PUBLISHED OPINION
Case No.: 96-2485-W
Complete
Title
of
Case:
STATE OF WISCONSIN ex rel.
AARON S. ROTHERING,
Petitioner,
v.
GARY R. MC CAUGHTRY, Warden,
Waupun Correctional Institution,
Respondent.
Submitted
on Petition:
October 2, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: October 23, 1996
Opinion
Filed: October
23, 1996
Source
of APPEAL Original proceeding for a writ of habeas
corpus.
JUDGES: Anderson,
P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the petitioner, the cause was submitted on the
petition of Aaron S. Rothering of Waupun.
Respondent
ATTORNEYSFor the respondent, the cause was submitted on the
response of James E. Doyle, attorney general, and Diane M. Nicks, assistant
attorney general.
COURT OF
APPEALS DECISION DATED AND
RELEASED October
23, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-2485-W
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN ex rel.
AARON
S. ROTHERING,
Petitioner,
v.
GARY
R. MC CAUGHTRY, WARDEN,
WAUPUN
CORRECTIONAL INSTITUTION,
Respondent.
HABEAS
CORPUS original proceeding. Writ
denied.
Before
Anderson, P.J., Brown and Nettesheim, JJ.
PER
CURIAM. Aaron S. Rothering petitions pro se for a writ of
habeas corpus pursuant to State v. Knight, 168 Wis.2d 509, 522,
484 N.W.2d 540, 545 (1992). Rothering
contends that appellate counsel was constitutionally deficient in failing to
seek withdrawal of his guilty plea.
Upon consideration of the petition and response, we conclude that
Rothering's petition challenges the conduct of postconviction counsel and his
remedy, if any, is with the trial court.
We deny the petition for a writ of habeas corpus.
Rothering
entered a guilty plea to seven counts of criminal conduct. An appeal pursuant to Rule 809.30, Stats., was brought on Rothering's behalf by the attorney who
had also served as trial counsel. The
only issue on appeal was whether the sentence was the result of an erroneous
exercise of discretion. Rothering's
conviction was affirmed by this court. State
v. Rothering, No. 95‑0531‑CR, unpublished summary
order (Wis. Ct. App. Dec. 27, 1995). A
petition for review was denied by the supreme court on March 12, 1996. Rothering has not filed any motion for
relief under § 974.06, Stats.
Rothering's
petition is a mix of claims of ineffective appellate counsel and ineffective
trial counsel.[1] Because he seeks to invoke our jurisdiction
under Knight, we confine ourselves to consideration of whether he
was deprived of the effective assistance of appellate counsel. Rothering complains that appellate counsel
only argued an issue that was "practically frivolous"—whether the
sentence was too harsh. He alleges that
appellate counsel was ineffective for failing to argue the issues Rothering
raises in his petition.
Rothering's
petition argues that he should be allowed to withdraw his guilty plea because
trial counsel was ineffective and the plea was unknowingly entered.[2] Claims of ineffective trial counsel or
whether grounds exist to withdraw a guilty plea cannot be reviewed on appeal
absent a postconviction motion in the trial court.[3] If the issues were raised for the first time
on appeal, we would not address them. See
State v. Waites, 158 Wis.2d 376, 392-93, 462 N.W.2d 206, 213
(1990) (a claim of ineffective assistance of counsel not preserved by raising
it at a postconviction hearing before the trial court is deemed waived); State v. Gove, 148 Wis.2d 936,
941, 437 N.W.2d 218, 220 (1989) (even the claim of a denial of a constitutional
right will be deemed waived unless timely raised in the trial court). Appellate counsel's failure to argue an
issue on appeal which is waived is not ineffective assistance of counsel. Cf. State v. Cummings,
199 Wis.2d 722, 748 n.10, 546 N.W.2d 406, 416 (1996) (an attorney's failure to
pursue a meritless motion does not constitute deficient performance).
The
distinction between appellate counsel and postconviction counsel is the
decisive point here.[4] "[T]here are two principal
manifestations of appellate representation:
(a) the brief and (b) oral argument." Watson v. United States, 536 A.2d 1056, 1057 (D.C.
1987), cert. denied, 486 U.S. 1010 (1988). Because the issues Rothering alleges appellate counsel should
have briefed were waived, neither manifestation of appellate representation was
deficient.
What
Rothering really complains of is the failure of postconviction counsel to bring
a postconviction motion before the trial court to withdraw his plea and raising
the issue of ineffective trial counsel.
The allegedly deficient conduct is not what occurred before this court
but rather what should have occurred before the trial court by a motion filed
by postconviction counsel. We hold that
a Knight petition is not the proper vehicle for seeking redress
of the alleged deficiencies of postconviction counsel.
In
choosing the appellate court as the appropriate forum for addressing
allegations of ineffective assistance of appellate counsel, an admittedly close
call, the supreme court sought to pick the forum where the allegedly
ineffective conduct occurred. See
Knight, 168 Wis.2d at 519, 484 N.W.2d at 544. The court noted that a challenge to the
efficacy of appellate counsel did not directly challenge the trial proceeding
that resulted in conviction and that the appellate court has familiarity with
the case and appellate proceedings. Id.
at 519, 521, 484 N.W.2d at 544, 545.
Those
premises do not hold true when addressing the conduct of postconviction counsel
and issues which were never preserved for appeal. The real relief sought here does not seek a modification of the
appellate mandate but rather attacks the proceedings in the trial court. This court does not have any familiarity
with the claims of ineffective trial counsel and whether the plea should be
withdrawn as they were never raised in this court.
