Marla J. Stephens, Appellate Division Director
Office of the Wisconsin State Public Defender
Revised September 2006

www.wisspd.org

II.      BEGINNING APPELLATE REPRESENTATION
		A.	REVIEW THE APPLICABLE RULES OF APPELLATE PROCEDURE.
			1. Read Wis. Stats. (Rules) 809.30, .31 and .32. Review other rules of appellate procedure in chs.  808, 809 and 974.
			Caution: Rules 809.30 - .32 govern appeals in all criminal, chapter 48 (Children's Code), 51 (Civil commitment), 55 (Protective Placement),  938 (Juvenile Justice Code), and 980 (Sexually Violent Person) cases except:
			Termination of Parental Rights (TPR)) appeals are governed by the procedures and time limits in Wis. Stat. Rule 809.107. The time limits within which to file a NOI (30 days after judgment) and a Notice of Appeal (NOA) cannot be extended unless the judgment terminating parental rights was entered on or after April 21, 2006.
			Chapter 980 (Sexually Violent Person) commitment appeals are governed by the rules of civil procedure if the petition for commitment was filed before August 1, 2006. In these cases, a Notice of Appeal (NOA, not a NOI) MUST be filed within 90 days of entry of judgment, unless written notice of entry of judgment is filed--then 45 days. This NOA time limit cannot be extended. Appeals from Ch. 980 judgments in cases where the petition was filed on or after August 1, 2006 should be initiated by filing a NOI pursuant to Rule 809.30 and § 980.038 (4).
			2. Review the "Appellate Division's Minimum Attorney Performance Standards" at http://www.wisspd.org/html/appellate/AppAttyPerfStan.asp.
			3. Review the Direct, Civil and TPR Appeal Timetables available at http://www.wisspd.org/html/appellate/appellate2.asp. Review the rules governing the calculation of time limits in Rule 801.15 (1) and (5).
		B.	CHECKLIST
			1.	Check for conflicts.
			2.	In Milwaukee County cases, obtain copy of presentence investigation report (PSI). (See II. F. 2. below.)
			3.	Check file for documents you should have received from SPD (See I. D., above), obtain any missing documents.
			4.	Determine if judgment has been stayed or if client has been released pending appeal, take appropriate action (See II. C., D. & E., below).
			5.	Notify client of your appointment and briefly outline appellate process. Ask what you should be looking for when you review the record and why client wants to appeal. Establish how and when communication will occur in the future: find out how to contact client and advise client how to contact you.
			6.	Contact trial counsel (and review SPD Appellate Questionnaire from trial counsel, if available): Potential issues? Discovery, investigation and expert reports available?
			7.	Note deadline for transcripts in your calendar and your file, and develop a system of tracking transcripts and future deadlines (See II. F., below).
		C.	RELEASE PENDING CRIMINAL APPEAL
969.01 (2), 809.31, State v. Firkus, 119 Wis. 2d 154 (1984); State v. Salmon, 163 Wis. 2d 369 (Ct. App.1991).			1.	If conviction is for a misdemeanor committed on or after 5/14/98 [Note: absolute right to release for misdemeanors before that date] or for a felony, release pending appeal may be allowed in the discretion of the circuit court, if: •No substantial risk of failure to appear to answer the judgment after completion of appeal; •Defendant not likely to commit serious crime, intimidate witnesses, or otherwise interfere with administration of justice; •Defendant will promptly prosecute postconviction proceedings; and •Postconviction proceedings are not taken for purposes of delay. The Court shall consider: •Nature of crime; •Length of sentence; •Other factors relevant to pretrial release.
				The court can also consider the likelihood of success on appeal.
State v. Taylor, 205 Wis. 2d 664 (Ct. App. 1996) .			2.	Court may not require cash bail as condition of release for indigent defendant unless necessary to ensure appearance at further proceedings, but may impose non-monetary conditions.
			3.	Available after the NOI filed. On motion, circuit court must promptly hold a hearing, determine the motion by order, and state grounds for the order.
809.31 (5) 969.01 (2) (e)			4.	Either party may appeal circuit court decision by motion in court of appeals under Rule 809.14--standard is erroneous exercise of discretion.
			5.	The court of appeals, the supreme court, or a judge or justice thereof may also order release pending appeal.
			6.	In Milwaukee County, misdemeanor cases are scheduled for appeal status hearings - check the judgment docket and mark your calendar - you and client must appear.
		D.	STAY PENDING APPEAL
808.07 (2)			1.	While an appeal is pending, a circuit court or appellate court may stay execution or enforcement of a judgment or order.
809.12			2.	The stay motion must be filed first in the circuit court unless "impractical." Note: "impractical" is construed very narrowly--counsel should try to obtain a stay from the circuit court before going to the court of appeals.
809.12			3.	Court of appeals will review circuit court decision on motion for relief pending appeal.
			4.	Criteria for stay pending appeal:
State v. Gudenschwager, 191 Wis. 2d 431 (1995).					•strong showing that moving party is likely to succeed on merits; •showing that moving party will otherwise suffer irreparable injury; •showing that no substantial harm will come to other parties, and; •showing that stay won't harm public interest.
			5.	In emergency cases, an appellate judge can grant temporary relief ex parte.
			6.	Stays pending appeal are used most frequently in juvenile (chs. 48 and 938) and civil commitment proceedings (chs. 51 and 55), where a court order may call for a short period of detention or may expire within 6-12 months.
		E.	TRANSCRIPTS
809.11 (7) (a)			1.	Court reporter must notify all parties to the appeal when the transcript is filed in the circuit court.
809.30 (2) (h) 809.10 (1) (b) 5.			2.	Track your receipt of the transcripts requested by the SPD -- your deadline to file a notice of appeal (NOA) or motion for postconviction or postdisposition relief (PCM) is 60 days from date of service of last transcript or court record, whichever is later. (If mailed, 63 days from the postmark.)
801.14 & 801.15			3.	Definition of service, and computation of time.
809.11 (7) (c) & (d); State v. DeFilippo, 2005 WI App 213; State v. Raflik, 2001 WI 129.			4.	Late transcript: It is counsel's responsibility to monitor production of the transcripts to ensure that the case proceeds in a timely manner. Follow-up with reporters by phone or letter. If no response, file a motion for sanctions against reporter in court of appeals. Reporter may file motion to extend time to file transcript and must serve copy of same on the parties, the clerk and the District Court Administrator.
809.11 (5), 809.14 (3) (b), 809.15 (3) & (5), State v. Perry, 136 Wis. 2d 92 (1987); State v. DeFilippo, 2005 WI App 213.			5.	Missing or defective transcript: File motion to supplement, correct or reconstruct record. If omissions are significant and irreparable, reversal warranted.
		F.	PRESENTENCE INVESTIGATION REPORTS (PSI), EXHIBITS AND OTHER MISSING COURT RECORDS
			1.	PSI:
972.15				Counsel may keep a copy of the PSI and review PSI with client, however, copying PSI to give to client requires court order. See § 972.15 (4m). In Milwaukee County, PSIs are part of the circuit court record but are not maintained in the case file in the clerk’s office. The PSIs will be sent to SPD appointed counsel by DOC pursuant to a standing order of the Chief Judge Michael Sullivan entered on March 12, 2004.  The following procedure should be used to obtain the PSI: •Identify the agent who prepared the PSI.  The agent’s name, DOC # and FAX #  may be obtained from the Probation and Parole Office for Milwaukee County 414-227-4544. •Fax the agent a request for the PSI which includes the agent’s name, DOC number, phone and fax #, and the client’s name, date of birth and case number.  The request should indicate that it is being made pursuant to Judge Sullivan’s standing order and should, as an attachment, include the order appointing counsel.  •Any problems with the process should be referred to the Milwaukee Appellate Office Attorney Supervisor, 414-227-4805. Note: Other counties may also require court orders to obtain the PSI and/or have a different procedure for obtaining them.
			2.	Copies of sentencing guideline worksheets may be available from the Sentencing Commission, P. O. Box 7856, Madison, WI, 53707-7856, by making an open records request. Include your client's name, county and case number, and the sentencing date in your request.
			3.	Exhibits and other record items:
				a.	If exhibits or other items were not sent with the court record, a phone call to the circuit court clerk and an order may be necessary.
				b.	Sometimes exhibits are returned to the police. If so, make arrangements with the DA to view and/or get copies. If unsuccessful, motions and orders may be necessary.
				c.	Trial counsel may be able to send copies to you.

