A.
The Decision to Appeal:
Statutory [Wis. Stat. Rule 809.30(2)] and ethical [SCR 20:1.16] duty to
advise client of postconviction or appeal rights
1.
Advise client:
a.
Right to seek postconviction/appellate relief - CR-233 -
Notice of Right to Seek Postconviction Relief
b.
Merits of appealing issue
c.
Length of time (SPD has 30/50 days to appoint, court
reporters have 60 days to prepare transcripts, appellate attorney have 60 days
to file pcm/noa)
d.
Fee:
i.
No trial - $480/$60 prepay
ii.
Trial - $1200/$120 prepay
2.
Ultimately it is the client’s
decision whether to file NOI.
B. Notice of Intent (NOI) –
Rule 809.30(2)
1.
Notice of Intent to Pursue PostConviction Relief starts
statutory process for postconviction or appeal process for criminal cases.
2.
Mandatory NOI contents: Rule 809.30(2)(b) 1 through 6.
3.
NOI must be filed in the circuit court and served on the
prosecutor and any other party.
4.
Deadline for filing NOI
a.
Within 20 days after date of sentencing.
b.
Time limit may be enlarged upon showing of “good cause.”
c.
If past 20 days or if later discover NOI filed past 20
days you need to file motion to extend time to file NOI in court of appeals
(COA).
d. COA – Need to identify
correct District at top of motion.
e. Original plus 4 copies
to COA, serve one copy on DA and one copy on clerk of circuit court.
f.
COA address:
g. File Notice of Intent
(NOI) with clerk of court prior to or at same time as motion to extend.
C. If your client is
requesting SPD representation on appeal, send to SPD Appellate Division Intake
Unit,
1.
Copy of file stamped NOI
2.
Completed SPD
Appellate Questionnaire
3.
Copy of all transcripts obtained during the course of
representation
4.
Motion for Release Pending appeal or Stay of sentence
pending appeal (if applicable) (see below)
A.
ORDERING TRANSCRIPTS AND COURT RECORD:
1.
Within 5 days of the filing of the NOI, the clerk of
court shall send a copy of the NOI, the judgment and the judgment roll to:
a. To the SPD appellate
intake, if the client is seeking SPD representation. 809.30(2)(c) 1.
b. To the person’s retained
counsel or to the person, if the person is not seeking appointed counsel.
809.30(2)(c) 2.
2.
If you are appointed, SPD appellate intake will order the
transcripts and court record to be sent to you:
a. Deadline for ordering –
30 days,or 50 days if indigency needs to be redetermined. 809.30(2)(e)
3.
If you are retained, the deadline for ordering the
transcripts and court record is:
a. 30 days after the filing
of the NOI, if the person has not requested representation by the SPD.
809.30(2)(f).
b. 90 days after the filing
of the NOI, if the person has been denied representation by the SPD.
4. Presentence Investigation report (PSI):
a.
In some
counties, the PSI is provided as part of the court record request.
b.
In
i.
Identify the agent who prepared the PSI. The
agent’s name, DOC # and FAX # may be obtained from the Probation and
Parole Office for
ii.
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.
iii.
Any problems with the process should be referred to the
Milwaukee Appellate Office Attorney Supervisor, 414-227-4805.
c.
Note: Other counties may also require court orders to
obtain the PSI and/or have a different procedure for obtaining them.
d.
Note: 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).
B.
UPON OPENING YOUR FILE
1. Read
2. Review the "Appellate Division's
Minimum Attorney Performance Standards" at http://www.wisspd.org/html/appellate/AppAttyPerfStan.asp
3. Review the Direct 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)
4. Check
file:
a. Was NOI timely filed? If not, file
motion to extend deadline.
b.
Check Judgment. Is the judgment
appealable under 809.30?
c. Were all the necessary transcripts
ordered? If not, order transcripts and
file a motion with the COA to extend the deadline for ordering
transcripts.
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?
C.
IS A MOTION FOR RELEASE PENDING APPEAL WARRANTED?
1.
No longer
presumptive in misdemeanor cases
2.
The trial
court has the discretion to grant release pending appeal in both misdemeanor
and felony cases. The relevant statutory provisions are Wis. Stats. § 809.31,
969.01,
969.08
and 969.09.
