mute in the face of a request from counsel for direction or when his or her rights to appeal and to counsel are at stake. See id. at 619. A defendant must accept responsibility for remaining mute, particularly when that defendant has not exhibited any prior difficulty making his views known to counsel and the court.

…

¶34      A defendant can waive the right to counsel by conduct. State v. Coleman, 2002 WI App 100, ¶16, 253 Wis. 2d 693, 644 N.W.2d 283. The right to counsel can be forfeited if a defendant’s conduct frustrates the orderly and efficient progression of the case. Id., ¶17. Van Hout was told he would not receive new counsel and he was advised of his options (proceed pro se or by retained counsel, no-merit report, or close the file). Had Van Hout responded to counsel’s motion to withdraw, he could have compelled counsel to file a no-merit report.^[6] Van Hout’s correspondence with this court and counsel reveals a defendant who did not continue his engagement with the court and counsel about postconviction relief and representation and who, by his conduct, forfeited his right to counsel.

¶35      We hold that the undisputed facts show that by his conduct, Van Hout knowingly and intelligently waived his right to counsel after receiving the required information and warnings. Thereafter, Van Hout proceeded pro se, and he permitted his appeal rights to lapse by not acting within the time limits set by this court. The petition for a writ of habeas corpus is denied.

¶12 We conclude, after reviewing the Supreme Court’s analyses in Robbins, that 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. We are satisfied that the postconviction representation provided to Ford in this case met these standards.

¶13 Finally, we note that competing professional considerations weighed against the filing of a no-merit report on the present facts. As the Supreme Court recognized in Robbins, an attorney may well have legitimate ethical qualms about filing a no-merit report under Wis. Stat. Rule809.32, 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.

¶9. Whether a criminal complaint sets forth sufficient probable cause to justify a criminal charge is a legal determination which we review de novo. State v. Adams, 152 Wis. 2d 68, 74, 447 N.W.2d 90 (Ct. App. 1989). Wisconsin Stat. § 968.01 requires a criminal complaint to meet probable cause requirements to confer personal jurisdiction on the circuit court. State v. White, 97 Wis. 2d 193, 197, 295 N.W.2d 346 (1980). A criminal complaint is a self-contained charge that must set forth facts within its four corners that are sufficient, in themselves or together with reasonable inferences to which they give rise, to allow a reasonable person to conclude that a crime was probably committed and the defendant is probably culpable. State v. Haugen, 52 Wis. 2d 791, 793, 191 N.W.2d 12 (1971). To be sufficient, a complaint must only be minimally adequate. This is to be evaluated in a commonsense, rather than a hypertechnical, manner in setting forth the essential facts establishing probable cause. State v. Gaudesi, 112 Wis. 2d 213, 219, 332 N.W.2d 302 (1983). A complaint is sufficient under this standard if it answers the following five questions: (1) Who is charged?; (2) What is the person charged with?; (3) When and where did the alleged offense take place?; (4) Why is this particular person being charged?; and (5) Who says so or how reliable is the informant? White, 97 Wis. 2d at 203.

The State asserts that Washington is precluded from making this argument on appeal because he did not object when the prosecutor made his recommendation before the circuit court. Generally, the failure to object is a “dispositive infirmity.” State v. Grindemann, 2002 WI App 106, ¶27, 255 Wis. 2d 632, 648 N.W.2d 507. We nevertheless choose to address the argument because it is likely to recur. See State ex rel. Krieger v. Borgen, 2004 WI App 163, ¶7, 276 Wis. 2d 96, 687 N.W.2d 79 (in the interest of judicial economy, we may address issues that are likely to recur).

¶6        Waiver. Before addressing the merits, the State argues that Tarrant’s no contest plea constitutes a waiver of all nonjurisdictional defects and defenses. State v. Multaler, 2002 WI 35, ¶54, 252 Wis. 2d 54, 643 N.W.2d 437. The guilty plea waiver rule is a rule of judicial administration and not of power. State v. Riekkoff, 112 Wis. 2d 119, 124, 332 N.W.2d 744 (1983). Therefore, in our discretion we can decline to apply the rule “particularly if the issues are of state-wide importance or resolution will serve the interests of justice and there are no factual issues that need to be resolved.” State v. Grayson, 165 Wis. 2d 557, 561, 478 N.W.2d 390 (Ct. App. 1991), aff’d, 172 Wis. 2d 156, 493 N.W.2d 23 (1992). Whether the State can modify or amend a previously issued detainer to block the application of the IAD has not been addressed in this state and must be resolved. In addition, the issue was rigorously litigated in the circuit court and our resolution will not sandbag the court. Finally, the parties have fully briefed the issue and, as we noted, the historical facts are not in dispute. We therefore turn to the merits of the issue.