III.       WHEN YOU HAVE RECEIVED THE TRANSCRIPTS AND COURT RECORD
	A.	CHECKLIST
		1.	Note your deadline to file a NOA or PCM.
		2.	Thoroughly review all circuit court documents: transcripts, court file contents, exhibits and the PSI.
		3.	Review the "Issues Checklist" at http://www.wisspd.org/html/appellate/isscheck2.asp.
		4.	Consult trial counsel about possible issues on appeal.
		5.	Consult with client, in depth, about potential issues.
		6.	Research applicable substantive and procedural law concerning the:
				•offense •defense •pretrial motions •penalties.
		7.	If necessary, investigate facts outside the record; including pretrial discovery materials, additional police reports, and additional witness interviews. Consider use of experts.
		8.	If you are appointed by the SPD, requests for experts and investigators are approved by the SPD Assigned Counsel Division in the Madison Administration office, P.O. Box 7923, Madison, WI, 53707-7923 (608-267-2870). Forms are available at http://www.wisspd.org/html/acd/acdForms.asp.
State v. O'Brien, 225 Wis. 2d 247, 327, 591 N.W.2d 846 (1999); State v. Robertson, 2003 WI App 84.		9.	Postconviction discovery: Defendant has a right to post-conviction discovery when the sought-after evidence is relevant to an issue of consequence. A party who seeks post-conviction discovery must first show that the evidence is consequential to an issue in the case and that the result of the proceeding would have been different had the evidence been discovered.
		10.	Determine if any issues have arguable merit and, if so, make a strategic decision about which issues to pursue. Discuss your conclusions with client and determine whether client wants to appeal. See III. C. and D., below.
	B.	CLIENT CONSULTATIONS--IN GENERAL
		1.	Where is your client? If incarcerated, check online at www.vinelink.com, then contact DOC at 608-266-2097 to verify before you travel. If your client is not in custody, see A. 8. above.
		2.	Standard of Practice: Meet with your client face to face. Client contact is necessary to:
			a.	Develop client trust, confidence;
			b.	Discover issues outside the record that may require investigation;
			c.	Assess level of functioning;
State v. Bangert, 131 Wis. 2d 246 (1986).			d.	Resolve guilty plea issues. You cannot assert that your client is entitled to plea withdrawal unless you determine that your client's plea was not knowingly and voluntarily made;
			e.	Discuss consequences/risks of winning the appeal that may lead client to decide not to appeal or not to request a no-merit report. See III. C. below.
809.32 (1) (d); Robinson v. State, 100 Wis. 2d 152, 165, 301 N.W.2d 429, 435 (1981).		3.	Client's request for a copy of the transcripts. Client is not entitled to a copy of the transcripts and court record at SPD expense while the direct appeal is pending unless a no merit report is filed and the client makes a request for a copy. (The SPD has no budget for a second copy). Although an indigent defendant is entitled to free transcripts, and ultimately the transcript is the client's property, when counsel represents the defendant on appeal, the transcripts are delivered to and should remain with counsel until the case is finished. The represented defendant cannot need the transcript for his/her appeal because there is no right to hybrid representation.  Counsel may, however, offer to provide a copy to the client at the client's expense. Appointed counsel must turn over counsel's copy of the court record and the transcripts upon the client's request if the client decides to proceed pro se or with counsel retained at the client's expense, and if the client consents to closing the case without an appeal.
State v. Debra A.E., 188 Wis. 2d 111, 523 N.W.2d 727 (1994).		4.	Incompetent client. A defendant unable to assist counsel or make decisions committed by law to the defendant with a degree of rational understanding is incompetent to pursue postconviction relief. The process to be followed is discussed.
State v. Braun, 185 Wis. 2d 152, 516 N.W.2d 740 (1994); State v. LaMontae D.M., 223 Wis.2d 503, 589 N.W.2d 415 (Ct. App. 1998).		5.	Absconding forfeits appeal. A client who absconds from an institution forfeits his/her right to appeal the judgment or order that placed him/her there. See VI. A. 2. and 8. below for application to no-merit procedure.
	C.	ADVICE TO CLIENT--RISKS OF OBTAINING RELIEF
		1.	Ensure that client understands risks of successful appeal: face to face conference; adequate time for client to consider; memorialize or confirm client's decision in writing.
		2.	Resentencing risks:
North Carolina v. Pearce, 395 U.S. 711 (1969); State v. Naydihor, 2002 WI App 272; State v. Church (II), 2003 WI 74.			a.	Client may receive longer sentence if reconvicted, or at a re-sentencing hearing, if justified by new objective factors.  An increase in the sentence must be supported by reasons set forth on the record and must be "based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Pearce at 726.  An increase in sentence is presumptively vindictive and unjustifiable unless supported by objective new factors. Church at ¶60.
			b.	Relief granted on one count may expose a defendant to resentencing on all counts, usually to the client's disadvantage. If the vacated count did not affect the overall dispositional scheme, resentencing on remaining counts is unnecessary and therefore not required. State v. Holloway, 202 Wis.2d 694, 700, 551 N.W.2d 841(Ct. App. 1996) (“when a sentence is commuted pursuant to § 973.13, STATS., the sentencing court may, in its discretion, resentence the defendant if the premise and goals of the prior sentence have been frustrated”); cf.,  State v. Volk, 2002 WI App 274, ¶¶46-49 (remedy for unsupported enhancement is resentencing rather than § 973.13 commutation of ES excess: “When a crucial component of such a sentence is overturned, it is proper and necessary for the sentencing court to revisit the entire question”). But see State v. Schwebke, 2001 WI App 99, ¶¶25-31, affirmed on other grds., 2002 WI 55 (remedy for sentence which exceeded the permissible maximum—multiple counts of probation running consecutive to one another—is automatic commutation to total allowable term of probation).)
State v. Hauk, 2002 WI App 226,  ¶¶42-43			c.	Reversal of one count is a new factor upon which trial court may, but is not required to, reduce a sentence on remaining counts or cases.
State v. Carter, 208 Wis. 2d 142 (1997)		2.	Loss of benefits of plea agreement. If plea is withdrawn, any plea bargain may be vitiated - dismissed charges can be reinstated, charges not issued can be filed. See, also, State v. Lange, 2003 WI App 2, ¶¶36-37 (grant of partial relief works repudiation of entire bargain).
State v. Smith, 207 Wis. 2d 259 (1997); State v. Howard, 2001 WI App 137, ¶¶36-37.		3.	Remedy for breach of plea agreement may not be plea withdrawal. If prosecutor breaches plea bargain, defendant may request specific performance before a different judge. However, remedy (resentencing or plea-withdrawal) is generally the court's rather than defendant's call.   (Practice Note: If right to relief is apparent on the record, DA may be willing to stipulate to sentence or other relief in circuit court.)
	D.	CLIENT DISAGREEMENTS--WHICH ISSUES TO APPEAL
		1.	Advising the client. After appointed post-conviction counsel has reviewed the transcripts and record, conducted any necessary investigation, concluded any necessary fact development, and researched the law applicable to the client's case, he or she must confer with the client regarding the client's right to appeal, the potential merit or lack thereof in pursuing either a post-conviction motion or an appeal, and if applicable, the availability of a no merit report.
State v. Albright, 96 Wis. 2d 122, 130 (1980)		2.	Who Decides. The client decides whether to appeal or not appeal - the decision to appeal is personal to the client. Counsel decides which issues to raise on appeal and the manner in which to raise them.
State v. Evans, 2004 WI 84, §§ 30-31; State ex rel. Ford v. Holm (Ford I), 2004 WI App 22, Rev. denied. .		3.	It is counsel's duty to decide what issues in a case have merit for an appeal. Jones v. Barnes, 463 U.S. 745 (1983). Counsel is not required to raise every non-frivolous argument on appeal and may winnow out weaker arguments for strategic advocacy purposes. Id. The rules of appellate procedure require that a defendant choose whether to proceed with the assistance of appointed counsel or to proceed pro se. State v. Redmond, 203 Wis. 2d 13, 552 N.W.2d 115 (Ct. App. 1996). A defendant has neither the right to appointed counsel of choice or to insist that a particular issue be raised. Oimen v. McCaughtry, 130 F.3d 809 (7th Cir. 1997). 'The defendant may terminate appellate counsel's representation and proceed pro se, or the defendant may allow postconviction relief to continue based on counsel's brief and then seek relief on the grounds of ineffective assistance of appellate counsel.' State v. Debra A.E., 188 Wis. 2d 111, 137-39, 523 N.W.2d 727 (1994). On ineffective assistance of appellate counsel claim, court will determine if counsel's choice of issues met objective standard of reasonableness. Gray v. Greer, 778 F.2d 350 (7th Cir. 1985).
