Section 809.32. Rule (No merit reports).

 

(1)   No-merit report, response, and supplemental no-merit report.

(a) No-merit report. If an attorney appointed under s. 809.30 (2) (e) or ch. 977 concludes that a direct appeal on behalf of the person would be frivolous and without any arguable merit within the meaning of Anders v. California , 386 U.S. 738 (1967), and the person requests that a no-merit report be filed or declines to consent to have the attorney close the file without further representation by the attorney, the attorney shall file with the court of appeals 3 copies of a no-merit report. The no-merit report shall identify anything in the record that might arguably support the appeal and discuss the reasons why each identified issue lacks merit.

(b) Counseling and notification.

1. Prior to the filing of a no-merit report, the attorney shall discuss with the person all potential issues identified by the attorney and the person, and the merit of an appeal on these issues. The attorney shall inform the person that he or she has 3 options:

a. To have the attorney file a no-merit report;

b. To have the attorney close the file without an appeal; or

c. To have the attorney close the file and to proceed without an attorney or with another attorney retained at the person's expense.

2. The attorney shall inform the person that a no-merit report will be filed if the person either requests a no-merit report or does not consent to have the attorney close the file without further representation by the attorney. The attorney shall inform the person that if a no-merit report is filed the attorney will serve a copy of the transcripts and the circuit court case record upon the person at the person's request. The attorney shall inform the person that, if the person chooses to proceed with an appeal or chooses to have the attorney close the file without an appeal, the attorney will forward the attorney's copies of the transcripts and circuit court case record to the person at the person's request. The attorney shall also inform the person that the person may file a response to the no-merit report and that the attorney may file a supplemental no-merit report and affidavit or affidavits containing facts outside the record, possibly including confidential information, to rebut allegations made in the person's response to the no-merit report.

(c) Certification by attorney. The attorney shall append to the no-merit report a signed certification that the attorney has complied with the client-counseling and client-notification requirements of par. (b) . The certification shall be in the following form:

CERTIFICATION BY ATTORNEY

I hereby certify that I have discussed with my client all potential issues identified by me and by my client and the merit of an appeal on these issues, and I have informed my client that he/she must choose one of the following 3 options: 1) to have me file a no-merit report; 2) to have me close the file without an appeal; or 3) to have me close the file and to proceed without an attorney or with another attorney retained at my client's expense. I have informed my client that a no-merit report will be filed if he/she either requests a no-merit report or does not consent to have me close the file without further representation. I have informed my client that the transcripts and circuit court case record will be forwarded at his/her request. I have also informed my client that he/she may file a response to the no-merit report and that I may file a supplemental no-merit report and affidavit or affidavits containing matters outside the record, possibly including confidential information, to rebut allegations made in my client's response to the no-merit report.

Signed:....

Signature

(d) Service of copy of no-merit report, transcript, and circuit court case record. The attorney shall serve a copy of the no-merit report on the person and shall file a statement in the court of appeals that service has been made upon the person. The attorney shall also serve upon the person a copy of the transcript and circuit court case record within 5 days after receipt of a request for the transcript and circuit court case record from the person and shall file a statement in the court of appeals that service has been made on the person.

(e) Response to no-merit report. The person may file a response to the no-merit report within 30 days after service of the no-merit report. If the person files a response, the clerk shall, within 5 days after the filing of the response, send a copy of the response to the attorney who filed the no-merit report.

(f) Supplemental no-merit report. If the attorney is aware of facts outside the record that rebut allegations made in the person's response, the attorney may file, within 30 days after receipt of the person's response, a supplemental no-merit report and an affidavit or affidavits, including matters outside the record. The supplemental report and affidavit or affidavits shall be served on the person, and the attorney shall file a statement in the court of appeals that service has been made upon the person.

(fm) Electronic no-merit report and supplemental no-merit report. An attorney filing a no-merit report or the optional supplemental no-merit report under this rule shall file with the court a copy of the no-merit report and supplemental no-merit report, if any, in electronic form, using the procedure under s. 809.19 (12) . The date on which the paper no-merit report or supplemental no-merit report is filed shall be the official date of filing of the no-merit report or supplemental no-merit report. The electronic copy of the no-merit report and supplemental no-merit report shall be electronically transmitted on or before the date that the paper no-merit report and supplemental no-merit report is filed. An electronic copy of a no-merit report or supplemental no-merit report submitted to the electronic filing system before the close of regular business hours shall be considered transmitted on that date. An electronic no-merit report or supplemental no-merit report submitted after the close of regular business hours shall be considered transmitted the next business day. The attorney shall certify that the text of the electronic copy of the report is identical to the text of the paper copy of the report. Notwithstanding s. 801.17 (9) [ s. 801.18 (9) ], the paper copy of the no-merit report or supplemental no-merit report remains the official court record. An attorney who lacks technological capability to comply with this subsection may file a motion under s. 809.14 for relief from the electronic filing requirements at the time the attorney files the paper no-merit report or supplemental no-merit report. An attorney shall show good cause why it is not feasible to file a copy of the report electronically.