¶43 Long did not advance this statutory interpretation argument at the circuit court or at the court of appeals. Normally, under such circumstances, we would conclude that an issue neither raised nor briefed is waived. Long's sole recourse would be to file a motion for post-conviction relief, perhaps alleging ineffective assistance of counsel.

¶44 Nonetheless, waiver is merely a rule of judicial administration. State v. Moran, 2005 WI 115, ¶31, 284 Wis. 2d 24, 700 N.W.2d 884. Waiver does not limit this court's authority to address unpreserved issues, particularly when doing so can clarify an issue of statewide importance. Clean Wis., Inc. v. Pub. Serv. Comm'n, 2005 WI 93, ¶¶270-71, 282 Wis. 2d 250, 700 N.W.2d 768. The proper interpretation of the persistent repeater statute is an issue of great importance in Wisconsin law. In this case, the circuit court, the State, and the defense attorneys misinterpreted the persistent repeater statute, and the court mistakenly sentenced Long to life imprisonment without the possibility of parole. Under these circumstances, we decline to conclude that this argument is waived.

The State argues we should consider Smith’s arguments waived, because a valid guilty plea waives all nonjurisdictional defects and defenses. See State v. Kelty, 2006 WI 101, ¶18, 294 Wis.  2d 62, 716 N.W.2d 886. Smith does not refute this argument. However, waiver is a rule of judicial administration, and we may ignore waiver rules if a case presents an important, recurring issue. State v. Leitner, 2001 WI App 172, ¶42, 247 Wis.  2d 195, 633 N.W.2d 207.

¶11      The problem with the State’s argument is that the evidence offered in Edmunds’s current postconviction motion is entirely different in character from the evidence offered in her 1997 postconviction motion. …

¶12      In her 1997 motion, Edmunds argued that the medical testimony she offered was newly discovered because defense counsel had not located the experts, who were from out of state, to provide a minority opinion that challenged the majority opinion expressed by the State’s witnesses at trial. The defense experts in the 1997 motion would have offered the existing theories in the medical community, disavowed by the mainstream, that shaking alone could not cause fatal injuries, that a previous brain injury can spontaneously re-bleed, and that an infant can experience a head trauma and have a significant lucid interval. In contrast, the defense experts who testified for the 2006 postconviction motion explained that in the past ten years, a shift has occurred in the medical community around shaken baby syndrome, so that now the fringe views posited in 1997 are recognized as legitimate and part of a significant debate. They explained that there has been significant development in research and literature that challenges the medical opinions presented at Edmunds’s trial. Thus, the State’s argument that this motion is the same as Edmunds’s 1997 motion, or that Edmunds could have raised her current arguments in her appeal from the circuit court’s 1997 decision, are unavailing. We turn, then, to the merits of Edmunds’s appeal.

¶15      The State first argues that Champlain has waived the armband issue. The State contends that Champlain cannot not be heard to complain about the jury seeing the armband device when he himself declined Strand’s offer of a long-sleeved shirt before he was brought into the courtroom for his trial.

¶16      However, waiver is the intentional relinquishment of a known right. State v. Matson, 2003 WI App 253, ¶41, 268 Wis. 2d 725, 674 N.W.2d 51. We indulge in every reasonable presumption against waiver of a constitutional right. See State v. Baker , 169 Wis. 2d 49, 76, 485 N.W.2d 237 (1992).  In this case, at virtually the last minute before entering the courtroom, Strand informed Champlain he had to wear the Band-It. This event occurred outside the courtroom setting and thus was not captured or preserved on the record. Nor was it memorialized by any other method. Generally, waiver will not be presumed from a silent record. See id. We are not prepared to hold that by opting to wear his own clothing instead of something from jail storage, Champlain should be held to have appreciated and weighed the legal implications of declining Strand’s offer. In short, the record does not show that Champlain intentionally relinquished a known right. ^[8] Matson, 268 Wis.  2d 725, ¶41.

¶13  … The State’s citation for the first time on appeal to Davis and Ross is not a new argument but citation to additional authority. Citation to additional authority and legal analysis on appeal does not constitute “new argument” or advancement of a new theory on appeal. See City of Oshkosh v. Winkler, 206 Wis. 2d 538, 547, 557 N.W.2d 464 (Ct. App. 1996) (Where we refused to apply waiver when a party gave only a scant argument to the trial court on a particular theory, but provided case authority and detailed analysis for this theory on appeal). The trial court was not blindsided by the State on appeal as Markwardt suggests. Even the short argument given by the State gave the trial court some idea of the State’s position. See id. at 548. If the court did not feel comfortable making a ruling because of the limited depth of the State’s analysis, it could have simply requested further briefing. See id.

