Wednesday, November 25, 2015

How the Criminal Appeals Process Works in Wisconsin, Part II: Appealing to the Court of Appeals

Seeking postconviciton relief in the circuit court where a client was convicted is most often a necessary first step in appealing a criminal conviction, and doing so provides several advantages.1 Burdens of proof are lower, the parties are all familiar with proceedings which have previously occurred, and many circuit court judges are more likely to reverse themselves than a court of appeals would be to find error.2

When an Appeal is Necessary

Sometimes, though, relief can’t be obtained at the circuit court level. Oftentimes considerable time and effort went into the proceedings that resulted in a conviction. A circuit court, the court’s staff, the prosecutor, investigators, witnesses, and sometimes a jury will have put many combined hours into proceedings which resulted in a conviction. Thus, prosecutors especially are protective of their convictions, and will often fight to prevent postconviction issues from even being heard.3 Some judges, too, may take offense to their previous rulings being challenged, and use postconviction proceedings to patch up shoddy rulings after the fact.4

Prosecutors and judges who have such an attitude are missing the point of their jobs. While it’s human to feel as though an investment of time might be wasted by overturning a verdict or permitting the withdrawal of a plea, the job of both the judge and the prosecutor is to do justice.5 Justice is undermined when an innocent is convicted, or even when a guilty person is convicted through unfair proceedings.6 While the dereliction of some prosecutors and judges is disgraceful, only in the rarest of circumstances would it be grounds for appeal.7

Briefing and Decision Timeframes

Whatever the reasons, if a client’s objectives are not met after a postconviction motion has been decided by the circuit court, the next step is to file a Notice of Appeal. This must happen within 20 days of the circuit court's decision on the matter.8 After filing a Notice of Appeal, the county clerk of courts has 40 days to compile the record and forward it to the Court of Appeals.9 After the record is submitted to the Court of Appeals, appellate counsel has 40 days to compose and file a brief.10 After the defense submits their brief, the State has 30 days to write a response brief.11 Appellate counsel then has fifteen days to file a reply brief, or to notify the Court of Appeals that no reply is necessary.12 Whether or not to submit a reply brief depends on whether the State’s brief merits a reply.13  

While these timeframes are the default by statute, they may be enlarged or shortened. Timeframes can be enlarged upon motion to the Court of Appeals.14 Conversely, since all the deadlines are relative to whatever event preceded them, they may be shortened if any of the participants simply takes less time than they're afforded by statute. For instance, under the statutory timeframes a defendant-appellant's brief would be due 80 days after filing the Notice of Appeal if the county clerk of courts takes their full 40 days to forward the record to the Court of Appeals. If the Clerk only takes 7 days, however, the defendant-appellant's first brief is still due 40 days after that. Likewise, if the State only takes a few days to write a response brief, the defendant-appellant's timeframe for filing a reply brief begins when that brief is filed anyway. 

The timeframes are complicated since they’re all contingent on each other. Luckily, most districts in the Wisconsin Court of Appeals are liberal in granting first and second extensions of time. Thus, if a party had blocked off time to work on a brief, but the deadline for the brief is suddenly moved up because another participant did their job quickly, the Court of Appeals is likely to grant an extension of time.

Unique Aspects of the Appeal: Opposing Counsel, Judicial Panels, and Oral Argument

If the appeal is of a misdemeanor conviction, the District Attorney's office remains the representative of the State.15 Appeals of misdemeanor convictions are decided by one Court of Appeals judge.16 A defendant may request that a misdemeanor appeal be considered by a three judge panel instead.17 If the appeal is of a felony conviction, the Attorney General's office replaces the District Attorney’s office as the representative of the State.18 Appeals of felony convictions are decided by a three judge panel.19 

The Court of Appeals only rarely hears oral arguments. In postconviciton motion hearings before the circuit court, the court will likely take evidence or at least hear supplemental argument from the parties. This is usually the case because, with a circuit court’s busy schedule, it is easier to announce its decision rather than take the time to write it. The Supreme Court always conducts oral arguments in the cases it accepts for review, though it always issues a written decision rather than announcing it from the bench. This is necessary at the very least because the seven justices need to discuss the case before deciding it; Often justices will write concurrences or dissents, as well. The Court of Appeals, though, hears arguments in less than 1% of the cases it decides.20

The Decision

Finally, the Court of Appeals takes as long as necessary to review the briefs and issue a decision. The average time it takes for a three-judge decision is about a year; The average time for a one-judge decision is a little over 6 months.21 Most of the time, the Court of Appeals affirms the circuit court. In cases where they don’t, they might reverse the decision of the circuit court and grant relief immediately, or remand the case to the circuit court so that the circuit court can correct its error.