3.
Once motion
is filed, court shall hold a prompt hearing. § 809.31(2)
4.
§809.31(3)
outlines what a court must find to grant release:
a.
No
substantial risk of failure to appear to answer the judgment after completion
of appeal;
b.
Defendant not
likely to commit serious crime, intimidate witnesses, or otherwise interfere with
administration of justice;
c.
Defendant
will promptly prosecute postconviction proceedings; and
d.
Postconviction
proceedings are not taken for purposes of delay.
5.
§809.31 (4)
list considerations for court in determining the motion:
a.
Nature of crime;
b.
Length of
sentence;
c.
Other factors
relevant to pretrial release.
6.
Merits of appeal can be considered by circuit court in
considering release pending appeal.
7.
District Attorney must be served with copy of motion for
release pending appeal.
8.
Copies of the motion and the order deciding the motion
should be provided to the client.
9.
If circuit court grants release and schedules review
date:
a.
Be prepared to inform court of anticipated deadlines,
receipt of transcripts, etc.
b. Notify client of Court Review date and location.
10.
809.31(5) outlines procedure for filing a motion seeking
appellate review of a circuit court’s grant or denial of motion for release
pending appeal.
11.
In probation case – consider motion to stay sentence
pending appeal. See 808.07(2) and 809.12; Criteria -
12. If defendant has
condition time – consider stay of condition time pending appeal
D.
COMPLIATION
OF COURT RECORD AND TRANSCRIPTS
1. TRANSCRIPTS
a.
Track receipt
of the transcripts
b.
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.) 809.30 (2)
(h) & 809.10 (1)
(b) 5
i.
Definition of service, and computation of
time. 801.14
& 801.15
c.
Wrong
transcript ordered or ordered from incorrect court reporter – you must order
transcript and file motion with the COA to extend deadline to order transcript
d.
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 (7)
(c) & (d); State v.
DeFilippo, 2005 WI App 213; State v.
Raflik, 2001 WI 129.
e.
Missing or
defective transcript:
File motion to supplement, correct or reconstruct record. If omissions are
significant and irreparable, reversal warranted. 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.
.
2. COURT RECORD
a. Check
record to make sure you have received all documents.
b. Check
judgment roll to see if any hearings occurred after the transcripts were ordered
(e.g. restitution hearings or a motion for bail pending appeal). If so, order transcript and file motion in
the COA to extend deadline for ordering transcripts.
c. In
d. If
exhibits were returned to police, call DA to make arrangements to view exhibits.
A.
REVIEW
1.
entire court
record, transcripts, exhibits, and PSI
2.
Review the
"Issues Checklist" at http://www.wisspd.org/html/appellate/isscheck2.asp
3.
Initial
research: statutes, caselaw, SPD website case summaries
B.
INVESTIGATION
1.
Consult with your client in person
a.
You cannot determine all the issues which may
merit post conviction or appellate litigation without consulting with your client.
b.
Locate client:
i.
If in custody
locate via Vinelink www.vinelink.com/vinelink/initMap.do
or via DOC: 608/266-2097 (have your client’s DOB and DOC # available)
c.
Client can
provide facts outside of record
d.
Establish relationship
e.
Necessary to
investigate guilty, Alford or no contest plea cases
i.
Need to appraise client’s understanding of
charges, punishment and other issues related to entering a plea.
ii.
You cannot
determine whether a plea is knowing, voluntary and intelligent without direct
consultation with the client.
f.
Need to assess
client’s level of functioning and competency
i.
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. State v. Debra A.E., 188
ii.
Need to assess if there are any
mental health issues not previously
recognized by court or counsel
2.
Consult with
trial counsel about possible issues and facts outside record
3.
If necessary,
investigate additional facts outside of the record:
a.
Obtain police
records from DA, trial counsel or additional police reports from open records.
b.
Interview
witnesses
c.
Obtain client
medical, institution or other records.
i.
Need release
of information from client
d.
Review trial
counsel’s file
i.
May need signed
release of information from client
ii.
If want to
review trial counsel’s SPD voucher (if appointed counsel) – you need to obtain
a signed release of information from the client and submit it to the SPD
Assigned Counsel Division
e.
Consider
retaining an expert where appropriate