¶11   As to the lack of contemporaneous objection, we note that Burton argued strenuously before Warmington testified that his proposed testimony would be irrelevant and prejudicial, and asked that he be subjected to a voir dire outside the jury’s presence. The circuit court denied Burton the requested voir dire ^[1] and further ruled that Warmington could offer testimony going to the truthfulness of the witnesses and to Burton’s intent. Burton was not obliged to restate his objections in the jury’s presence and thereby emphasize the testimony he believed prejudicial. See State v. Bergeron, 162 Wis. 2d 521, 527-29, 470 N.W.2d 322 (1991). ^[2]

¶12   As to Burton’s failure to raise a due process claim below, though Burton now states his claim in Constitutional language, his argument here is essentially the same as the one he made in the trial court: that Warmington’s testimony was highly and unfairly prejudicial and that its probative value was very limited. Though Burton identifies the Constitution as the grounds of his appeal, the line of cases on which he relies deals with evidentiary principles. ^[3] The State has addressed the same cases and arguments. As the State acknowledges, the rule of waiver is one of administration, not authority. See State v. Moran, 2005 WI 115, ¶31, 284 Wis. 2d 24, 700 N.W.2d 884. We see no just reason to avoid addressing Burton’s claims.

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 ^[2] The State also argues that Burton “adduced some of the evidence now complained about on appeal.” All of the testimony herein discussed was elicited by the State’s direct questioning, with the exception of Warmington’s testimony that an “excited utterance” is “usually … a very truthful statement.” Though Warmington made this statement during cross-examination, it was not directly responsive to the question asked: “Excited utterance means basically just saying something in the heat of the moment, right?” This question does not constitute a waiver on Burton’s part.

Based upon appellate counsel's response and the record, we conclude that trial counsel properly informed the juvenile about the rights of appeal. We are satisfied that before he absconded, Lamontae had sufficient information on the right of appeal and was able to make a fully informed decision about whether and how to exercise his right of appeal. See State ex rel. Flores v. State, 183 Wis.2d 587, 605, 516 N.W.2d 362, 367 (1994).

 ¶12. Accordingly, we agree with the trial court that the only reasonable reading of Wis. Stat. § 802.06, as applied to certiorari proceedings, is that a party who has unsuccessfully moved to dismiss on other grounds may still seek dismissal grounded on claim preclusion at any time before the court has considered the merits of the petitioner's claims. Here, the warden did so by raising claim preclusion in his brief responding to the substance of Barksdale's petition, thereby avoiding a waiver of the issue, notwithstanding his earlier motion to dismiss.

The State also argues that Cockrell waived his right to object on this ground because he did not move for a mistrial. We agree with Cockrell that the case the State relies on for this argument, State v. Davidson, 2000 WI 91, ¶86, 236 Wis. 2d 537, 613 N.W.2d 606, does not support the State’s position. In Davidson, the defense counsel’s objections to the prosecutor’s comments in closing argument were sustained and the defense counsel moved on without asking for a mistrial; the court held this was a waiver. 236 Wis. 2d 537, ¶5. The rationale for finding a waiver in this circumstance is that, when the court sustains the objection, without a request for a mistrial “all [the court] can assume is that the defendant was satisfied with the court’s ruling and curative measure, and that he had no further objections.” Neely v. State, 97 Wis. 2d 38, 55, 292 N.W.2d 859 (1980) (cited in Davidson, 236 Wis. 2d 537, ¶86). This rationale does not apply when the court has overruled the objection, as it did here.

¶61      The State points out that, in denying Schutte’s motion for postconviction relief, the trial court observed that the prosecutor’s discussion of “sympathy” in his rebuttal was largely a counter to defense arguments regarding the impact the “accident” had on Schutte. For example, defense counsel told jurors, “And I would ask you to consider [Schutte], who’s a victim in this accident also. She was seriously injured. She lost her boyfriend. She lost her best friend and lost another friend. No matter what the verdict is, she won’t move on from this.” The State also notes that courts in other states have concluded that it is not improper argument for a prosecutor to appeal to jurors to “send a message to the community” or to hold a defendant “accountable.” ^[12]

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 ^[12] See, e.g., Jowers v. State, 613 S.E.2d 14, 17 (Ga. Ct. App. 2005) (“‘It is not improper for a prosecutor to appeal to the jury to convict for the safety of the community, or to stress the need for enforcement of the laws and to impress on the jury its responsibility in that regard.’”); State v. Collins, 150 S.W.3d 340, 354 (Mo. Ct. App. 2004) (“The State may argue that the jury should ‘send a message’ that society will not tolerate certain conduct.”); People v. Howell, 831 N.E.2d 681, 692 (Ill. Ct. App. 2005) (not error for a prosecutor to ask jurors to “hold[] the defendant accountable for his actions”); Commonwealth v. Wheeler, 645 A.2d 853, 859 (Pa. Super. Ct. 1994) (not error for a prosecutor to tell jurors that “defendants should be held ‘accountable to the law of a civilized people.’”).