		4.	Appointment of successor counsel. The State Public Defender will not appoint successor counsel merely because a client disagrees with the legal conclusions of appointed counsel or 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. Wis. Adm. Code § PD 2.04. Such disagreements do not create a conflict of interest and are not an adequate ground for a motion to withdraw as counsel in an SPD case. Withdrawal does not resolve these disagreements. If you have any questions about the SPD's withdrawal or reappointment policies, please contact the Attorney Manager in either the Milwaukee (414-227-4805) or Madison (608-263-8388) Appellate Division office.
		5.	Disagreements in No Merit Cases. If appointed counsel concludes that an appeal or motion for post-conviction relief "would be frivolous and without any arguable merit," counsel must explain the no merit procedure under Wis. Stats. Rule 809.32 to the client. See VI. below. The client must then choose from among the following three options: 1) to have the attorney file a no merit report; 2) to have the attorney close the file without an appeal; or 3) to have the attorney close the file and to proceed without an attorney or with another attorney retained at the client's expense. Counsel must file a no merit report if the client requests it or if the client does not consent to the closing of appointed counsel's file without further representation by appointed counsel. If the client does not want appointed counsel to file a no-merit report, the client must decide to proceed on appeal pro se or with retained counsel, or agree that the appointed attorney may close the file without further representation.
State ex rel. Ford v. Holm (Ford II), 2006 WI App ____.		7.	Disagreements in cases where meritorious issues exist. If appointed counsel concludes that a meritorious issue exists, but the client disagrees about whether a particular issue has merit or how the issue should be raised, the client must choose from among the following three options: 1) to accept appointed counsel's decisions about the issues to raise and how to present them, and to proceed with an appeal represented by appointed counsel; 2) to discharge the appointed attorney and appeal without an appointed attorney-either pro se or with the assistance of another attorney retained at the client's expense; or 3) to discharge appointed counsel and not appeal.
		8.	Warning the client about the consequences of self representation. If client chooses to proceed pro se, counsel should inform the client of and determine that s/he understands the consequences of self-representation. At a minimum, the client should understand that s/he will be solely responsible for: complying with all rules of appellate procedure, timely filing briefs or motions in proper form, securing any witnesses, presenting evidence and all legal arguments, and that failure to properly exhaust state remedies may bar federal review of legal issues.
	E.	MOTIONS TO WITHDRAW
809.30 (4);  In re Roberta Jo W., 218 Wis. 2d 225, 578 N.W.2d 185 (1998); State v. Thornton, 2002 WI App 294;  State ex rel. Ford v. Holm (Ford I), 2004 WI App 22, Rev. denied.		1.	Motion to withdraw.  If the client decides to proceed on appeal with retained counsel or pro se and you have made an appearance in the case, you must file a motion to withdraw, and serve a copy on the client and the SPD Appellate Intake Unit, P.O. Box 7862, Madison, WI 53707-7862. The motion must be filed in the circuit court if no NOA has been filed, or in the court of appeals if the NOA has been filed. If the client wants to appeal pro se, you should also file a motion in the court of appeals to extend the Rule 809.30 time limits so the client has sufficient time to prepare the appeal.
State ex rel. Flores v. State, 183 Wis. 2d 587, 624, 516 N.W.2d 362 (1994).		2.	A motion to withdraw is unnecessary if your client agrees not to appeal. A motion to withdraw is not necessary if the client agrees to close the file without further court action. Document in your file the client's decision not to pursue appeal, the content of client-attorney discussions, and the decision process of client. Send client a case closing letter that clearly memorializes the client's decision and its consequences.
			Caution: Distinguish this situation, in which the client accepts counsel's decision that the file should be closed (due to lack of merit, risk of increased exposure or some other reason) without further representation, from one where s/he does not. On this point, see State v. Thornton, 2002 WI App 294, which should be studied closely. At a minimum, where the client doesn't accept the decision to close the file without further representation, s/he should be sufficiently warned of the dangers of self-representation. (See III. D. 8 above.)
	F.	EXTENSION OF RULE 809.30 TIME LIMITS
809.82 (2) (b)		1.	If you need additional time to file the NOA or a PCM, file a motion in the court of appeals to extend the 60-day Rule 809.30 (2) (h) time limit.
		2.	Practice note: With sufficient grounds (investigation, workload, illness, office staffing problems, etc.) the court of appeals will grant a reasonable extension request. Second extensions are granted if diligence and need are shown. Requests for a third extension are disfavored.
		3.	Caution: Extensions are available only for cases falling within Rule 809.30 - see II. A. above - and only for the time limits set forth in Rule 809.30. The time limit for filing a Petition for Review in the supreme court can never be extended.

IV.  DECIDING HOW TO APPEAL - DO YOU NEED TO FILE A MOTION FIRST?
809.30 (2) (h), 974.02 (2)	A.	WHEN TO FILE A NOTICE OF APPEAL (NOA):
		1.	If the only issue to be appealed is sufficiency of the evidence,
		2.	Or, if your case is a civil appeal not governed by Rules 809.30-.32 (see II. A. above and "Perfecting Appeals in WI Public Defender Cases" at http://www.wisspd.org/html/appellate/AppInfoSPDTAtt.pdf).
		3.	Or if all issues to be appealed have been properly raised (by the trial attorney, or by the appellate attorney in a postconviction or postdisposition motion) and have been decided by the circuit court. Practice Note: Has the issue been adequately preserved? See the "Waiver of Issues" section under "Processing Appeals and Postconviction Motions" in the SPD Case Summaries, at http://www.wisspd.org/html/980case/casesum/AppealsPP.htm.
	B.	WHEN TO FILE A MOTION FOR POSTCONVICTION OR POSTDISPOSITION RELIEF (PCM).
		1.	You must file a PCM before a NOA if the trial court has not had an opportunity to rule on the precise issue you intend to raise on appeal.
		2.	A PCM that raises or renews a substantive legal claim:
			a.	Provides an opportunity to present issues to the trial court that were not previously raised;
			b.	Allows the trial court further opportunity to consider issues that were previously raised;
			c.	Provides opportunity to make a more complete record for issues that you intend to raise on appeal.
		3.	Issues that must be raised in a motion include:
805.15(1)			a.	A request for a new trial in the interest of justice;
State v. Machner, 92 Wis. 2d 797 (Ct. App. 1979).			b.	An ineffective assistance of counsel claim--trial counsel must testify as to the reasons for the challenged action or omission;
State v. Kivioja, 225 Wis. 2d 271, 592 N.W.2d 220 (1999); State v. Armstrong, 2005 WI 119.			c.	A request for a new trial based upon newly discovered evidence;
State v. Williams, 2002 WI 1, ¶¶47-48; State v. Matson, 2003 WI App 253.			d.	A request for resentencing or plea withdrawal based upon a violation of the plea agreement by the state;
			e.	A request to withdraw a guilty or no-contest plea (see IV. C.  below).
			f.	A request for relief from the sentence (see IV. D. below)
	C.	GUILTY PLEA CASES
State v. Bangert, 131 Wis. 2d 246 (1986); State v. Hampton, 2004 WI App 107; State v. Brown, 2006 WI 100 ¶¶ 34-42.		1.	Must file PCM seeking plea withdrawal unless trial counsel moved to withdraw the plea before the sentencing. Elements of claims, pleading requirements,  procedures, burdens and standards of proof are discussed in Bangert, Hampton and Brown.
971.31 (10)		2.	In criminal cases, an order denying a motion to suppress evidence or exclude a statement of the defendant may be appealed despite the entry of a guilty plea. Caution: There is no corresponding rule for juvenile cases.
		3.	The guilty plea waiver rule. “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. This is known as the guilty-plea-waiver rule. Exceptions include: A double jeopardy claim that can be resolved on the basis of the record as it existed at the time of the plea, State v. Kelty, ¶38; "statutory double jeopardy," § 939.71 and State v. Lasky, 2002 WI App 126; unauthorized repeater enhancement, State v. Hanson, 2001 WI 70, 244 Wis. 2d 405, 628 N.W.2d 759; and lack of subject matter jurisdiction, State v. Bush, 2005 WI 103.