(g) Remand for fact-finding prior to decision. If the person and the attorney allege disputed facts regarding matters outside the record, and if the court determines that the person's version of the facts, if true, would make resolution of the appeal under sub. (3) inappropriate, the court shall remand the case to the circuit court for an evidentiary hearing and fact-finding on those disputed facts before proceeding to a decision under sub. (3) .

(2)   Notice of appeal, statement on transcript, service of copies. The attorney also shall file in circuit court a notice of appeal of the judgment of conviction or final adjudication and of any order denying a postconviction or postdisposition motion. The notice of appeal shall be identified as a no-merit notice of appeal and shall state the date on which the no-merit report is due and whether the due date is calculated under par. (a) or (b) . The clerk of circuit court shall transmit the record in the case to the court pursuant to s. 809.15 . The attorney also shall file a statement on transcript complying with the requirements of s. 809.11 (4) , except that copies of the transcript need not be provided to other parties. All papers filed with the court under this subsection, except the transcript, shall be served on the state in accordance with s. 809.80 (2) (b) and on any other party. The no-merit report, notice of appeal, and statement on transcript must be filed within whichever of the following is later:

(a) One hundred eighty days after the service upon the person of the transcript and circuit court case record requested under s. 809.30 (2) (e) .

(b) Sixty days after the entry of the order determining a postconviction or postdisposition motion.

(3)   Decision on no-merit report. In the event that the court of appeals determines that further appellate proceedings would be frivolous and without any arguable merit, the court of appeals shall affirm the judgment of conviction or final adjudication and the denial of any postconviction or postdisposition motion and relieve the attorney of further responsibility in the case. The attorney shall advise the person of the right to file a petition for review to the supreme court under s. 809.62 .

(4)   No-merit petition for review.

(a) Petition and supplemental petition. If a fully briefed appeal is taken to the court of appeals and the attorney is of the opinion that a petition for review in the supreme court under s. 809.62 would be frivolous and without any arguable merit, the attorney shall advise the person of the reasons for this opinion and that the person has the right to file a petition for review. If requested by the person, the attorney shall file a petition satisfying the requirements of s. 809.62 (2) (d) and (f) , and the person shall file a supplemental petition satisfying the requirements of s. 809.62 (2) (a) , (b) , (c) , and (e) .

(b) Time limit. Except as provided in sub. (5) and s. 808.10 , the petition and supplemental petition shall both be filed within 30 days after the date of the decision or order of the court of appeals.

(c) Responses time limit. Except as provided in sub. (5) , an opposing party may file a response to the petition and supplemental petition as provided in s. 809.62 (3) within 14 days after the service of the supplemental petition.

(5)   No-merit petition for review; effect of motion for reconsideration.

(a) Petition. If a motion for reconsideration has been timely filed in the court of appeals under s. 809.24 (1) , no party may file a petition or a supplemental petition in the supreme court until after the court of appeals issues an order denying the motion for reconsideration or an amended decision.

(b) Supplemental petition. If a motion for reconsideration in the court of appeals under s. 809.24 (1) is denied and a petition for review was filed before the motion for reconsideration was filed, and if the time for filing a supplemental petition under this subsection had not expired when the motion for reconsideration was filed, the supplemental petition may be filed within 14 days after the filing of the order denying the motion for reconsideration or within the time remaining to file the supplemental petition at the time that the motion for reconsideration was filed, whichever is greater.

(c) Notice affirming, withdrawing, or amending pending petition or supplemental petition. If the court of appeals files an amended decision in response to the motion for reconsideration under s. 809.24 (1) , any party who filed a petition for review or a supplemental petition for review under this section prior to the filing of the motion for reconsideration must file with the clerk of the supreme court a notice affirming the pending petition or supplemental petition, a notice withdrawing the pending petition or supplemental petition, or an amendment to the pending petition or supplemental petition within 14 days after the date of the filing of the court of appeals' amended decision.

