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APPELLATE PRACTICE and PROCEDURE for SPD-Appointed Counsel

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APPELLATE PRACTICE and PROCEDURE for SPD-Appointed Counsel APPELLATE PRACTICE AND PROCEDURE for SPD-Appointed Counsel Fourth Edition August 2020 Wisconsin State Public Defender – Appellate Division Madison Office P.O. Box 7862 Madison, WI 53707-7862 (608) 266-3440 Milwaukee Office 735 N. Water St., Ste. 912 Milwaukee, WI 53202-4116 (414) 227-4805 Wisconsin State Public Defender Kelli S. Thompson 315 N. Henry St. - 2nd Floor State Public Defender Protecting PO Box 7923 Madison, WI 53707-7923 Jon Padgham Justice for all Office Number: 608-266-0087 / Fax Number: 608-267-0584 Deputy State www.wisspd.org Since 1977 Public Defender To the Appellate Practitioner: Thank you for signing on to take case appointments from the State Public Defender’s Appellate Division. 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 that 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. Again, thank you! We hope you find this work – as we do – interesting and rewarding. Very truly yours, The Appellate Division Management Team Wisconsin State Public Defender Kelli S. Thompson 315 N. Henry St. - 2nd Floor State Public Defender Protecting PO Box 7923 Madison, WI 53707-7923 Jon Padgham Justice for all Office Number: 608-266-0087 / Fax Number: 608-267-0584 Deputy State www.wisspd.org Since 1977 Public Defender PLEASE NOTE This handbook is distributed or posted as a general information guide for appellate practice in Wisconsin public defender cases. It is not 100% comprehensive and is not intended to constitute specific authoritative legal direction or advice. Attorneys should know, reference, and follow all relevant statutes, court rules, and case law when analyzing a matter or taking action in any given case. This publication was finalized August 2020. Subsequent changes to the law are not included. If you find any errors or omissions, please let a manager in the SPD Appellate Division know. i TABLE OF CONTENTS Note on Use of this Handbook ................................................................................. i CHAPTER ONE: INTRODUCTION TO APPELLATE PRACTICE I. Overview of the appellate process ...................................................1 a. A snapshot of our cases ........................................................1 b. Focus on Rule 809.30 and TPR Appeals .............................2 c. The scope of an SPD appellate appointment .......................4 i. The proceedings that are part of the appeal .............4 ii. The issues that may be appealed ..............................5 iii. Postjudgment matters left to trial counsel ................6 II. Managing your appellate cases ........................................................6 III. Calculating deadlines .......................................................................7 IV. Extending deadlines .........................................................................9 V. Maintaining a record of your work ................................................10 VI. Ethical note ....................................................................................11 CHAPTER TWO: REVIEWING THE CASE I. Introduction ....................................................................................12 II. Actions from appointment to receipt of the case materials ............12 a. Applicable deadlines ..........................................................12 b. Getting the appointment .....................................................13 c. First steps ...........................................................................14 d. Further steps .......................................................................16 III. Actions from service of the case materials to your filing date .................................................................................................18 a. Applicable deadlines ..........................................................18 ii b. Finding appellate issues .....................................................18 i. Cultivating competence generally ..........................19 1. Internet resources .......................................19 2. Treatises and other secondary sources........................................................20 3. Training and networking events .................21 ii. Finding issues in each individual case ...................21 1. Reviewing case materials ...........................21 2. Meeting with your client ............................22 3. Speaking with the trial attorney .................23 c. Developing potential issues ...............................................24 i. Investigating factual questions ...............................24 1. Generally ....................................................24 2. Hiring an investigator or expert .................25 ii. Researching legal questions ...................................25 1. Legal research 101 .....................................25 2. Specialized research ...................................26 a. State legislative history ..................26 b. Appellate briefs ..............................28 c. Municipal codes .............................28 3. Talking with other legal professionals ..............................................28 IV. Understanding your client’s appellate issues .................................29 a. Determining whether an issue is arguable .........................29 b. Considering the potential risks and benefits of each issue....................................................................................31 iii i. Risks and benefits related to the remedy ...............32 1. Vacatur of the judgment for a new trial .............................................................32 2. New sentencing or dispositional hearing........................................................33 3. Modification of sentence or dispositional order ......................................33 4. Commutation and credit .............................34 ii. Additional risk/benefit considerations ...................34 1. Overview ....................................................34 2. Sentence credit ...........................................34 a. Errors in credit ...............................34 b. Credit after vacatur of a conviction .......................................35 3. DOC programming ....................................36 4. Pending cases .............................................37 CHAPTER THREE: COMMUNICATING WITH YOUR CLIENT I. Introduction ....................................................................................38 II. Arranging a meeting ......................................................................38 a. Finding your client .............................................................38 b. Setting up a meeting ..........................................................40 i. Meeting in the prison system .................................40 ii. Meeting in a county jail or in the community ........41 iii. Timing the meeting ................................................41 iv. Documents to bring to the meeting ........................42 III. The initial meeting .........................................................................42 a. Establishing rapport and building trust ..............................42 iv b. Discussing the case ............................................................43 i. Facts related to potential appellate issues ..............44 1. Client’s understanding
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