State v.  Grindemann, 2002 WI App 106	D.	SENTENCING ISSUES -- All claims for sentence relief must be raised in the trial court by PCM, with notice to the prosecution:
973.13		1.	Illegal Sentence
		2.	Erroneous exercise of discretion
		3.	New Factor
State v. Washington, 176 Wis. 2d 205 (Ct. App. 1993)			a.	Requires a new factor highly relevant to the imposition of sentence;
State v. Noll, 2002 WI App 273.			b.	New-factor motion invokes court's inherent authority, distinct from motion brought under authority of § 973.19, which has 90-day deadline.
State v. Casteel, 2001 WI App 188.			c.	Failure to argue a new factor in existence at the time a sentence-modification motion is filed on other grounds waives the right to assert it at a later date.
973.155		4.	Failure to grant sentence credit.
State v. Groth, 2002 WI App 299		5.	Sentence based on inaccurate information.
State v. Williams, 2002 WI 1, ¶¶47-48; State v. Matson, 2003 WI App 253.		6.	A sentencing recommendation made in violation of the plea agreement.
State v. Walker, 2006 WI 82		7.	PCM is required when you are seeking relief from re-sentencing too.
	E.	SERIAL LITIGATION BAR: YOUR FAILURE TO RAISE AN ISSUE ON DIRECT APPEAL WILL PREVENT YOUR CLIENT FROM EVER RAISING IT IN A SUBSEQUENT § 974.06 PCM, ABSENT 'SUFFICIENT REASON.'
974.06 (4); State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994); State v. Lo, 2003 WI 107		1.	Lo, ¶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.
		2.	“Our ruling would only be applicable in the situation where a criminal defendant actually filed a § 974.02 motion or pursued a direct appeal.” ¶44 n. 11.
State v. Tillman, 2005 WI App 71		3.	The procedural bar, which was codified in § 974.06 (4) (2003-04), may be applied when a prior appeal was processed under the no merit procedure.
State v. Fortier, 2006 WI App 11		4.	No serial litigation bar where arguably meritorious issue overlooked by counsel and the court in no-merit report.
State v. Mikulance, 2006 WI App 69		5.	A “narrow” exception to the serial litigation bar is established by State v. Flowers, 221 Wis. 2d 20, 27, 586 N.W.2d 175 (Ct. App. 1998), which “applies only where the defendant files a motion alleging that the State has failed to prove the prior conviction necessary to sustain the habitual criminal status (by proof or by admission) or when the penalty imposed is longer than permitted by law for a repeater,” ¶¶1, 16.

V.  PERFECTING YOUR RULE 809.30 APPEAL
	A.	HOW TO FILE A MOTION FOR POSTCONVICTION OR POSTDISPOSITION RELIEF
809.30 (2) (h)		1.	Motion is due within 60 days of service of transcript or court record, whichever is later.
		2.	File in circuit court. Filing date is the date the motion is actually received and date stamped by the clerk of court.
		3.	Notice of motion not required.
801.14		4.	Serve opposing counsel/prosecutor, guardians ad litem, if applicable, and if motion challenges constitutionality of statute, must also serve AG.
	B.	A HEARING MAY BE ESSENTIAL TO PRESERVE YOUR ISSUE FOR APPEAL.
971.04 (1) (h); State v. Polak, 2002 WI App 120.		1.	Obtain order to produce client. Attendance necessary if: 'the hearing concerns substantial issues of fact as to events in which the defendant participated.' State v. Delgado, 215 Wis. 2d 16, 23, 572 N.W.2d 479 (Ct. App. 1997), rev'd on other grounds 223 Wis.2d 270. Otherwise, decision whether to produce defendant is within the court's discretion.
State v. Machner, 92 Wis. 2d 797 (Ct. App 1979).		2.	If your issue requires fact-finding (examples include ineffective assistance of counsel and plea withdrawal claims), you must have an evidentiary hearing.
809.30 (2) (i)		3.	If circuit court refuses to schedule a hearing, seek an extension of time to hear the motion from the court of appeals, stating as grounds that the circuit court has (refused) (delayed) setting a hearing. Court of appeals may order circuit court to schedule a hearing expeditiously.
State v. Roberson, 2005 WI App 195; State v. Love, 2005 WI 116; State v. Brown, 2006 WI 100.		4.	Caution: Circuit court may deny motion on its face without a hearing if PCM presents conclusory allegations that fail to raise a question of fact, or if the record conclusively demonstrates that the defendant is not entitled to relief. Therefore:
			a.	Make your pleadings and affidavits precise.
			b.	List all factual allegations you intend to prove.
State v. Curtis, 218 Wis. 2d 550, 582 N.W.2d 409 (Ct. App. 1998)		4.	Failure to request a hearing precludes appellate review of the issues raised in your motion.
809.30 (2) (i)	C.	CIRCUIT COURT MUST DECIDE PCM BY WRITTEN ORDER
		1.	If the circuit court does not decide your motion within 60 days of filing, the motion is deemed denied and the circuit court clerk is required to immediately enter an order denying the motion.
		2.	If the clerk does not do so, you must prepare the order and ask the clerk to enter it.
		3.	If you are granted a hearing, prepare orders granting and denying the PCM and bring them with you to the hearing.
809.30 (2) (j)		4.	You must file your notice of appeal within 20 days after the entry of the written order denying the motion.
State v. Malone, 136 Wis. 2d 250 (1987)		5.	NOA must indicate that you are appealing the order denying the PCM and the judgment of conviction, because the COA has no jurisdiction to review a decision that was not appealed.
	D.	EXTENSION OF TIME FOR CIRCUIT COURT TO DECIDE PCM
809.82		1.	If circuit court needs additional time to schedule a hearing or to decide PCM, offer to file an extension motion in COA on court's behalf.
809.30 (2) (i)		2.	Extension of time to decide PCM may be requested by any party or by the circuit court.
	E.	HOW TO FILE & SERVE A NOTICE OF APPEAL (NOA)
809.30(2) (h) & (j); 809.10 (1)		1.	Due within 60 days after service of last transcript or circuit court case record, whichever is later, if no PCM filed; OR if appealing after denial of PCM, then due within 20 days after entry of the order denying relief.
809.80 (3), 801.16 (2), State v. Sorenson, 2000 WI 43.		2.	The NOA is not filed until it is actually received and date-stamped by the clerk of circuit court. Filing may be accomplished by mail, courier or in person. Filing by fax is permitted as set forth in s. 801.16, subject to local rules.
		3.	Original NOA is filed in the circuit court. A copy is sent to the clerk of the COA.
801.14		4.	Serve a copy on the representative of the state: The Attorney General (AG) represents the state in felony and ch. 980 appeals. A District Attorney or Corporation Counsel represents the state in other Rule 809.30 appeals.
809.80 (2)		5.	Serve a copy on all parties in the circuit court action, including:
809.30 (1) (e)			a.	prosecutor;
			b.	guardian ad litem; and
			c.	also serve AG if appeal challenges constitutionality of statute.
		6.	Content of Notice of Appeal:
809.30 (2) (h)			a.	Must conform to Rule 809.10.
809.10 (1) (b)			b.	Include: the case name and number, the judgment/order being appealed from and the date it was entered; the court and judge who issued the judgment/order; whether single-judge appeal [§ 752.31(2)] and whether entitled to statutory preference (e.g. juvenile, TPR)..
			c.	If counsel is appointed by State Public Defender, attach a copy of the order appointing counsel so filing fees can be waived.
			d.	Must specify the event that triggers the deadline for filing the NOA: the date of service of last transcript or copy of court record when no PCM was filed, or the date of the order deciding the PCM, or the date of any other NOA deadline established by the COA.
	F.	HOW AND WHEN TO FILE AND SERVE A MOTION FOR A THREE-JUDGE PANEL
752.31		1.	File a motion for a three-judge panel if you want the COA decision in a misdemeanor, traffic, ch. 48, 51, 55 or 938 case to be published. Otherwise, these cases are one judge appeals and the decisions will not be published.
			a.	Factors weighing in favor of publication - set precedent, constitutional issue, issue of statutory construction, issue likely to recur, impact on other litigants.
			b.	But three-judge appeals are less likely to be expedited and the state may be represented by the AG.
809.41 (1)		2.	Motion for three-judge panel must be filed in the COA and must accompany the copy of the NOA sent to the clerk of the COA.
		3.	Motion must:
			a.	contain a brief factual outline of the case
			b.	explain how the issues arose
			c.	state clearly defined issues and reasons why they have statewide importance (Conclusory statements that case has 'statewide importance' and is 'worthy of publication' are insufficient.)