¶15. Mikrut did not raise his challenge to the circuit court's competency until long after the judgment against him had been upheld on appeal. The circuit court and the court of appeals therefore held that the argument was waived. …

…

¶18. Wisconsin case law is inconsistent on the question of whether a challenge to the circuit court's competency is subject to the common-law rule of waiver. …

…

¶26. To summarize, the cases regarding the waiver rule as applied to competency challenges have variously held as follows: 1) competency challenges cannot be waived at all (Nadia S.); 2) competency challenges cannot be waived if the alleged lack of competency relates to noncompliance with mandatory statutory time limitations, but no clear rule exists in other situations (B.J.N.); 3) competency challenges may be raised for the first time on direct appeal but are waived if not raised on direct appeal, that is, if raised for the first time on collateral challenge (Mueller); 4) competency challenges are waived for purposes of appeal if not first raised in the circuit court (G.L.K.); and 5) competency challenges are waived if not raised in the initial pleading (Wall). This conflicting body of case law cannot be reconciled.

¶27. We conclude that the following principles are sound and should be maintained: the common-law waiver rule applies to challenges to the circuit court's competency, such that a challenge to the court's competency will be deemed waived if not raised in the circuit court, subject to the inherent authority of the reviewing court to disregard the waiver and address the merits of the unpreserved argument or to engage in discretionary review under Wis. Stat. §§ 751.06 or 752.35. Because competency does not equate with subject matter jurisdiction, we see no reason not to apply the rule of waiver to these challenges as a general matter. A judgment rendered where competency is lacking is not void for lack of subject matter jurisdiction. Accordingly, a categorical rule that competency objections can never be waived is not justified. We withdraw the overbroad language in Nadia S. that attributed such a categorical rule of nonwaiver to the decision in B.J.N.

¶28. On the other hand, the approach in Wall was also unjustified. The failure to raise an objection to competency in a notice of appearance does not waive the right to bring such an objection in the circuit court action. We overrule Wall to the extent that it purported to establish such a restrictive pleading waiver rule.

…

¶30. Accordingly, we hold that challenges to the circuit court's competency are waived if not raised in the circuit court, subject to the reviewing court's inherent authority to overlook a waiver in appropriate cases or engage in discretionary review of a waived competency challenge pursuant to Wis. Stat. §§ 751.06 or 752.35. Because the competency challenge in this case is not premised upon noncompliance with statutory time limitations, we do not decide whether the particularized rule of nonwaiver stated in B.J.N. (statutory time periods cannot be waived) should be maintained.

…

¶38. We conclude that challenges to the circuit court's competency are waived if not raised in the circuit court. The waiver rule is a rule of judicial administration, and therefore a reviewing court has inherent authority to disregard a waiver and address a competency argument in appropriate cases. Also, Wis. Stat. §§ 751.06 and 752.35 may provide an avenue for discretionary review of an otherwise waived competency challenge in extraordinary cases. In addition, Wis. Stat. § 806.07(1)(h) may provide a vehicle for collateral relief from judgment on the basis of an otherwise waived competency argument--again, however, only in extraordinary cases. Mikrut's challenge to the circuit court's competency was waived.

¶17. When the State violated the stipulation and the court's order at trial, English- Lancaster did not immediately object. Instead, he first raised the issue when the jury was next excused. The State's argument for application of the contemporaneous objection rule puts English-Lancaster in a classic 'Catch-22' position. By not objecting, English-Lancaster is held to waiver. By objecting, English-Lancaster draws the jury's attention to the very prejudicial other acts evidence that the trial court had already ruled inadmissible. Recalling that one of the purposes of the contemporaneous objection rule is fairness (Davis, 199 Wis. 2d at 518), we will not apply the rule to permit such an unfair dilemma. The facts of this case do not demonstrate that English-Lancaster tactically laid in the weeds and then raised the issue later only when it was to his advantage. Erickson, 227 Wis. 2d at 766. We reject the State's contemporaneous objection argument.

¶18 This rule is also entirely consistent with our line of cases that recognize that a criminal complaint which fails to allege any offense known at law is jurisdictionally defective and void. See Champlain v. State, 53 Wis. 2d 751, 754, 193 N.W.2d 868 (1972); State v. Lampe, 26 Wis. 2d 646, 648, 133 N.W.2d 349 (1965). Once again, the premise behind the rule is simple. Circuit courts have original jurisdiction over all matters civil and criminal, except as otherwise provided by law. If a complaint fails to state an offense known at law, no matter civil or criminal is before the court, resulting in the court being without jurisdiction in the first instance.

¶19 We conclude that because Bush has facially challenged the constitutionality of chapter 980, his challenge goes to the subject matter jurisdiction of the court. Therefore, because challenges to subject matter jurisdiction cannot be waived, we reach the merits of his claim. ^[8]

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^[8] Common law principles of waiver generally apply to Bush's "as applied" constitutional challenge. See State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999) (noting that the waiver rule exists to promote efficiency and fairness); see also State v. Cole, 2003 WI 112, ¶46, 264 Wis. 2d 520, 665 N.W.2d 328, and State v. Trochinski, 2002 WI 56, ¶34 n.15, 253 Wis. 2d 38, 644 N.W.2d 891. Because Bush failed to raise this issue in his earlier appeals, and because we do not have all components of the record, we conclude that Bush has waived his as applied challenge. However, we decline to reach the question of whether a procedural bar, similar to one announced in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), applies.

