• Briefs -- § 809.19, Briefs and Appendix
  • Appendix -- Composition
  • Argument -- Must be Supported by Authority
  • Citing Unpublished Opinions
  • Factual Recitation
  • 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
• 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)
• 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
• Civil Commitments (TB/NGI / SVP)
• Competency of Defendant
• Competency of Trial Court
• Confession
• Confrontation
• Constitutional Challenge to Statute
• Counsel
  • Assertion / Waiver
  • Ineffective Assistance
  • Sanctions
• 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
• Reasonableness
• Restitution
• Search & Seizure
• Sentence / Probation
• 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 ....”).

¶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.)

¶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.

---

 ^[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.