[  ] Was the client incarcerated at any point during the case and have all sentence credit issues been explored and resolved?

Ordinarily, counsel should come to the sentencing hearing prepared to advocate for all appropriate sentence credit related to the offense. Section 973.155(2) of the Wisconsin Statutes requires the sentencing court, after sentence is imposed, to make and enter a specific finding of the number of days for which sentence credit is to be imposed. Credit should be given "for all days spent in custody in connection with the course of conduct for which sentence was imposed." § 973.155(1)(a), Wis. Stat. The supreme court has held that an offender's status constitutes "custody" for this purpose whenever the offender is subject to an escape charge for leaving that status. See State v. Magnuson, 233 Wis. 2d 40, 606 N.W.2d 536 (2000).

If sentence credit cannot be resolved at sentencing, or if the lawyer who provided representation at sentencing learns that the amount of credit granted is less than that to which the defendant is entitled, sentencing counsel should file a motion with the sentencing court. A sample form motion is attached. If a sentence credit motion filed by counsel is denied in whole or in part and the defendant wishes to appeal from the denial, trial-level counsel is responsible for filing a Notice of Intent to Pursue Postdisposition Relief within 20 days of entry of the order denying credit. See 973.155(6). A sample form Notice of Intent for sentence credit orders is attached.

Sample Notice of Intent to Pursue Postconviction Relief for sentence credit orders

Every effort should be made to resolve restitution issues at sentencing. If restitution was not completely resolved at the sentencing hearing, trial counsel must do the work necessary to resolve this issue. However, if no restitution hearing is held or scheduled within 60 days after sentencing, the attorney may close the file, and a Special Proceeding may subsequently be opened by applying to the First Assistant if the defendant requests representation regarding the previously undetermined restitution amount.

There may well be situations where it would be preferable for the defendant to leave the issue of restitution unresolved if it is unlikely the court will, for whatever reason, ever issue a restitution order. This possibility should be discussed with the defendant in the event the court leaves the question of restitution open after sentencing. In every case where restitution was not ordered at sentencing or the amount was left open, the defendant should be advised to contact his trial attorney in the event he presented with a restitution order or proposed order at some time later.

When restitution is considered by the trial court, some things to be aware of for addressing restitution issues are:

• A defendant is entitled to a hearing, although it may be informal, to challenge restitution. State v. Madlock, 230 Wis. 2d 324 (Ct. App. 1999).

• The court must consider the defendant's ability to pay and the needs and abilities of his or her dependents before ordering restitution. Wis. Stat. § 973.20(1)(a).

• In the absence of an objection to a restitution order the defendant's silence is a constructive stipulation to the amount ordered and the defendant has the burden of offering evidence of inability to pay. State v. Hopkins, 194 Wis. 2d 36, (Ct. App. 1995), State v. Szarkowitz, 157 Wis. 2d 740 (Ct. App. 1990).

• A lawful restitution order requires a causal nexus between the crime and the disputed damage is required. State v. Canady, 2000 WI App. 87. However, restitution can be order for any read-ins considered at sentencing. State v. Cleaves, 181 Wis. 2d 73 (Ct. App. 1993).

The trial court cannot order any of the following:

• That bail be applied toward payment of restitution. State v. Cetnarowski, 166 Wis. 2d 700 (Ct. App. 1992).

• A requirement that defendant deposit monies for future counseling costs. State v. Handley, 173 Wis. 2d 838 (Ct. App. 1993)

• That the Dept. of Corrections determine the amount of restitution and to take payments form the defendant's prison account or that the defendant be ordered to repay drug-buy monies to law enforcement. State v. Evans, 2001 WI App 27

• That restitution be made as a condition of probation restitution that was ordered in a separate criminal case. State v. Torpen, 2001 WI App 273.

• Payment of restitution to anyone other than a "victim" of the crime. State v. Gribble, 2001 WI App 227.

There are four alternative procedures under Wis. Stat. § 973.20(13)(c), by which a court can, at sentencing, postpone a determination of restitution amounts without resorting to a judicial evidentiary hearing. If the court constructs its own procedure to set restitution it is improper. However, nothing precludes the trial court from addressing the issue of restitution beyond the time limits set by this statutue if the proper standards are applied at a later date. State v. Perry, 181 Wis. 2d 43 (Ct. App. 1993).

Consider the following checklist prior to sentencing:

Is the proposed payee a "victim" within the meaning of the restitution statute?

Does the defendant have the ability to pay?

Are there any set-offs to be applied, such as insurance payments, to the request?

If the amount is left open, has the defendant been instructed to inform trial counsel of any notices or orders concerning restitution received at a later date?

If the amount of restitution has been left open, will requesting a final determination of restitution create a financial responsibility that would not otherwise be likely?

The Notice of Right to Seek Postconviction Relief (CR-233) is the standard form required by the court. Before adjourning the sentencing proceeding the court is required to direct the defendant and defendant's trial counsel to sign the form "indicating that the lawyer has counseled the defendant regarding the decision to seek postconviction relief, and that the defendant understands that a notice of intent to pursue postconviction relief must be filed...within 20 days after sentenceing... " Wis. Stat. 973.18(3)

• Best practice would be to meet with the client after sentencing and get a signed acknowledgement of the client's final decision. The same CR-233 form can be used for this purpose. Counsel should request that the court "make appropriate orders to allow the defendant to confer with counsel before being transferred to the state prison. " Wis. Stat. 973.18(4)

• Minimum practice standards require that trial counsel document that counsel : (1) fully informed the undecided client of his/her appellate rights and options, (2) accurately informed the client of all appellate deadlines and the consequences of failing to comply with those deadlines, and (3) made arrangements to ensure that the client has a viable means of timely communicating a final decision to counsel. Be aware that simply giving your client your address and phone number does not necessarily resolve the access issue - persons transferred from jail to prison often are separated from their property/papers or do not have access to phones or stamps. A person visit or phone call initiated by you prior to the Notice of Intent deadline is the better practice.

Sample Notice of Intent

Filing a notice of intent does not obligate trial counsel to represent the defendant in postconviction or postdisposition proceedings seeking relief from the judgment of conviction or dispositional order. However, if a notice of intent is filed, it is trial counsel's responsibility to file a motion for release pending appeal in the trial court if appropriate. 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. If a motion for release is filed, the District Attorney must be served. Copies of the motion and the order deciding the motion should be provided to the client and to Appellate Intake.

Sample Motion for Release Pending Appeal

When you file a notice of intent to pursue postconviction relief or postdispostion and the client requires appointment of counsel by the SPD, your trial representation is not complete until you have done the following:

1. Forwarded all transcripts obtained during the court of your trial representation to SPD Appellate Intake
2. Forwarded a date-stamped copy of the notice of intent to SPD Appellate Intake
3. Sent a completed Appellate Questionnaire to SPD Appellate Intake at SPD Appellate Intake, P.O. Box 7862, Madison WI 53707
4. Files a Motion for Release Pending Appeal if appropriate.

If you decide not to file the motion for extension and notice of intent, you should direct your former client to contact the Appellate Division for assistance in filing a pro se motion for extention and notice of intent (pro se forms are available) or for information regarding his/her eligibility for a discretionary appointment of counsel.