(d) Responses. If a motion for reconsideration is denied and a petition for review or a supplemental petition had been filed before the motion for reconsideration was filed, and if the time for filing a response to the petition or supplemental petition had not expired when the motion for reconsideration was filed, a response to the petition or the supplemental petition may be filed within 14 days of the order denying the motion for reconsideration. If a supplemental petition is filed under par. (b) , the responding party may file a response to the supplemental petition within 14 days after service of the supplemental petition. After the petitioning party files the notice affirming or withdrawing the pending petition or supplemental petition or an amendment to the pending petition or supplemental petition under par. (c) , the responding party must file a response to the notice or amendment within 14 days after service of the notice or amendment. The response to the notice or amendment may be an affirmation of the responding party's earlier response or a new response.

Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); 1981 c. 390 s. 252 ; 1983 a. 192 ; Sup. Ct. Order, 123 Wis. 2d xix (1985); 1987 a. 403 s. 256 ; Sup. Ct. Order No. 00-02 , 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 02-01 , 2002 WI 120, 255 Wis. 2d xiii; Sup. Ct. Order No. 04-08 , 2008 WI 108, filed 7-30-08, eff. 1-1-09; Sup. Ct. Order No. 08-15 and Sup. Ct. Order No. 08-18 , 2009 WI 4, 311 Wis. 2d xxix; 2009 a. 25 .

