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.
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)
8 See State v. Dowdy, 2012 WI 12, ¶5, 338 Wis. 2d 565, 808 N.W.2d 691
9 See State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433