Opinion
No. 2002AP1828-W.
Opinion Filed: November 17, 2005.
HABEAS CORPUS original proceeding. Writ granted in part and denied in part.
Before Dykman, Vergeront and Deininger, JJ.
This case has a long procedural history. See State ex rel. Ford v. Holm , 2004 WI App 22, 269 Wis. 2d 810, 676 N.W.2d 500. Ford petitioned for a writ of habeas corpus pursuant to State v. Knight , 168 Wis. 2d 509, 522, 484 N.W.2d 540 (1992). He argued that he received ineffective assistance of appellate counsel when Attorney James Fullin, who was appointed to represent him, closed his file without filing a postconviction motion, appeal or no-merit report on his behalf. Ford , 269 Wis. 2d 810, ¶ 1. We referred the matter to the circuit court to conduct an evidentiary hearing and make factual findings so that we could determine the ultimate legal issues — whether Ford knowingly and voluntarily waived his right to pursue a direct appeal of his conviction or, alternatively, whether he knowingly and voluntarily waived his right to be represented by counsel on appeal. Id. , ¶ 37. The circuit court has now made its findings and the parties have submitted briefs addressing the legal issues. After reviewing the circuit court's findings, the briefs and the record, we grant the writ in part and deny the writ in part.
¶ 2 "A person convicted in Wisconsin of committing a crime has a constitutionally guaranteed right to appeal. . . ." Id. , ¶ 2. They also have "[t]he right to counsel on direct appeal," which encompasses "the guarantee of effective assistance of counsel on appeal." State v. Evans , 2004 WI 84, ¶ 30, 273 Wis. 2d 192, 682 N.W.2d 784. These rights may be waived, but the waiver must be intentional, knowing and voluntary. State v. Albright , 96 Wis. 2d 122, 131, 291 N.W.2d 487 (1980).
¶ 3 We first address whether Ford knowingly and voluntarily waived his right to pursue an appeal on the issue of whether he should be allowed to withdraw his plea. The court's factual findings establish that Attorney Fullin thought this issue might be arguably meritorious, but that Ford affirmatively decided he did not want to pursue any issues that would result in the withdrawal of his plea and the possible reinstatement of another second-degree sexual assault charge. Because Ford knowingly and voluntarily waived his right to pursue on appeal a challenge to his plea, we reject the claim that he received ineffective assistance of appellate counsel when his attorney did not pursue this issue.
¶ 4 With respect to the sentence modification issue, however, we reach a different conclusion. Ford argues, and the State concedes, that Ford was entitled to have a no-merit report filed with respect to the sentencing issue. We agree. The circuit court found that Attorney Fullin did not file a no-merit report on this issue because he had identified a potentially meritorious issue pertaining to plea withdrawal that Ford did not want to pursue. Fullin's conclusion that he did not need to file a no-merit report in these circumstances, or offer to do so, was erroneous. We routinely permit defendants to forgo pursuing arguably meritorious issues for strategic reasons, but to still proceed with a no-merit review on the remaining issues. Attorney Fullin should have given Ford the option of a no-merit report on the sentencing issue when Ford expressed a desire to pursue relief as to this issue. Because we would have accepted a no-merit report on the sentencing issue that informed us Ford did not wish to pursue plea withdrawal, Ford received ineffective assistance of appellate counsel when Attorney Fullin failed to offer Ford that option. See Ford , 269 Wis. 2d 810, ¶ 31 n. 8 ("[W]henever the ineffective assistance is such as to deprive one totally of the right to appeal," the ineffective assistance "is legally presumed to result in prejudice to the defendant.") (citing Penson v. Ohio , 488 U.S. 75, 88 (1988)).
We recognize that appellate counsel need not pursue every issue that a defendant may wish to raise, and if counsel chooses to raise certain arguably meritorious issues but not others, a no-merit report may not be filed regarding the issues counsel chooses not to pursue. We also recognize that WIS. STAT. § 809.32 does not expressly authorize a "partial no-merit" procedure, but neither does it prohibit our consideration of a no-merit report that informs us the defendant has chosen to not pursue certain issues for strategic reasons and discusses any remaining issues that counsel has concluded lack merit. As noted, we routinely receive, review and accept such reports.
¶ 5 We therefore reinstate Ford's right to a direct appeal pursuant to WIS. STAT. RULE 809.30 (2003-04) with respect to sentencing issues only. We also request the State Public Defender to appoint Ford counsel for purposes of review of potential sentencing issues only. Counsel shall be appointed and any additional transcripts ordered no later than thirty days from the date of this opinion.
All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
By the Court. — Writ granted in part and denied in part.