Note

The correct cross-reference is shown in brackets. Corrective legislation is pending. Microsoft Windows NT 6.1.7601 Service Pack 1 Judicial Council Committee's Note, 1981: Subs. (3) and (4) are amended to refer properly to the petition for supreme court review of decisions of the court of appeals. Microsoft Windows NT 6.1.7601 Service Pack 1 Sub. (4) is amended to reflect the amendments to Rule 809.62 regulating the form, contents and length of a petition for review. If requested by the defendant, the attorney shall file with the supreme court a petition for review containing the statement of the case and the appendix required by Rule 809.62 (2) (d) and (f), as the attorney is in the best position to formulate the statement of the case and to provide the documents required for the appendix. The defendant shall file a supplement containing the statement of the issues presented for review, the table of contents, the statement of the criteria relied upon for a review and the argument amplifying the reasons relied on to support the petition as required by Rule 809.62 (2) (a), (b), (c) and (e). The rule does not prohibit the defendant from including a supplement to the statement of the case provided by the attorney. Microsoft Windows NT 6.1.7601 Service Pack 1 The rule requires that both the petition and supplemental petition be filed within 30 days of the date of the decision of the court of appeals. As with all petitions for review, the opposing party may file a response to the petition and supplemental petition within 10 days. The amendment provides that the 10 days begins to run from the service of the supplemental petition. [Re Order effective Jan. 1, 1982] Microsoft Windows NT 6.1.7601 Service Pack 1 Judicial Council Note, 2001: ?Titles and subtitles were added. Subsection (1) was subdivided into paragraphs (1) (a) through (g). Microsoft Windows NT 6.1.7601 Service Pack 1 Subsection (1) (a) was amended to specify that the no-merit procedure applies only to direct appeals and that no-merit reports should be filed only when the defendant requests submission of a no-merit report or does not consent to closing the file without further representation by the appointed attorney. Microsoft Windows NT 6.1.7601 Service Pack 1 Subsection (1) (b) creates new counseling and notification requirements for appointed attorneys. Before filing a no-merit report, the appointed attorney must discuss each identified issue with the defendant and explain why the issue lacks arguable merit. The attorney must inform the defendant of the defendant's options: file a no-merit report, close the file without filing an appeal or a no-merit report, or file an appeal without the assistance of appointed counsel. The attorney must inform the defendant that a no-merit report will be filed if the defendant requests submission of a no-merit report or if the defendant does not consent to closing the file without further representation by the appointed attorney. The attorney must inform the defendant that, if a no-merit report is submitted, the attorney will furnish copies of the transcript and circuit court case record to the defendant upon request. The attorney must notify the defendant that, if a no-merit report will not be submitted, the attorney will forward the attorney's copies of the transcript and circuit court case record to the defendant upon request. The attorney must also advise the defendant of the no-merit procedures set forth in this section, including the defendant's right to file a response to the attorney's no-merit report, and the attorney's right to file a supplemental no-merit report and affidavit containing facts outside the record, possibly including confidential information, to rebut allegations made in the defendant's response to the no-merit report. Microsoft Windows NT 6.1.7601 Service Pack 1 Subsection (1) (c) creates a new certification rule that requires the appointed attorney to certify that the attorney has complied with the counseling and notification requirements of sub. (1) (b). Microsoft Windows NT 6.1.7601 Service Pack 1 Subsection (1) (d) contains the no-merit report service rule from former sub. (1) (a) and creates a new transcript and circuit court case record service rule. The attorney must serve a copy of the no-merit report on the defendant. If the defendant requests a copy of the transcript and circuit court case record, the attorney must forward the copies within 14 days after receipt of the defendant's request. The attorney must file a statement in the court of appeals that service has been made on the defendant. Microsoft Windows NT 6.1.7601 Service Pack 1 Subsection (1) (e) contains the response to the no-merit report rule from former sub. (1) (a). Subsection (1) (e) also creates a new rule that requires the clerk of the court of appeals to send a copy of the defendant's response to the no-merit report, within 5 days of the filing of the response, to the attorney who filed the no-merit report. Microsoft Windows NT 6.1.7601 Service Pack 1 Subsection (1) (f) was created to allow the attorney to reply to the defendant's response to a no-merit report. The rule allows the attorney to file a supplemental no-merit report and affidavit(s) disclosing information that is outside the record and relevant to the attorney's no-merit determination without violating confidentiality rules. The supplemental report and affidavit procedure is in accordance with SCR 20:1.6 (c) (1) , which allows disclosures of otherwise confidential communications “ to rectify the consequences of a client's criminal or fraudulent act in the furtherance of which the lawyer's services had been used;" SCR 20:1.6 (c) (2) , which allows disclosures “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client ... or to respond to allegations in any proceeding concerning the lawyer's representation of the client;" and SCR 20:3.3 , which requires candor toward the tribunal. Microsoft Windows NT 6.1.7601 Service Pack 1 Subsection (1) (g) creates a new rule that requires fact-finding upon a remand to the circuit court if the defendant's response to the no-merit report and the attorney's supplemental no-merit report and affidavit allege facts outside the record; and if the facts alleged by the defendant, if true, would make resolution of the appeal under sub. (3) inappropriate. Microsoft Windows NT 6.1.7601 Service Pack 1 The second sentence in sub. (2) requires the attorney to state, in the no-merit notice of appeal, of the time limit for filing the no-merit report and the calculation used to determine that time limit. The fourth sentence in sub. (2) requires the attorney to file a statement on transcript with the clerk, but exempts counsel from serving a transcript on other parties. The fifth sentence in sub. (2) requires counsel to serve copies of all other papers on the state. Microsoft Windows NT 6.1.7601 Service Pack 1 Subsection (2) (a) establishes the time limits