801.14		4.	A copy of your motion must be served on all parties to the action and on the AG if the state is a party. AG may file a response within 11 days of service.
		5.	Other parties to the appeal may file a motion for a three-judge panel within 14 days after service of the NOA.
752.31 (3), 809.41 (2)		6.	Decision is made by chief judge, who may act ex parte, and who may change his or her decision at any time prior to a decision on the merits.
809.41 (2) and (3), 752.31 (3)		7.	If the need for a published decision first becomes apparent while the appeal is pending, counsel can write a letter to chief judge, stating good reasons, asking that the case be heard by 3-judge panel. The chief judge can order a three-judge panel any time prior to a decision on the merits.
	G.	HOW AND WHEN TO FILE AND SERVE A DOCKETING STATEMENT
809.10 (1) (d), 809.30 (2) (j)		1.	Must be filed with NOA in all Ch. 48, 51, 55, 938 cases on a form prescribed by the court of appeals. Exceptions: not required in a no-merit (Rule 809.32), a TPR (Rule 809.107), or a pro se appeal.
801.14		2.	File two copies in the court of appeals and serve a copy on opposing counsel and any other party.
		3.	Attach:
			a.	judgment or order being appealed;
			b.	findings of fact/conclusions of law;
			c.	memorandum decision or opinion on which judgment or order is based.
		4.	Purpose is to determine whether case should be put on expedited appeal calendar.
	H.	SHOULD YOUR APPEAL BE EXPEDITED?
		1.	Participation in the expedited appeals (fast track) program is beneficial in ch. 48, 938, 51 and 55 cases where the client is in a placement s/he doesn't want.
		2.	If docketing statement indicates potential for fast-track, COA staff attorney sets up a phone conference--attorneys must participate, with authority to make decisions about expedited process.
		3.	Most important factor is number of issues involved in appeal--usually COA wants only one or two. COA Districts 1 and 2 have a three-issue limit. Another important factor is complexity of issues --'easy' issues are preferred.
		4.	Participation is voluntary.
		5.	If the appeal is expedited, issues identified in docketing statement may be altered or added to in brief.
	I.	HOW TO FILE AND SERVE THE STATEMENT ON TRANSCRIPT.
		1.	Within 14 days after filing the NOA, the appellant must:
809.11 (4) (a)			a.	Send letters to all court reporters requesting service of copies of the transcripts on all other parties to the appeal and make arrangements for payment for same. SPD payment forms are available at http://www.wisspd.org/html/acd/acdForms.asp.
809.11(7) (b)			b.	Attach statement for court reporter to sign indicating that you have requested transcripts for other parties and made arrangements to pay for them.
809.11 (4) (b)			c.	File a Statement on Transcript with the clerks of the COA and the circuit court.
			d.	Attach copies of the transcript request letters to the copies of the Statement on Transcript.
801.14			e.	Serve a copy of the Statement on Transcript on all other parties.
809.32(2)		2.	It is not necessary to obtain transcripts for other parties in no-merit appeals, but you should file a Statement on Transcript explaining why you are not doing so.
VI.  THE NO-MERIT PROCEDURE:
	A.	THE NO-MERIT REPORT, RESPONSE AND SUPPLEMENTAL NO-MERIT REPORT, WIS. STATS. RULE 809.32(1)-(3).
809.32		1.	If you conclude that no issues of arguable merit exist for a direct appeal, you must advise your client of his/her right to a no-merit report (NMR).
State ex rel. Ford v. Holm (Ford I), 2004 WI App 22, Rev. denied.		2.	A NMR must be filed when 1) there are no issues of arguable merit and 2) the client asks that the report be filed or the client declines to have the appointed attorney close the case without further representation.
State ex rel. Ford v. Holm (Ford II), 2006 WI App		3.	A client who has strategically foregone a potentially meritorious challenge to his or her conviction is not entitled to the option of a “partial” no-merit report discussing remaining aspects of the case.
809.32 (1) (b) 1		4.	Prior to filing a NMR, counsel must discuss all potential issues with the client and inform the client of his/her options (i.e. to have counsel file the NMR, close the case without an appeal, or close the file so client can appeal pro se or with another attorney retained at the client's expense).
809.32 (1) (b) 2 & (d).		5.	Counsel must inform the client that if a NMR is to be filed, counsel will serve a copy of the transcripts and court record on the client within 5 days after the client's request.
		6.	Counsel must inform the client that he/she may file a response to the NMR within 30 days after service of the NMR, and that counsel may then file a supplemental NMR that may contain facts, possibly including confidential information, outside the record to rebut allegations in the client’s response.
809.32 (2)		7.	To initiate NMR procedure, counsel must file a NOA directed to the judgment of conviction (and order denying postconviction relief if applicable). A no merit NOA, statement on transcript (SOT) and NMR must be filed within the later of 180 days from the service of the last transcript and circuit court record or within 60 days after entry of the order determining a postconviction motion. Copies of the no merit NOA and SOT must be served on the other parties, but copies of the NMR, transcript and court record do not need to be served on the other parties.
809.32 (1) (c)		8.	Counsel must append to the NMR a signed certification that counsel has complied with the client counseling and notification provisions in Rule 809.32 (1) (b). You may file a motion to alter certification requirements if the circumstances present in your case do not fit the statutory language. See VII. A. below.
809.32 (1) (a)		9.	Counsel must file 3 copes of the NMR in the COA and serve a copy on the client. The NMR must identify anything in the record that might arguably support an appeal and discuss the reasons why each identified issue lacks merit.
809.32 (1) (e)		10.	The client has 30 days from service to file a response to the NMR. The clerk must send a copy of any response to counsel within 5 days after filing.
809.32 (1) (f)		11.	Counsel may then file and serve on the client a supplemental NMR within 30 days of receipt of the client's response, and may rebut by affidavit, with facts outside the record, claims made in the client’s response.
	B.	DETERMINATION OF THE NO MERIT REPORT BY THE COURT OF APPEALS
809.32 (1) (g)		1.	COA may remand to circuit court for an evidentiary hearing and fact-finding before deciding NMR.
809.32 (3)		2 .	If COA accepts the NMR and releases counsel, counsel must still inform former client about right to file a pro se petition for review under Rule 809.62. See IX. A. below.
VII.  MOTION PRACTICE IN THE COURT OF APPEALS
809.14	A.	PROCEDURE FOR ALL COA MOTIONS
801.14, 809.80, 809.81 (2),		1.	File five copies with the clerk of the COA. Serve the other parties to the appeal and the clerk of the circuit court with a copy.
809.14		2.	Court will usually hold motion for 11 days awaiting a response before acting on it.
			a.	EXCEPT a motion for a procedural order, such as a motion for an extension of a time limit.
809.14 (2)			b.	If need relief quickly, request ex parte order.
809.14 (3) (a)		3.	Motion which affects disposition of appeal, content of record or brief, or to consolidate appeals, automatically enlarges time for performing an act required by the rules "from the date the motion was filed until the date the motion is disposed of by order."
809.10 (3)	B.	MOTION TO CONSOLIDATE APPEALS
		1.	When client has two or more cases disposed of at the same time which s/he wishes to appeal, you must file a separate notice of appeal and statement on transcript in each case, and then move COA to consolidate cases.
		2.	This applies even when the transcripts are identical.
809.15 (3)	C.	MOTION TO SUPPLEMENT THE RECORD
809.14		1.	If there are documents that the clerk of the circuit court has not included in the record on appeal that you need to refer to in your brief, and the record has already been sent to the COA, file a motion in the COA to supplement the record.
		2.	Explain why the document is necessary to the issue on appeal.
		3.	Attach a copy of the document to your motion.
		4.	Serve a copy of motion and attachment on all other parties to the appeal and the clerk of the circuit court.
809.14 (3) (b), 809.15 (4)		5.	Filing the motion automatically enlarges the time for filing your brief, but only until the date that the motion is decided. Ask the COA, in your motion to supplement, to extend your briefing deadline until the supplemental return of the record on appeal is forwarded to the COA by the clerk of the circuit court. You will then be able to refer to the added documents by document number and page number in your brief.
		6.	For transcripts, see Rule 809.11 (4), (5) and (7) (a).
809.14	D.	MOTION TO ENLARGE PAGE OR WORD LIMIT.
809.82 (2)	E.	MOTION FOR EXTENSION OF TIME LIMIT.