Because Nelson is making facial challenges to the constitutionality of chapter 980, the State’s assertion that Nelson has waived his constitutional arguments lacks merit. See State v. Bush, 2005 WI 103, ¶19, 283 Wis. 2d 90, 699 N.W.2d 80 (“[B]ecause Bush has facially challenged the constitutionality of chapter 980, his challenge goes to the subject matter jurisdiction of the court [and] ... cannot be waived ….”), cert. denied, 126 S. Ct. 631 (2005).

¶17      First, at the very least, trial counsel’s objection should have led the court to Wis. Stat. §  904.08, which in turn would have brought Wis. Stat. §  904.10 to the court’s attention. Counsel used the phrase “offer to compromise” in framing her objection, and § 904.08 contains virtually identical language. See State v. Corey J.G., 215 Wis. 2d 395, 407 & n.7, 572 N.W.2d 845 (1998) (stating that although an objection must be sufficiently specific to apprise the trial court of the grounds on which it is based, it is not necessary for counsel to cite the precise statutory section at issue). Section 904.10 lies on the facing page to this statute directly in the reader’s field of vision in the current version of our statutes. Moreover, § 904.10 is directly on point. It categorically mandates the exclusion of plea offers. See State v. Mason, 132 Wis. 2d 427, 432-33, 393 N.W.2d 102 (Ct. App. 1986) (holding that “is not admissible” language in § 904.10 intended a prohibition “for any purpose”). Under the circumstances, § 904.10 was simply too conspicuous not to notice.

¶18      Second, one could reasonably conclude that Norwood ’s trial counsel did adequately preserve an objection based on Wis. Stat. § 904.10. Although it may not have been technically correct to characterize Norwood ’s letter as an “offer of settlement,” counsel appears to have used the term loosely to refer to the ultimate disposition of a case. …

¶19      Third, if we apply waiver to this case, Norwood would probably have grounds to claim ineffective assistance of counsel.  Counsel performs ineffectively when his or her performance is deficient and prejudices the client’s defense. …

¶8. As a threshold matter, we reject Edwards' challenge to the trial court's order staying Edwards' conditional jail time because the order was issued ex parte and without notice. We hold that Edwards failed to raise this issue with sufficient prominence before the trial court. Schwittay v. Sheboygan Falls Mut. Ins. Co., 2001 WI App 140, ¶16 n.3, 246 Wis. 2d 385, 630 N.W.2d 772 ("A party must raise an issue with sufficient prominence such that the trial court understands that it is called upon to make a ruling."). True, Edwards' motion stated as a matter of historical fact that the trial court had amended the judgment of conviction without a hearing. However, Edwards never argued this fact as a basis for the confinement credit he was seeking. Since Edwards failed to signal that this was a basis for his motion, the trial court understandably did not speak to this fact in its ruling.⁴

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⁴ Even if we were to address the issue on the merits, we would reject Edwards' argument because he has failed to demonstrate any prejudice. Although the trial court entered the stay order ex parte, the court functionally revisited the question at the postconviction proceeding and confirmed its prior ruling.

¶11. Under the doctrine of strategic waiver, also known as invited error, "[a] defendant cannot create his own error by deliberate choice of strategy and then ask to receive benefit from that error on appeal." Vanlue, 87 Wis. 2d at 460-61. Thus, whether a defendant has strategically waived an objection is a question of law subject to de novo review. See State v. Ruud, 41 Wis. 2d 720, 726, 165 N.W.2d 153 (1969). One commentator has remarked that Wisconsin's strategic waiver rule:

prevents a party from counterattacking with otherwise inadmissible evidence when he has deliberately chosen not to object with the aim of using the otherwise inadmissible evidence to his own advantage. . . . The flip side of this coin is that a party who does object to the use of inadmissible evidence by his opponent does not forgo his right to claim error on appeal merely because he makes an effort to use the same or similar evidence in a defensive fashion after he has failed in his effort to exclude the evidence.

1 Wigmore, Evidence § 15, at 733 n.3 (Tiller's rev. 1983)(emphasis in original) (citing Vanlue, 87 Wis. 2d at 460-62). Thus, there is a distinction between a party's use of objected to evidence for his own benefit and the use of such evidence purely for defensive purposes. Id., § 18, at 836-38 & n.37 (citing Vanlue, 87 Wis. 2d at 460-62).