If relief isn’t gained through the Court of Appeals, an appeal to the Wisconsin Supreme Court may be appropriate. That’s the topic of the next and final post in this series.

Attorney Anthony Jurek is an experienced appellate advocate who has gained relief for his clients in the Wisconsin Supreme Court, the Court of Appeals, and in circuit courts across the State of Wisconsin. Call him today at (608) 843-8909 for a free consultation.

1 See previous post.
2 For example, a circuit court’s “discretionary determinations” (such as findings of fact or whether to admit evidence) are most often reviewed by courts of appeal using a “clearly erroneous” standard of review: That is to say, an appellate court will affirm the circuit court unless the circuit court’s ruling “applied the wrong legal standard” or is “totally unsupported by facts in the record.” See, e.g., State v. Sarfraz, 2014 WI 78, ¶ 35, 356 Wis.2d 460, 851 N.W.2d 235; State v. Garfoot, 207 Wis.2d 211, 224, 558 N.W.2d 626 (1997). On the other hand, a circuit court considering its own rulings in the context of a postconviction motion hearing can arguably do so de novo, as a matter of reconsideration, simply by changing its mind. See State v. Sutton, 2012 WI 23, ¶ 19, 810 N.W.2d 210.
3 See People v. DiGuglielmo, 2008 NY Slip Op. 51938(U), 21 Misc. 3d 1103(A)(Westchester County Court, September 17, 2008)(“[I]t does seem to demonstrate, to some extent, what the Defendant is alleging in this case that the People and their agents are seemingly willing to go to whatever lengths necessary to protect their conviction and/or their decisions once they are made. . . . Another example of the People’s willingness to protect their conviction, at the expense of discovering the truth, can be seen . . .”), rev’d, 75 A.D.3d 206 (2010);17 N.Y.3d 771 (2011). This citation is for illustrative purposes only, as it is a slip opinion which was subsequently reversed.
4 See State v. Devera, No. 10AP126-CR, unpublished per curiam decision, ¶ 13 (WI App November 17, 2010)(“The court’s written postconviction motion decision belies the assertion that its reliance was harmless. The court returned to the very comments that it had already had conceded were inaccurate to buttress its finding that it had employed the requisite reasoning process in crafting the sentence.”). This citation is for illustrative purposes only, as it is an unpublished per curiam decision with no authority under Wis. Stat. § 809.23(3)(b).
5 See, e.g.State v.Williams, 2002 WI 1, n.38, 249 Wis.2d 492, 637 N.W.2d 733 (“A prosecutor's interest is not to win a case but to see that justice shall be done.”); State v. Brockett, 2002 WI App 115, ¶ 16, 254 Wis.2d 817, 647 N.W.2d 356 (“A judge’s job is to do justice.”).
6 See Brady v. Maryland, 373 U.S. 83, 87 (1963)(“Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.”); In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring) ("It is far worse to convict an innocent man than to let a guilty man go free.").
7 See upcoming posts on prosecutorial misconduct and judicial bias.
13 Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 74-75 (Thompson/West 2008)

Wednesday, November 18, 2015

How the Criminal Appeals Process Works in Wisconsin, Part I: Postconviction Procedures

It is an unfortunate fact that people end up unjustly convicted of criminal conduct. Whether the conviction was unjust because the defendant was actually innocent or because the proceedings which led to the conviction were unfair, there are procedures for appealing an unjust conviction. Appeals can challenge a conviction itself or seek to modify the sentence imposed. 

The criminal appeals process in Wisconsin requires navigating a complex procedure governed by Wisconsin Statutes, which regulate everything from page margins and font sizes to strict timeframes for the filing of required documents.1 Perfecting an appeal requires identifying what went wrong in circuit court proceedings, researching applicable law, and composing arguments to pursue the relief a client desires. The Court of Appeals affirms over 80% of circuit court decisions in criminal cases.2 It is important to retain experienced, proven counsel at the earliest opportunity to maximize your chances for success in what will likely be an uphill battle.