State v. Quackenbush, 2005 WI App 2		1.	The court of appeals may, upon good cause shown, enlarge the time periods set in Rules 809.30 and .32 and may permit actions to be done after the expiration of the prescribed time.
		2.	But see State ex rel. Santana v. Endicott, 2006 WI App 13: A claim that lapsed direct appeal rights should be restored on the basis of ineffective assistance of appellate counsel must be sought via habeas filed in the court of appeals, pursuant to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).
		3.	A copy of any motion to extend time limits must be served upon the clerk of the circuit court.
		4.	The time limits for filing a motion for reconsideration in the COA under Rule 809.24, for filing a petition for review in the supreme court under Rule 809.62, and for filing a notice of appeal in an appeal other than an appeal under Rules 809.30 or 809.32 can not be enlarged.
809.20	F.	MOTION TO ADVANCE SUBMISSION OF CASE.
		1.	May be filed before or after briefs are submitted.
		2.	Must recite the nature of the public or private interest involved, the issues in the case and how delay in submission of the case will be prejudicial to the accomplishment of justice.
809.60	G.	PETITION TO BYPASS COA
		1.	Must be filed with the clerk of the supreme court within 14 days after filing of respondent's brief.
		2.	Must include a statement of reasons for bypassing the COA.
		3.	Opposing party may file response within 14 days after service of the petition.
		4.	Considerations: Is this a case the supreme court is likely to review anyway? Is time of the essence?
	H.	MOTION FOR SUMMARY DISPOSITION
809.21 (1)		1.	Court may dispose of an appeal summarily on its own motion or on the motion of a party. Covers reversal and affirmance.
809.21 (2)		2.	May be filed at any time.
		3.	If filed before briefs, include sufficient facts and background so court has basis for ruling.
809.18	I.	NOTICE OF VOLUNTARY DISMISSAL
State v. Jones, 2002 WI 53		1.	The COA may not refuse to dismiss an appeal if a notice of voluntary dismissal is filed by the appellant at any time before the COA files a decision on the merits.
		2.	May be filed in circuit court if NOA not yet filed.
		3.	Districts vary on whether client's signature must appear on the Notice of Voluntary Dismissal.
809.24	J.	MOTION FOR RECONSIDERATION BY COA
		1.	Party may file a motion for reconsideration in COA within 20 days after the date of the COA decision or order.
809.82 (2) (e)		2.	The time limit for filing a motion for reconsideration in the COA can not be enlarged.
		3.	The motion must state the points of law or fact alleged to be erroneous, with supporting argument, and must not exceed 5 pages or 1,100 words.
		4.	Caution: Filing a motion for reconsideration does not extend the time for filing a petition for review in the supreme court.
		5.	Applies only to final decisions, not procedural orders. Procedural orders may be reconsidered under Rule 809.14.
		6.	No response to a motion for reconsideration may be filed unless it is ordered by the COA.
809.23 (4)	K.	REQUEST FOR PUBLICATION
		1.	Available in 3-judge cases at any time.
		2.	Available for per curiam opinions that do not address issues of appellate procedure or jurisdiction, if request is filed within 20 days of date of opinion.
		3.	Must serve a copy on all other parties to the appeal, who may file a response to the request within 5 days after the request is filed.
		4.	Not available in 1-judge appeal cases. See V. F. above.
VIII.  BRIEFING THE ISSUES
	A.	THE RECORD ON APPEAL
809.30 (2) (k) 809.15		1.	The clerk of the circuit court has 40 days after the filing of the NOA to transmit the court record to the COA. Review the circuit court clerk's index of the documents comprising the record on appeal. If you do not have all the documents listed, get them. If the clerk's transmittal notice does not include all the necessary record items, contact the clerk and find out how to get the documents included before the record is sent to the COA. (See VII. C. above for motions to supplement the record after it has gone up to the COA.) Remember that in your brief and in oral argument you can only refer to matters that are part of the record on appeal. Move copies of missing exhibits or other items into the record on appeal if they are not in the court file or in the clerk's possession and if they are relevant to the issues you will raise in the appeal.
		2.	The clerk of the circuit court will prepare an index of the record on appeal and assign each item a letter or number and indicate the number of pages in any document. The record references in your brief should indicate the item number and the page number, if applicable. (See C. 4. b. below.)
809.15 (5)		3.	Parties may file an agreed statement of the case in lieu of a record on appeal.
State v. McAttee, 2001 WI App 262, ¶5 n.1		4.	When an appellate record is incomplete in connection with an issue raised by the appellant, appellate court must assume that the missing material supports the trial court’s ruling.
	B.	BRIEFING TIME LIMITS
809.19 (1)			•Appellant's brief-in-chief is due 40 days after the record on appeal is filed in the COA
809.19 (3) 801.15 (5) (a)			•Respondent's brief is due within 30 days after the later of any of the following: service of the appellant's brief (add 3 days if served by mail), the court's acceptance of the appellants brief for filing, or the date on which the record is filed in COA.
809.19 (4) 801.15 (5) (a)			•Appellant's reply brief, or a statement that no reply brief will be filed, is due within 15 days after the later of any of the following: service •of the respondent's brief (add 3 days if served by mail), or the court's acceptance of the respondent's brief for filing. Note: Supreme court sometimes sets other specific briefing schedules.
809.19 (1)	C.	CONTENT OF BRIEFS
809.19 (1) (a)		1.	Table of Contents:
			a.	Must have page references to the various parts of the brief, including headings for each of the argument sections.
			b.	Must also contain a table of cases arranged alphabetically and tables of statutes and other authorities with reference to the page of the brief on which each is cited.
809.19 (1) (b)		2.	Statement of the Issues:
			a.	The Statement of the Issue should fully inform the reader what issues are presented for review and how the court decided them.
			b.	Incorporate the standard of review into the Statement of the Issue if you can.
			c.	You don't need to state an issue in one sentence--don't sacrifice clarity by trying to pack everything into one sentence.
			d.	A question and answer format stating each issue and the trial court's decision is traditionally used. The rule only requires that the trial court's decision on each question be noted.
			e.	A statement of the issues is optional for respondent, but don't let the appellant define the issues. Disagreement on issues should be noted.
State v. Alles, 106 Wis. 2d 368, 392-94 (1982)			f.	Respondent may raise any trial court error that, if corrected, would support the appealed order or judgment. Consequently, respondent may present issues for review in addition to those raised in the appellant's brief.
			g.	After reading your issue statement, the COA should be able to understand what the issue is and how you want it decided.
809.19 (1) (c)		3.	Statement on oral argument and publication:
			a.	Oral argument is rarely granted in the court of appeals so don't lose credibility by asking for it in every case. Make sure your brief says everything the court needs to know to resolve the issue in your favor.
			b.	If you do request oral argument, explain why it is necessary. See Rule 809.22 for criteria.
			c.	Same for publication. See Rule 809.23 for publication criteria.
809.19 (1) (d)		4.	Statement of the Case
			a.	Consists of, separately or together: •Statement of the case--a description of the procedural posture of the case (nature of case, procedural history, trial court disposition); and, •Statement of facts--a description of what happened that gave rise to the lower court case, including all facts relevant to issues presented for review, and only those facts.
State v. Kourtidias, 206 Wis. 2d 574 (Ct. App. 1996) (failure to cite to record waives issue)			b.	All statements must have appropriate references to the record on appeal. If a particular transcript has been designated by the clerk of circuit court as appeal document 33, then page 24 of that transcript is cited as (33:24). If you have also included that page in your appendix at p. 107, then cite as (33:24; App. 107).
Arents v. ANR Pipeline Co., 2005 WI App 61, ¶4 n.2			c.	It is important to be scrupulously fair in your recitation of the relevant facts. Do not paraphrase inaccurately. Do not overstate or exaggerate. Do not ignore facts that hurt your client's position. If you lose credibility here, you will not be persuasive in argument later.
			d.	On the other hand, do attempt to persuade with your selection of facts significant to your issues and with the juxtaposition and order of significant events. (However, do not argue the facts.)
			e.	Avoid mindless chronological recitation of the facts as they were presented at trial.
			f.	Your objective is to instill in the appellate judge the belief that something has gone wrong before s/he even begins to read the argument section of your brief.
			g.	Try to capture the interest of the judges who have probably just read 10 or 20 boring briefs. Use some of the techniques of journalism or fiction: an interesting lead, a 'hook,' flashbacks, foreshadowing, point-of-view, etc.
			h.	As respondent, don't necessarily accept facts as set forth by the appellant. Point out any inadequacies or omission in the appellant's version, but don't 'nit-pick.'