¶14. Vanlue is directly on point with the present case. However, the State argues that we should overrule the court of appeals' holding in Vanlue regarding strategic waiver in light of Ohler v. United States, 529 U.S. 753 (2000); and State v. Frank, 2002 WI App 31, 250 Wis. 2d 95, 640 N.W.2d 198.

...

¶17. This court is not bound to follow Ohler. … While decisions of the Supreme Court interpreting the Federal Rules of Evidence may be persuasive authority, they are not binding on this court. State v. Blalock, 150 Wis. 2d 688, 702, 442 N.W.2d 514 (Ct. App. 1989). Ohler involved a judicial formulation of the strategic waiver rule to be used in federal courts; the Court's ruling did not involve a question of federal constitutional law or a construction of the Federal Rules of Evidence. The Court's formulation of the strategic waiver rule in Ohler is contrary to the approach Wisconsin courts have utilized. Finally, as the dissent recognized in Ohler, the majority's holding is against the great weight of academic authority. See Ohler, 529 U.S. at 762-63 (Souter, J., dissenting)(collecting authority).

¶18. … Therefore, we conclude that the court of appeals' formulation of the strategic waiver doctrine in Vanlue was correct and hold that under Wisconsin law, a defendant does not commit strategic waiver when he unsuccessfully objects to the introduction of evidence and preemptively introduces the evidence in an attempt to mitigate its prejudicial effect.

¶13      A valid guilty or no contest plea waives all nonjurisdictional defenses to a conviction, including constitutional violations. See State v. Riekkoff, 112 Wis. 2d 119, 122-23, 332 N.W.2d 744 (1983). One exception to this rule is the claim of ineffective assistance of counsel under the Sixth Amendment. State v. Kelty, 2006 WI 101, ¶43, __Wis. 2d__, 716 N.W.2d 886. Thus, though Milanes’ underlying claims involve a Fifth Amendment violation and a statutory defense, the ultimate question on this appeal is not whether these claims were valid, but whether his counsel was ineffective in his handling of them.

¶15      The record demonstrates that an exchange of promises in return for specific benefits occurred: (1) Bembenek would no longer be convicted of first-degree murder; (2) Bembenek would be eligible, under her new sentence for second-degree murder, for immediate release from prison to parole; (3) the State would no longer need to devote significant resources to Bembenek’s numerous collateral attacks on her convictions; and (4) Bembenek had been punished proportionately to the crime for which she was now convicted. Additionally, the plea agreement provided a final disposition in the murder case of Schultz for both parties and the community at large. There was a mutuality of assent to the terms of the plea agreement which was respected by Bembenek for ten years, until 2002, when she filed her motion for DNA testing and acquittal.

¶16      Bembenek’s no contest plea is equivalent to a guilty plea. “The general rule is that a guilty, no contest, or Alford ^[6] plea ‘waives all nonjurisdictional defects, including constitutional claims[.]’” State v. Kelty, 2006 WI 101, ¶18, ___ Wis. 2d ___, 716 N.W.2d 886 (citing State v. Multaler, 2002 WI 35, ¶54, 252 Wis. 2d 54, 643 N.W.2d 437). This is known as the guilty-plea-waiver rule. Kelty, 716 N.W.2d 886, ¶18. ^[7] Here Bembenek entered into a legally valid plea agreement. She entered into it knowingly, voluntarily and intelligently. See State v. Bangert, 131 Wis. 2d 246, 267-72, 389 N.W.2d 12 (1986) (holding that guilty and no contest pleas are constitutionally valid if entered knowingly, intelligently and voluntarily). She received substantial benefits from that agreement. In that plea agreement, Bembenek specifically waived her right to claim her innocence, and her right to collaterally attack any evidence which was underlying the conviction. Accordingly, Bembenek waived any right to DNA testing of that evidence or court action to pursue such tests.

¶2        We are asked to decide whether an otherwise satisfactory guilty plea is sufficient to relinquish a double jeopardy/multiplicity challenge upon direct appeal. We conclude that a guilty plea relinquishes the right to assert a multiplicity claim when the claim cannot be resolved on the record. When a defendant enters a knowing, intelligent, and voluntary guilty plea, the nature and effect of the plea necessarily mean that the defendant gives up the right to a fact-finding hearing on the propriety of multiple charges. United States v. Broce, 488 U.S. 563, 576 (1989).

¶3        Our decision should not be understood to render guilty pleas impervious to double jeopardy challenges. A defendant retains the right (1) to challenge whether a plea is knowing, intelligent, and voluntary by pointing to errors in the plea colloquy pursuant to State v. Brown, 2006 WI 100, __ Wis. 2d __, __ N.W.2d __ and State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986); (2) to claim the ineffective assistance of counsel pursuant to State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996); and (3) to challenge the authority of the state to prosecute her and the power of a court to enter the conviction or impose the sentence, where the existing record allows the court to determine whether the defendant's double jeopardy rights have been violated. See Broce, 488 U.S. at 569, 574-75. ^[3] Because Kelty's attempt to withdraw her guilty plea cannot meet any of these grounds for withdrawal, ^[4] we reverse the court of appeals.

