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No-Merit Report Samples

Below are examples of no-merit reports filed by various attorneys in different kinds of cases. These are intended to provide you with a general idea of the different ways experienced attorneys compose no-merit reports in the different case types. None of these examples can serve as "boilerplate" that would work for all cases of a particular case type, because each case has a unique factual and procedural history. In addition, you should double-check all citations found in these reports, which were filed between 2010 and 2013. Although these are real no-merit reports, the names of people and places have been changed to maintain confidentiality.

No-Merit Reports filed in Criminal Cases
No-Merit Reports filed in Ch. 980 Cases
No-Merit Reports filed in Commitment Cases
No-Merit Reports filed in TPR Cases



FAQ – Appellate Division Discretionary Appointments
 

What is a discretionary appointment?

This refers to the appointment of appellate counsel in a situation where there is no statutory or constitutional right to counsel. In the sort of cases that we handle, that usually means that there has already been a direct appeal or the deadline for initiating a direct appeal has passed.

The authority for appointing counsel where there is no right to counsel is found at Wis. Stat. § 977.05(4)(j), which states that the SPD may appoint counsel, even though there is no right to counsel, if “the case should be pursued.” We are unable to make such appointments very frequently due to a lack of funding.
 

What types of cases are eligible for a discretionary appointment?

Discretionary appointments can only be made in case types that the SPD is statutorily permitted to handle, including criminal, juvenile delinquency, and termination of parental rights cases. We cannot make discretionary appointments in appeals arising out of divorce proceedings, civil lawsuits for monetary or injunctive relief, civil forfeiture cases, and many other kinds of cases.

Even in criminal cases, we are not permitted to appoint counsel to assist with an appeal of a denial of a motion for sentence modification (except as part of a direct appeal) or a denial of a motion for sentence adjustment under Wis. Stat. § 973.195.

How do I request a discretionary appointment of counsel?

 If the case originated in Milwaukee County, write to:

            State Public Defender – Appellate Division
            735 N. Water Street Ste. 912
            Milwaukee, WI 53202-4116

 If the case originated in any other Wisconsin county, write to:

            State Public Defender – Appellate Division
            P.O. Box 7862
            Madison, WI 53707-7862

Your letter requesting appointment should include a description of the nature of the case and the appellate issue or claim. It would also be helpful if you would include copies of any postconviction motion or appellate document that has been drafted or filed, along with copies of any other documents necessary to understanding the nature of your case and claim.

How does the Appellate Division decide whether to make a discretionary appointment?

The Appellate Division will appoint an attorney under our discretionary authority only when we are convinced that there is a reasonable chance of success on appeal and the issue presented is of statewide importance, is important to the development of the criminal law, and is so complex that representation by an attorney is necessary.

Can I get a discretionary appointment even if the Appellate Division previously appointed counsel to represent me on direct appeal?

Every request for discretionary appointment is considered on a case-by-case basis. If there was a previous appointment made, we will consider whether there is any issue that was not previously raised that meets our discretionary appointment criteria (described above), along with the circumstances of any issue(s) previously litigated or the circumstances under which you previously decided not to pursue an appeal.

Can the Appellate Division help me get sentence credit?

The Appellate Division does not appoint counsel to make the initial request for sentence credit to the trial judge. However, if the trial judge denies credit, and the defendant files a timely Notice of Intent to Pursue Postconviction Relief (under Wis. Stat. § 809.30(2)(b))from the denial of credit, and the defendant is financially eligible for appointment, the Appellate Division will appoint counsel to assist the defendant in appealing from the denial of the credit motion.

Therefore, before the Appellate Division can help you, you must ask the trial-level judge for the credit. You can ask your trial-level attorney, or the manager of the SPD office that appointed your trial-level attorney, for help with that initial request. Alternatively, or if you are denied trial-level assistance, you may write to the Appellate Division for forms and instructions on filing a motion for credit on your own.

Can the Appellate Division help me appeal a revocation of probation, extended supervision or parole?

The SPD’s Trial Division – not the Appellate Division – can appoint counsel to represent a revocation client in filing an administrative appeal and a petition for a writ of certiorari in the circuit court, which are the first two steps of any revocation appeal. If you have not yet taken these steps, you should contact the SPD trial office that covers the county of your conviction.

If you pursue an appeal of a revocation decision, and the circuit court denies the certiorari petition, the Appellate Division will consider a request for the discretionary appointment of counsel for the purpose of appealing the denial of certiorari, under the criteria described above.

If the Appellate Division denies a request for counsel, is there any other legal organization that can help me with my case?