809.19 (1) (e)		5.	Argument
			a.	Heading. Each argument presented must have one, and may have subheadings. These headings will form your Table of Contents entries and should be drafted carefully. The argument headings should correspond to and address the issues in the same order they were presented in your Statement of Issues. The headings should: •signal overall structure of the argument; •help the reader locate his/her place in the argument; •persuade - avoid stilted legal language.
			b.	Executive summary. Tell the court what you will present in this portion of the argument and how it relates to arguments you already made or will make in other sections.
			c.	State the standard of review, supported by citations to legal authority. •Appellate courts do not retry cases. They review what lower courts did. •On some issues, appellate courts are very deferential to the trial courts. On others, the appellate court exercises independent judgment without giving any weight to the trial court's decision. •The relevant standard of review determines the level of deference for a particular issue. •Tailor your argument to the applicable standard of review. •See Hon. Richard S. Brown, "Standards of Appellate Review," in Appendix C of Heffernan, Appellate Practice and Procedure in Wisconsin (2003), and cases summarized in the "Standard of Review" section under "Processing Appeals and Postconviction Motions" in the SPD Case Summaries, at http://www.wisspd.org/html/980case/casesum/AppealsPP.htm.
809.19 (1) (e)			d.	Citations. •Must follow the Public Domain Citation Format required as of Jan. 1, 2000, pursuant to S. Ct. Order No. 95-01. Citation to cases decided before 1-1-00 must follow The Bluebook - A Uniform System of Citation and SCR 80.02. •Initial citation of a Wisconsin case must include: (1) the public domain citation, if it exists; (2) the volume and page number of Wisconsin Reports in which the opinion is published; and, (3) the volume and page number of Northwest Reports in which the opinion is published. •Subsequent citations to Wisconsin cases must refer to either the Public Domain citation, Wisconsin Reports or the Northwestern Reporter, and must be internally consistent. •The accepted citation to a Wisconsin statute in the Wisconsin appellate courts is, e.g., Wis. Stats. § 971.20. If the statute is cited at the beginning of a sentence, the proper form is, e.g., Wisconsin Statute § 971.20. •When citing statutes, it is presumed to be to the current version. If you are citing to an earlier version, give the year in parentheses. Example: Wis. Stat. § 971.20 (1993-1994). •The citation form for the rules of appellate procedure in ch. 809, is, e.g., Wis. Stat. Rule 809.30. •An unpublished decision has no precedential value, and may not be cited. Rule 809.23(3). You can cite non-precedential trial court decisions, Brandt v. LIRC, 160 Wis. 2d 353, 466 N.W.2d 673 (Ct. App. 1991), unpublished cases from other states, Predick v. O'Connor, 2003 WI App 46, ¶12 n. 7, and unpublished federal decisions, State ex rel. Gendrich v. Litscher, 2001 WI App 163, ¶7 n. 6. Failure to cite relevant authority constitutes waiver of the issue. State v. Noble, 2001 WI App 145, ¶11, reversed, other grounds, State v. Noble, 2002 WI 64.
			e.	State the rule of law applicable to your issue, supported by citations to legal authority. Be concise and accurate.
			f.	Apply these rules of law to the facts presented in your case. This is the essence of argument. Make it simple and as short as possible.
			g.	Do not ignore adverse authority-distinguish it or argue in good faith that it should be reversed.
State v. Santana-Lopez, 2000 WI App 122, ¶6 n.4			h.	Avoid footnotes. They distract from readability and usually indicate poor organization. Argument contained only in a footnote waives the issue.
			i.	Make limited use of quotations. Quotes should be kept short and only the portion directly relevant to a particular argument should be reproduced in the brief.
			j.	Avoid lengthy string cites. Cite only the minimum cases necessary to show support for a legal position. Emphasize authority within the court's jurisdiction.
			k.	Avoid sarcasm and personal attacks. Never directly attack the integrity or intelligence of the trial judge, or opposing counsel. Mogged v. Mogged, 2000 WI App 39:: Brief adopting "vituperative tone" and making misleading, unsupported arguments violates Rules of Professional Conduct and is stricken. ¶¶21-24.
			l.	At the end of each argument section, summarize your conclusion and explain the type of relief sought.
State v. Scheidell, 230 Wis.2d 189, 601 N.W.2d 284 (1999); State v. Holt, 128 Wis. 2d 110, 125 N.W. 2d 679 (Ct. app. 1999)			m.	As respondent, explain why the trial court ruling should be upheld. A respondent may, without taking a cross-appeal, urge in support of a lower court decree any matter appearing in the record, although his/her argument may involve an attack upon the reasoning of the lower court or an insistence upon a matter overlooked or ignored by it.
State v. Chu, 2002 WI App 98, ¶41			n.	The appellant's reply brief should respond to arguments in the respondent's brief. Unrefuted arguments are deemed admitted. Do not re-argue points already made in your brief-in-chief.
809.19 (1) (f)		6.	Conclusion
			a.	Must state the precise relief requested.
			b.	May contain a short summary of the reasons for the relief sought.
809.19 (2)		7.	Appendix
			a.	Your brief will not be accepted without a short appendix that contains a table of contents, relevant trial court record entries, the finding or opinion of the trial court, and portions of the record essential to an understanding of the issues raised, including oral and written rulings or decisions showing the trial court's reasoning regarding those issues.
			b.	Always include any written decision of the trial court, any transcript portion containing the trial court's findings, rationale and ruling, and any portions of transcript and any documents used by the trial court in arriving at its decision.
			c.	Appendix should always contain the judgment or order being appealed.
			d.	Authority from foreign jurisdictions and published articles cited in your brief, if essential and not voluminous, should be provided in the appendix.
			e.	You must append to the appendix a signed certification that your appendix meets the content requirements of Rule 809.19 (2) (a). Rule 809.19 (2) (b) contains the required language.
			f.	Practice Note: Assume that the judge will read your brief outside of his/her chambers, then put everything the judge needs to understand your arguments (and no more) into the appendix.
		8.	References worth a look.
			a.	Hon. William Eich, "Writing the Persuasive Brief," 75 Wis Lawyer 20 (Feb. 2003).
			b.	Howard J. Bashman, "A Concise Guide to Writing Better Appellate Briefs."
809.19 (1) (g)	D.	CONFIDENTIALITY
		1.	When the record is required to be confidential, individuals in the case must be referred to by first name and last initial.
		2.	Applies to:
			a. b. c. d.	juvenile cases-§ 938.78. mental health cases-§ 51.30 (3). protective placement cases-§ 55.22 (3) sexual exploitation by therapist cases- § 940.22 (4).
		3.	This rule does not apply to victims of sexual assaults.
		4.	It is important to remember this rule when compiling the appendix. The necessary portions of last names and other identifying information must be masked or crossed out. The Clerk's office checks this and will not accept briefs that reproduce such information in the appendix.
809.19 (8)-(9)	E.	FORM AND LENGTH REQUIREMENTS OF BRIEFS
		1.	Caution: The clerk of the court of appeals will refuse to accept briefs for filing that do not comply with Rule 809.19.
802.05 (1), 809.19 (1) (h), 809.84		2.	Attorney's signature and state bar number must follow the conclusion section of the brief.
809.19 (9)		3.	Cover of brief. For appellant, the color is blue for the brief-in-chief and gray for the reply brief. For respondent, the color is red. The back cover is blank. The front cover must contain: •Name of court (e.g., Court of Appeals, District II); •Caption and case number in the COA The caption must include the full name of each party in the circuit court and must designate each party so as to identify each party's status in the circuit court and in the appellate court, if any. (The COA clerk will notify you, after the NOA is filed, of the appropriate caption and case number.); •Name of judge and circuit court being appealed; •Title of brief (e.g., Appellant's Brief and Appendix, Respondent's Brief and Appendix, Appellant's Reply Brief); •Name, address, State Bar number and party affiliation (e.g., Attorney for Defendant-Appellant) of the attorney filing the brief.
		4.	In supreme court, add "Petitioner" to party designation of person filing petition for review, other party's designations remain the same as in the COA.
809.19 (8) (b) 4.		5.	Binding. •Must be securely bound only on left side with heavy staples, by velobinding or the 'perfect' hot glue method. •No other binding methods are accepted unless prior authorization is received from the clerk of the COA.