The appeals process begins when trial counsel files a Notice of Intent to Pursue Postconviction Relief, which must happen within 20 days of conviction or sentencing. 3 After a Notice of Intent to Pursue Postconviction Relief is filed, postconvicton counsel will request the circuit court record, the relevant transcripts, and trial counsel’s file. The circuit court record consists of all the documents filed with the court in writing: The original criminal complaint or information, discovery demands, pretrial motions, motions in limine, proposed jury instructions, etc.4 Transcripts are verbatim transcriptions of what was said in any on the record proceedings. Trial counsel's file will include important documents that aren't part of the court record: Documents that the District Attorney's office turned over in the course of discovery, such as police reports, witness statements, or videos.5

There is no rule that prevents trial counsel from serving as postconviction or appellate counsel as well, but it is best practice to have a different lawyer. Trial counsel will likely be the most familiar with the case, and that can be an advantage. It can also be a disadvantage: Trial counsel may be set in a theory of the case that did not work, may be unaware of what they have missed, and in the worst case may have been ineffective. Obviously, trial counsel is not in the best position to evaluate whether they were effective or ineffective. While many lawyers practice both trial and appellate law, those areas require very different skill sets: Trial lawyers must think on their feet, be familiar with the nuances of local rules, and have a flair for live presentation; Appellate lawyers must be adept at research, able to synthesize a complex body of applicable law, and communicate their ideas persuasively in writing. New postconviction counsel will bring a fresh perspective to the case, and be on the lookout for things that trial counsel may have missed or ways in which trial counsel may have been ineffective.

Communication with a client is the foundation of appellate advocacy. While postconviction counsel has a variety of strategies to choose from, it is the client who decides the objectives on appeal.6 Some avenues of appeal may pose more risk than they’re worth: Only the client, whose liberty is at stake, is in the position to make that determination. For instance, even when a client has entered a guilty plea, a client might choose to either try to withdraw that plea or to challenge the sentence that was imposed. If the plea is withdrawn, charges that were dismissed as a result of a plea agreement would come back into play, as a result increasing the possible penalty a client might be exposed to. In this particular hypothetical, a client may choose instead to seek sentence modification. Each case is different, and requires a personal, individualized approach.

After receiving all the required documentation and interviewing both the client and trial counsel, postconviction counsel will scour the record for possible ways to meet the client’s objectives. In most cases, the next step will be a motion for postconviction relief to the circuit court. In Wisconsin, unless the issue is sufficiency of the evidence or an issue already decided, a defendant must first seek relief from the court where they were convicted.7 This is important for several reasons: In Wisconsin, most appeals to the Court of Appeals do not involve oral argument, nor does the Court of Appeals consider any evidence outside the existing record. A postconviction motion lets the circuit court consider the issue and develop an evidentiary record that an appeals court may later review. Importantly, all issues must be brought before the circuit court in a postconviction motion, or they will be deemed waived and a court of appeals may refuse to review them. 8 

If a postconviction motion alleges facts which would entitle a defendant to relief, the circuit court must hold an evidentiary hearing on the matter.9 At the evidentiary hearing, the circuit court will take evidence and hear arguments related to the postconviction motion. In postconviction motion proceedings, the State is still represented by the District Attorney's office.10 The circuit court may issue an oral decision at the postconviction motion hearing, or take time to write a decision after the hearing. After a postconviction motion is filed, a circuit court has 60 days to decide the postconviction motion.11 Whether it is in a written decision or a one-line order reading "for reasons stated on the record, the Defendant's motion is granted/denied," a written order is necessary to pursue an appeal. 12

The best chance for success is often at the lowest level of court: Burdens and standards of review are often lower than they would be in the Court of Appeals. As a practical matter, circuit courts are more familiar with the proceedings, and a circuit court may be more inclined to correct its own error than a Court of Appeals would be to to find that the circuit court erred. My next post will outline the process that must be followed in the unfortunate event that relief isn't obtained at the circuit court level, and an appeal to the Court of Appeals is necessary.

Attorney Anthony Jurek is an experienced appellate advocate who has gained relief for his clients in the Wisconsin Supreme Court, the Court of Appeals, and in circuit courts across the State of Wisconsin. Call him today at (608) 843-8909 for a free consultation.

Wis. Stat. § 809.30(2)(b); A sample Notice is available at
See State v. Daniel, 2015 WI 44, ¶47, 362 Wis. 2d 74, 862 N.W.2d 867 (citing State v. DebraA.E., 188 Wis.2d 111, 523 N.W.2d 727 (1994); SCR 20:1.2)
 See State v. Dowdy, 2012 WI 12, ¶5, 338 Wis. 2d 565, 808 N.W.2d 691
See State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433
12 See Wis. Stat. § 809.30(2)(i)State v. Malone, 136 Wis. 2d 250, 257-58, 401 N.W.2d 563 (1987)