Depending on your case type and problem, you may contact the State Bar of Wisconsin for information on legal assistance. You should be aware that there are very few organizations that provide free legal help, and even fewer that provide free help with appeals.

If you are incarcerated, you may apply for assistance from the University of Wisconsin Law School’s Remington Center – which includes Legal Assistance to Institutionalized Persons (LAIP) Project, the Family Law Project, and the Innocence Project. Write to:        

            Frank J. Remington Center
            University of Wisconsin Law School
            Rooms 4315-4318
            975 Bascom Mall
            Madison, WI 53706

If, ultimately, you appeal your case pro se (i.e. without an attorney), you may find it helpful to read the Wisconsin Courts’ “Guide to Appellate Procedure for the Self-Represented,” which is available online here.

Appellate Division Templates & Forms

Appellate Checklists:

Appellate Forms & Templates:

Samples:

The Handbook - Appellate Practice & Procedure for SPD-Appointed Counsel (updated 8/4/14) contains numerous sample motions, templates, correspondence, checklists, etc.
No-Merit Report Samples

Interlocutory (Permissive) Appeals from Non-final Orders or Judgments:

Interlocutory (Permissive) Appeals from Non-Final Orders or Judgments
Sample Petition for Leave to Appeal a Non-Final Order

Handbook - Appellate Practice & Procedure for SPD-Appointed Counsel
(2016 version - scroll down for link) 

Wisconsin’s rules of appellate procedure for criminal cases and other cases where there is a statutory or constitutional right to counsel provide unique litigation opportunities. In other jurisdictions, criminal appellate attorneys are limited to reviewing a static record and writing appellate briefs which raise preserved issues and/or errors so clear that they fall within “plain error” or “structural error” doctrines.

In contrast, under Wisconsin rules, the right to a direct appeal includes a right, and in some cases an obligation, to first move for postconviction or postdisposition relief in the circuit court. Postconviction litigation may involve a contested hearing or even an evidentiary hearing. Common postconviction motion issues include, for example, whether a guilty plea was involuntarily entered, whether trial counsel was ineffective, or whether a sentence should be reduced based on information rebutting the judge’s understanding of the defendant’s prior history or circumstances of the crime. Appellate attorneys in Wisconsin thus have the opportunity, and the duty, to enhance or develop the record, and to resolve all of a client’s claims in a single appeal.

This system makes Wisconsin appellate practice dynamic and interesting. Attorneys have more creative control over a case and get to employ a broader range of skills. But it also makes appellate practice in Wisconsin more challenging.  In addition to reviewing the trial record, Wisconsin appellate attorneys must consider and evaluate issues that were not raised and evaluate or reevaluate witnesses who may or may not have been part of the underlying case.  Consequently, in addition to traditional appellate skills, attorneys taking Wisconsin public defender appeal cases must also develop skills more typically associated with trial practice.

This handbook is intended as a general guide to this process. Of course, no guide is 100 percent comprehensive; this handbook is not intended to provide specific legal direction or advice.  It is a starting point, a guide.  In using this handbook, you should always verify citations, use your legal training and good judgment, and seek the advice of more experienced attorneys when needed. And no guide can substitute for intellectual curiosity and empathy, which we hope will inform every aspect of your practice.

Find it here.
How To Find An Appellate Brief

If you are looking for briefs filed in 2010 or after click here, after searching for the topic you are looking for, click the "case activity" link on the post. If you are looking for briefs filed between 1992-2009 click here. 

 

Appellate Division

The Wisconsin State Public Defender's Office (SPD) Appellate Division represents indigent clients on appeal. The Appellate Division is organized into 2 regions that provide representation throughout Wisconsin.

Appellate Division Resources:

Handbook - Appellate Practice & Procedure for SPD-Appointed Counsel (updated 8/4/14)
On Point (appellate case summary & analysis blog)
Templates & Forms

Briefs


About the Appellate Division:

Appellate Division Fact Sheet
Appeal Information for the SPD Trial Attorney
Appellate Attorney Performance Standards
Discretionary Appointments in Non-Direct Appeal Cases



Appellate Certification Application Materials:

Please complete all three forms:

General Certification Application (for all cases)

Certification Application - Appellate Cases

Appellate Litigation/Training Form

If you have questions about the appellate certification process please contact This email address is being protected from spambots. You need JavaScript enabled to view it. in the Madison Appellate Office or This email address is being protected from spambots. You need JavaScript enabled to view it. in the Milwaukee Appellate Office.


ACD Forms and Documents

All other Assigned Counsel Division questions can be directed to
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