¶14       As we have seen, the trial court did not require its court reporter to take down the tapes as they were being played. This was error. See State v. Ruiz-Velez, 2008 WI App 169, ___ Wis. 2d ___, 762 N.W.2d 449. ^[2] Huff did not object to the trial court’s decision to not have the tapes reported as they were played, and accordingly, the error was forfeited and we thus analyze the issue under an ineffective-assistance-of-counsel rubric. See State v. Carprue, 2004 WI 111, ¶47, 274 Wis. 2d 656, 678, 683 N.W.2d 31, 41–42. ^[3]

¶7        Forfeiture is a rule of judicial administration, and whether we apply the rule is a matter addressed to our discretion. ^[3] See Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 417, 405 N.W.2d 354 (Ct. App. 1987). We generally do not consider arguments not raised in the circuit court. See Gibson v. Overnite Transp. Co., 2003 WI App 210, ¶9, 267 Wis. 2d 429, 671 N.W.2d 388.

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 ^[3] The State uses the term forfeit and waiver interchangeably in its briefs. We note that our supreme court in State v. Ndina, 2009 WI 21, ¶¶29-30, __ Wis. 2d __, 761 N.W.2d 612, has determined that “forfeit” is the more appropriate term in the context presented here.

¶8        We conclude that Kaczmarski has forfeited his argument that the deferred prosecution agreement is subject to Wis. Stat. § 971.37. At the hearing on Kaczmarski’s motion to compel enforcement of the agreement, defense counsel expressly stated that no statute applied to the agreement, although he expressed his belief that Wis. Stat. § 971.39 provided some guidance. Kaczmarski failed to argue to the circuit court that § 971.37 applied to the agreement. In his reply brief, Kaczmarski essentially concedes that he did not raise this issue before the circuit court.

¶29      Although cases sometimes use the words "forfeiture" and "waiver" interchangeably, the two words embody very different legal concepts. "Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right." United States v. Olano, 507 U.S. 725, 733 (1993) (quotation marks and citation omitted).

¶30      In other words, some rights are forfeited when they are not claimed at trial; a mere failure to object constitutes a forfeiture of the right on appellate review. The purpose of the "forfeiture" rule is to enable the circuit court to avoid or correct any error with minimal disruption of the judicial process, eliminating the need for appeal. ^[5] …

¶31      In contrast, some rights are not lost by a counsel's or a litigant's mere failure to register an objection at trial. These rights are so important to a fair trial that courts have stated that the right is not lost unless the defendant knowingly relinquishes the right. …

¶34      Thus the court of appeals decision leaves open the question whether the defendant's failure to object at trial to closure on the ground of a violation of the Sixth Amendment constitutional right to public trial should be analyzed as a "waiver" or as a "forfeiture" of the defendant's right to raise the issue on appellate review.

¶35      The defendant and State dispute whether a "waiver" or "forfeiture" standard applies to a defendant's assertion of a violation of the right to a public trial. The case law is divided regarding whether a defendant's failure to object timely to a trial court's alleged violation of the right to a public trial should be analyzed under the waiver or forfeiture standard. Some cases conclude that before a defendant is held to have waived the Sixth Amendment right to a public trial, there must be an intelligent relinquishment of the known right. ^[9] Other cases conclude that a defendant loses (forfeits) the Sixth Amendment right to a public trial when the defendant or defense counsel fails to assert a timely objection at trial to the court's order of closure. ^[10]

…

¶38      … Here both parties failed to make objections in a timely manner, but they have fully briefed the important substantive issue. This court should, under these circumstances, reach the merits of the issue presented, namely whether the circuit court's order violated the defendant's right to a public trial, rather than address whether either or both of the parties waived or forfeited their right to make certain arguments on review.

¶36      The parties agree with the court of appeals that the circuit court's communications with the jury outside the presence of the defendant is error, violating the defendant's constitutional and statutory right to be present.  We agree with the parties.

…

¶63      (W)hatever the requirement for an accused's waiver of the right to be present when a circuit court communicates with the jury, something more than the failure to object is needed to convert the challenge from a direct challenge to the alleged error to a claim of ineffective assistance of counsel.  

¶64      We conclude that although neither the defendant nor defense counsel objected to the circuit court's communicating with the jury in the defendant's absence, the alleged error is treated as a direct challenge in the appellate court, not as a claim of ineffective assistance of counsel.

¶34 Subsection (3) of § 906.14 authorizes objections, and it "defers the requirement of a timely objection . . . to the next available opportunity when the jury is not present." Id. R202. This subsection appears to focus more on situations where the judge questions witnesses in front of a jury than where a judge questions a witness in a bench trial or outside the presence of a jury.