809.19 (8) (b) 3.		6.	Fonts. •Monospaced (e.g., Courier): 10 characters per inch, double-spaced, 1.5' margin on left and 1' margin on other 3 sides. •Proportional (e.g., Times New Roman): Proportional serif font, minimum printing resolution of 200 dots per inch, 13 point body text, 11 point for quotes and footnotes, leading of minimum 2 points, maximum of 60 characters per full line of body text. Italics may not be used for normal body text but may be used for citations, headings, emphasis and foreign words.
809.19 (8) (c)		7.	Length. •Monospaced (e.g., Courier): shall not exceed 50 pages for appellant's brief-in-chief and respondent's brief, 13 pages for appellant's reply brief. •Proportional (e.g., Times New Roman): shall not exceed 11,000 words for appellant's brief-in-chief and respondent's brief, 3,000 words for appellant's reply brief.
		8.	Page numbers. Center of bottom margin.
809.19 (8) (d)		9.	Certification. Rule 809.19 (8) (d) contains the language that must be used. The certification of compliance with form and length requirements must be contained in the brief, at the end of the brief. It cannot be a separate document. The certification must have the attorney's signature.
	F.	SERVICE AND FILING REQUIREMENTS
809.19 (8) (a) 2.		1.	Three judge appeals:
			a. b. c.	10 copies to court of appeals; 3 copies to each party; Attorney general is opposing counsel.
809.43 (1)		2.	One judge appeals:
			a.	8 copies to court of appeals;
			b.	3 copies to each party. Don't forget guardians, custodians or other parties.
			c.	DA or Corp. Counsel is opposing counsel.
809.80 (3)		3.	General rule for timely filing: Filing of any paper is not timely unless the appellate court clerk receives the paper within the time fixed for filing.
			a.	May accomplish by mail, courier or hand delivery;
			b.	Filing by fax permitted only as set forth in Rule 801.16;
			c.	Other electronic filing is not permitted unless otherwise ordered by supreme court.
809.80 (3) (b) & (4)		4.	Exception to general rule: Mailbox rule for briefs and appendices.
			a.	Does not apply to any other paper;
			b.	A brief or appendix is timely filed if, on or before the last day of the period for filing, it is correctly addressed and deposited in the US mail for delivery to the clerk by first class mail, or other class of mail that is at least as expeditious, postage prepaid, or delivered to a third-party commercial carrier for delivery to the clerk within 3 calendar days.
			c.	The attorney or person filing by mail must attach a certification or affidavit setting forth the date and manner by which the brief or appendix was mailed or delivered to a third-party carrier.
			d.	If attached, clerk will consider the brief or appendix filed on the date of mailing or delivery set forth in the certification or affidavit.
			e.	If no certification or affidavit is attached, the date of filing is the date on which the clerk receives the brief or appendix.
809.80 (3) (c)		5.	Exception to general rule: Pro se briefs and appendices from confined persons.
			a.	A pro se brief or appendix from a person confined in an institution (not only a prison or jail) is timely filed if it is correctly addressed and delivered to the proper institution authorities for mailing on or before the last day of the period for filing.
			b.	The confined person must file a certification or affidavit identifying the date on which the brief or appendix was delivered to the proper institution authorities for mailing.
	G.	CITATION OF SUPPLEMENTAL AUTHORITIES
809.19 (10)		1.	Pertinent authorities decided after briefing and before decision may be called to appellate court's attention by a letter to the clerk, with a copy to other parties.
		2.	Letter must set forth citation to new authority, identify the page of the brief or the point in oral argument to which it pertains, and briefly discuss the proposition that the new authority supports.
809.19 (11)		3.	Response may be filed within 11 days of service of the letter. Response must briefly discuss the reason why each authority does not support the stated proposition, unless the proposition is not disputed.

IX.  THE PETITION FOR REVIEW AND THE NO-MERIT PETITION FOR REVIEW
	A.	HOW AND WHEN TO FILE A PETITION FOR REVIEW (PFR)
809.62, 809.80 (3) (d)		1.	The PFR must be filed with the clerk of the supreme court within 30 days after the COA decision. This deadline cannot be extended.
			a.	Nonetheless, when the deadline is lost due to bureaucratic negligence attributable to the court, habeas relief may be available. State ex rel. Fuentes v. Court of Appeals, 225 Wis.2d 446, 593 N.W.2d 48 (1999).
809.80 (3) (e)			b.	A tolling rule is available only to pro se persons confined in institutions. The 30-day time limit is tolled on the date that the person delivers a correctly addressed petition for review to the proper institution authorities for mailing. The confined person must file a certification or affidavit identifying the date on which the petition was delivered to the proper institution authorities for mailing.
809.62 (2)		2.	The PFR must contain:
			a.	Statement of issues presented for review, method or manner of raising the issues in COA and how COA decided the issues.
			b.	Table of contents.
			c.	Concise statement of criteria for review enumerated in Rule 809.62 (1) relied upon to support the PFR, or other substantial and compelling reasons for review.
			d.	Statement of the Case. Description of nature of case, procedural status of case, dispositions in circuit court and COA, statement of facts not included in COA decision which are relevant to issue(s) presented for review.
			e.	Argument amplifying reasons relied on to support PFR, arranged in order of statement of issues presented.
			f.	An appendix containing, in the following order: decision and opinion of the COA; the judgment, orders, findings of fact, conclusions of law, and memorandum decisions of circuit court necessary for understanding the PFR; and any other portions of record necessary for understanding PFR.
809.62 (1)		3.	The supreme court's statutory criteria for granting review:
			a.	A real and significant question of federal or state constitutional law is presented.
			b.	The petition for review demonstrates a need for the supreme court to consider establishing, implementing or changing a policy within its authority.
			c.	A decision will help develop, clarify or harmonize the law and 1) the case calls for the application of a new doctrine rather than merely the application of well-settled principles to a factual situation; or 2) the question presented is a novel one, the resolution of which will have statewide impact; or 3) the question presented is not factual in nature but rather is a question of law that is likely to recur unless resolved by the supreme court.
			d.	The court of appeals' decision is in conflict with controlling opinions of the United States Supreme Court or the supreme court or other court of appeals' decisions.
			e.	The court of appeals' decision is in accord with opinions of the supreme court or the court of appeals but due to the passage of time or changing circumstances, such opinions are ripe for reexamination.
		4	Are there "other substantial and compelling reasons for review?"
			a.	Is it a serious question of statewide importance?
			b.	Is it an interesting case?
			c.	Is review consistent with the supreme court's obligation to keep the law in good order?
809.62 (3)		5.	Opposing party may file a response within 10 days of service of PFR.
809.62 (4)		6.	PFR and response must have white front and back covers and conform to the form and certification requirements of Rule 809.19 (8) (b) & (d).
809.62 (4)		7.	Length cannot exceed 35 pages in monospaced font, or 8,000 words in proportional font.
809.62 (1)		8.	Supreme court review is discretionary. Client's right to direct appeal is exhausted when PFR denied or when supreme court issues its opinion after granting review.
		9.	Counsel appointed to pursue direct appeal must file a PFR if arguably meritorious. (If PFR is not arguably meritorious, see IX. B. below.)
809.62 (6)		10.	Supreme court can grant PFR on conditions it considers appropriate, including filing of additional briefs. Oral argument is routinely scheduled.
		11.	Petitioner cannot raise any issue in supreme court that was not set forth in the PFR.
809.63		12.	When review is granted, the rules governing procedures in COA apply unless supreme court orders otherwise.
	B.	HOW AND WHEN TO FILE A NO-MERIT PETITION FOR REVIEW (PFR)
809.32 (4)		1.	The no-merit petition for review procedure applies only in cases in which the COA affirms the conviction following a fully briefed direct appeal that presented a meritorious issue (i.e. it does not apply when a NMR was filed and accepted by the COA).
State v. Mosley, 102 Wis. 2d 636 (1981)		2.	If you believe the court of appeals decision does not merit review by the WI supreme court under the criteria in Rule 809.62 (1), you must inform client why you will not file a PFR.
		3.	Client must be promptly informed that s/he will need to file their own petition for review, or that, if requested, you will file the formal sections for them but they must file the reasons and argument sections on their own.
		4.	The 'formal' parts are the statement of the case (includes the facts) and the appendix (which must include a copy of the court of appeals' opinion).
809.62 (1)		5.	Inform client of deadline: the supreme court clerk must receive PFR within 30 days from date of COA decision. Make sure client knows the court's address.
		6.	Practice Note: Because the PFR time limits cannot be extended, the defendant-appellant may submit the PFR and request additional time within which to supplement the argument portion.