if a no-merit report is not preceded by a postconviction motion. The cross-reference was changed from s. 809.30 (2) (g) to (e) because only the original transcript and circuit court case record request triggers the 180-day time limit. Microsoft Windows NT 6.1.7601 Service Pack 1 Subsection (2) (b) establishes the time limits if a no-merit report follows a postconviction motion. Microsoft Windows NT 6.1.7601 Service Pack 1 The 10-day time limit in sub. (4) was changed to 14 days. Please see the comment to s. 808.07. [Re Order No. 00-02 effective July 1, 2001] Microsoft Windows NT 6.1.7601 Service Pack 1 Judicial Council Note, 2002: When a no-merit report is filed, s. 809.32 (1) (e) gives the person 30 days after the service of the no-merit report to file a response. The time limit in sub. (1) (d) is amended to adjust the time within which the attorney must send copies of the transcript and circuit court case record because five days should be sufficient time for the attorney to make copies and send them to the person. The amendment is intended to avoid delay that may occur if the person is not served with the record in time to utilize it in preparing a response to the no-merit report. [Re Order No. 02-01 effective January 1, 2003] Microsoft Windows NT 6.1.7601 Service Pack 1 This rule is constitutional although it does not secure an indigent convict the right to counsel in preparing a petition for review. State v. Mosley, 102 Wis. 2d 636 , 307 N.W.2d 200 (1981). Microsoft Windows NT 6.1.7601 Service Pack 1 The “no-merit brief" requirement under sub. (1) does not deny the right to counsel. State ex rel. McCoy v. Appeals Ct., 137 Wis. 2d 90 , 403 N.W.2d 449 (1987). Microsoft Windows NT 6.1.7601 Service Pack 1 Appellate counsel's closing of a file because of no merit, without the defendant knowing of the right to disagree and compel a no merit report, is ineffective assistance of counsel. A defendant must be informed of the right to appeal and to a no merit report, but need not be informed orally. State ex rel. Flores v. State, 183 Wis. 2d 587 , 516 N.W.2d 362 (1994). Microsoft Windows NT 6.1.7601 Service Pack 1 The no merit appeal procedure does not apply to appeals regarding terminations of parental rights under s. 809.107. Gloria A. v. State, 195 Wis. 2d 268 , 536 N.W.2d 396 (Ct. App. 1995), 95-0315 . Microsoft Windows NT 6.1.7601 Service Pack 1 Together, sub. (4) and s. 977.05 (4) (j) create a statutory, but not constitutional, right to counsel in petitions for review, provided counsel does not determine the appeal to be without merit. If counsel fails to timely file a petition for review, the defendant may petition for a writ of habeas corpus and the supreme court has the power to allow late filing. Schmelzer v. Murphy, 201 Wis. 2d 246 , 548 N.W.2d 45 (1996), 95-1096 . Microsoft Windows NT 6.1.7601 Service Pack 1 When a defendant's postconviction issues have been addressed by the no merit procedure under this section, the defendant may not again raise those issues or other issues that could have been raised in a previous postconviction motion under s. 974.06, absent the defendant demonstrating a sufficient reason for failing to raise those issues previously. State v. Tillman, 2005 WI App 71 , 281 Wis. 2d 157 , 696 N.W.2d 574 , 04-0966 . Microsoft Windows NT 6.1.7601 Service Pack 1 A convicted defendant could not be faulted for his reliance on his appellate counsel's assertion in the no-merit report that there were no issues of arguable merit when there was a potential appellate issue that was also not identified by appellate court review. In that case the defendant had shown a sufficient reason for failing to raise the issue in a response to the no-merit report and was not procedurally barred from raising the issue of a sentence being illegally increased. State v. Fortier, 2006 WI App 11 , 289 Wis. 2d 179 , 709 N.W.2d 893 , 04-3189 . Microsoft Windows NT 6.1.7601 Service Pack 1 A defendant's constitutional right to effective representation for the purpose of exercising the right to directly appeal a conviction did not require postconviction counsel to offer the defendant the option of a “partial no-merit" report on any potential issues remaining after the defendant declined for strategic reasons to pursue an issue having arguable merit. The U.S. Constitution requires only that “an indigent's appeal will be resolved in a way that is related to the merit of that appeal." Ford v. Holm, 2006 WI App 176 , 296 Wis. 2d 119 , 722 N.W. 2d 609 , 02-1828 . Microsoft Windows NT 6.1.7601 Service Pack 1 This section comports with constitutional requirements. McCoy v. Court of Appeals, 486 U.S. 429 (1988). Microsoft Windows NT 6.1.7601 Service Pack 1 A defendant is not required to file a response to the no-merit report, but the fact that a defendant does not file a response to a no-merit report is not, by itself, a sufficient reason to permit the defendant to raise new claims under s. 974.06. Defendants must show a sufficient reason for failing to raise an issue in a response to a no-merit report because the court will have performed an examination of the record and determined any issues noted or any issues that are apparent to be without arguable merit. State v. Allen, 2010 WI 89 , 328 Wis. 2d 1 , 786 N.W.2d 124 , 07-0795 . Microsoft Windows NT 6.1.7601 Service Pack 1 A defendant gets review of issues not raised only if the court of appeals follows the no-merit protocol. If the no-merit procedure was followed, then it is irrelevant whether the defendant raised his or her claims. He or she got review of those claims from the court of appeals and is barred from raising them again. If it was not followed, it is similarly irrelevant whether the claims were raised. The failure to raise them may or may not have contributed to the court of appeals' failure to identify issues of arguable merit, but the court of appeals and appellate counsel should have found them and the defendant may not be barred from bringing a motion under s. 974.06 if the no-merit procedure was not followed. State v. Allen, 2010 WI 89 , 328 Wis. 2d 1 , 786 N.W.2d 124 , 07-0795 . Microsoft Windows NT 6.1.7601 Service Pack 1 If the court of appeals fails to discuss an issue of actual or arguable merit, the defendant has the opportunity to file: 1) a motion for reconsideration of the decision under sub. (1); 2) a petition for review with the supreme court; or 3) an immediate s. 974.06 motion, identifying any issue of arguable merit that was overlooked and, in the latter instance, explaining why nothing was said in a response to the no-merit report. Delay in these circumstances can seldom be justified. Failure of a defendant to respond to both a no-merit report and the decision on the no-merit report firms up the case for forfeiture of any issue that could have been raised. State v. Allen, 2010 WI 89 , 328 Wis. 2d 1 , 786 N.W.2d 124 , 07-0795 . Microsoft Windows NT 6.1.7601 Service Pack 1