¶35 Given the explicit authority to object to a judge's action, Carprue could have challenged Judge Schellinger's decision to call Kenneth Morrow to the stand. He did not. He could have objected to a particular line of inquiry. He did not. He could have offered a motion in limine to bar the State from calling Morrow as a rebuttal witness. He did not. Consequently, Carprue waived his right to object to the judge's actions.

¶36 There are several reasons why we are disinclined to overlook the defendant's failure to timely object. First, the general rule in Wisconsin is that issues not raised in the circuit court are deemed waived. …

¶37 Second, the policies underlying the waiver rule are especially well illustrated in this case. …

¶38 Here, the judge acted outside the presence of the jury. The defendant would not have been embarrassed in front of the jury by launching an immediate objection to either of the judicial actions about which he now complains. …

¶39 Finally, because appellate courts are sensitive to judicial intervention by a trial judge in the form of judicial witnesses and judicial questioning, circuit courts are likely to be very cautious when they are given fair notice that their conduct raises concerns.

…

¶46 We presume that circuit judges try to be fair and impartial in their conduct of trials, and this presumption must be overcome by proof except in extreme cases of structural error. A defendant's failure to promptly raise concerns or object when he believes a judge is committing error constitutes waiver.

¶8 The State first responds that Tremaine’s challenge to the 2001 change of placement order is too late, and that this is an improper forum for a collateral attack on that order. We disagree. Tremaine does have the right to challenge that placement order in the context of this WIS. STAT. ch. 980 proceeding. See, e.g., Neylan v. Vorwald, 124 Wis. 2d 85, 97, 368 N.W.2d 648 (1985). “When a court or other judicial body acts in excess of its jurisdiction, its orders or judgments are void and may be challenged at any time.” Id. (citation omitted). Furthermore, collateral attack is a proper method for challenging the order or judgment. Id. If Tremaine can demonstrate that the order was void, he is entitled to have it treated as a “legal nullity.” Id. at 99 (citation omitted). We will therefore consider Tremaine’s argument in the context of the ch. 980 petition.

¶25. Polashek first argues that the appeal was waived because it was not raised in the circuit court. We disagree. The court of appeals correctly noted that, although the general rule is that issues not raised in the circuit court are deemed waived, the rule is not absolute and does not relate to the appellate court's jurisdiction. See Apex Elec., 217 Wis. 2d at 384. Because the issue involved a question of law that had been fully briefed by both parties, and was of sufficient public interest to merit a decision, the court of appeals exercised its discretion to address the issue. Id.; Polashek, 2001 WI App 130, ¶28. We agree with the court of appeals' reasoning, and conclude that the court of appeals properly addressed the issue.

¶12. Second, assuming this was a DPA, Wollenberg claims the judgment is void because the agreement was never in writing. Wollenberg, however, invited the error he alleges, and we normally will not review invited error. See Atkinson v. Mentzel, 211 Wis. 2d 628, 642-43, 566 N.W.2d 158 (Ct. App. 1997).

¶13. As noted, Wollenberg failed to timely raise this issue in the trial court. That alone fails to preserve the issue for review. See In re Eugene W., 2002 WI App 54, ¶13, 251 Wis. 2d 259, 641 N.W.2d 467. Instead, he expressly urged the court to adopt the terms of the plea agreement as recited by the prosecutor. He also agreed to the order deferring entry of judgment. The court followed the parties' joint recommendations, and under such circumstances we do not allow a defendant to cry foul on appeal. See In re Shawn B.N., 173 Wis. 2d 343, 372, 497 N.W.2d 141 (Ct. App. 1992) (if error occurred, defense counsel invited it); Zindell v. Central Mut. Ins. Co., 222 Wis. 575, 582, 269 N.W. 327 (1936) (appellant cannot complain of errors induced by appellant).

¶13 Before addressing Sprang’s claim of ineffective assistance of counsel, we must first address whether there was, in fact, a material and substantial breach of the plea agreement. State v. Naydihor, 2004 WI 43, ¶9, ___ Wis. 2d ___, 678 N.W.2d 220. If we conclude that there was not a breach of the plea agreement, then defense counsel’s failure to object would not constitute deficient performance. Id. We therefore turn to the primary issue on appeal— whether the State breached the terms of its plea agreement with Sprang.

¶27 ... Here, Grindemann did object to the prosecutor's mention of uncharged offenses at sentencing, but the objection was based on the lack of evidence 'properly before the court,' not on any claim that the State was violating either the terms or the 'spirit' of the plea agreement. Moreover, the court sustained the objection and admonished the prosecutor to '[b]e more cautious' in his comments, suggesting that the court agreed with Grindemann¹s point that it should not consider any uncharged offenses for which no evidence was presented. Thus, even if prosecutorial silence regarding uncharged offenses was an implied provision of the parties' plea agreement, Grindemann obtained 'specific performance' of that provision when the court sustained its objection.