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.
3 Wis. Stat. § 809.30(2)(b); A sample
Notice is available at www.wicourts.gov.
6 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)
No comments:
Post a Comment