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.