An
additional factor in Knight for choosing the appellate court as
the forum for ineffective assistance of appellate counsel claims was the desire
to avoid the "oblique" use of § 974.06, Stats., by requiring the trial court to vacate and reinstate
a sentence in order to allow a fresh appeal to remedy the consequences of
ineffective assistance of counsel. Knight,
168 Wis.2d at 519, 484 N.W.2d at 544.
The appropriate forum is that one which is able to link the remedy
closely to the scope of the constitutional violation. Id. at 520, 484 N.W.2d at 544.
There
can be no doubt that Rothering's petition for habeas corpus to this court is
merely a vehicle for obtaining a trial court ruling on the underlying issues of
ineffective trial counsel and whether grounds exist to withdraw the guilty plea.[5] These are issues over which this court only
has appellate jurisdiction. If the
claim of ineffective postconviction counsel is first brought to the trial
court, the place where the allegedly deficient conduct occurred, the underlying
issues come before this court in their proper appellate context. This approach keeps the relevant
decisionmaking with the appropriate fact finder.[6]
We
conclude that a claim of ineffective assistance of postconviction counsel
should be raised in the trial court either by a petition for habeas corpus[7]
or a motion under § 974.06, Stats.[8] We recognize that State v.
Escalona-Naranjo, 185 Wis.2d 168, 173, 517 N.W.2d 157, 159 (1994), held
that a defendant could not raise an ineffective assistance of trial counsel
claim in a § 974.06 motion when the issue could have been raised on direct
appeal. The court explained that §
974.06(4)[9]
"requires a sufficient reason to raise a constitutional issue in a
sec. 974.06 motion that could have been raised on direct appeal or in a
sec. 974.02 motion." Escalona-Naranjo,
185 Wis.2d at 185, 517 N.W.2d at 164.
The
court has not yet had much occasion to give an explication of the circumstances
which constitute a "sufficient reason."[10] It may be in some circumstances that
ineffective postconviction counsel constitutes a sufficient reason as to why an
issue which could have been raised on direct appeal was not. In other words, demonstrating to the trial
court a sufficient reason for why issues were not raised on direct appeal
raises the same questions about counsel's conduct which the defendant would
attempt to characterize here as ineffective appellate counsel. It amounts to proof of the same thing. In some cases it may be necessary to
undertake factfinding regarding postconviction discussions between counsel and
the defendant to determine if, for a strategy reason, the defendant waived a
particular issue. That is particularly
true in the circumstances presented in Rothering's petition where trial, postconviction
and appellate counsel was the same attorney.
The trial court can perform the necessary factfinding function and
directly rule on the sufficiency of the reason. On the other hand, we would have to remand to the trial court for
findings on what occurred before the appeal was in this court.
Section
974.06(8), Stats., provides:
A petition for a writ of habeas corpus or an action
seeking that remedy in behalf of a person who is authorized to apply for relief
by motion under this section shall not be entertained if it appears that the
applicant has failed to apply for relief, by motion, to the court which
sentenced the person, or that the court has denied the person relief, unless it
also appears that the remedy by motion is inadequate or ineffective to test the
legality of his or her detention.
Although
in Knight the court found that a petition for habeas corpus was
the remedy for a claim of ineffective appellate counsel, Knight,
168 Wis.2d at 520, 484 N.W.2d at 544, it did not address claims of error not
preserved for appellate review.[11] Knight does not foreclose the
possibility that ineffective postconviction counsel could be a sufficient
reason for permitting an additional motion for postconviction relief under
§ 974.06, Stats., thereby
making the remedy under § 974.06 an adequate and effective remedy for the
alleged errors.
Our
authority on a claim of ineffective assistance of appellate counsel goes only
to those issues argued before this court or preserved in the appellate record
without the necessity of a postconviction motion. This court need not entertain a petition for a writ of habeas
corpus which raises a claim of ineffective postconviction counsel. Section 974.06(8), Stats.
By
the Court.—Writ denied.
[1] Rothering's
first allegation is that "counsel rendered ineffective assistance of
counsel to petitioner at trial and appellate levels," and the first issue
he states is "[w]hether the trial/appellate attorney['s] ... erroneous
advice is ineffective assistance of counsel."
[2] Rothering claims
that trial counsel failed to inform him about the effect his guilty plea would
have in the pending civil lawsuit arising out of his criminal conduct and of all
possible defenses to the criminal charges.
He further asserts that trial counsel gave erroneous advice as to the
amount of time he would serve before being granted parole. He claims that if he had known about
possible defenses and been advised as to the collateral consequences of his
plea, he would have insisted on going to trial.
[3] Section
974.02(2), Stats., provides that
a defendant is not required to file a postconviction motion in the trial court
prior to an appeal "if the grounds are sufficiency of the evidence or
issues previously raised." State
v. Monje, 109 Wis.2d 138, 153-54, 325 N.W.2d 695, 327 N.W.2d 641, 641
(1982) (on motion for reconsideration), teaches that these are the only two
types of issues which may be appealed by filing a notice of appeal without a
postconviction motion under Rule
809.30(2)(h), Stats.
[4] We are aware
that often postconviction counsel and appellate counsel are the same
person. Under Rule 809.30(2), Stats.,
the state public defender appoints counsel "for purposes of postconviction
relief." Although the state public
defender's "appellate" intake office makes the appointment, refers to
counsel as "appellate" counsel, and the attorney usually continues
representation through the filing of briefs on appeal, we are not bound by the
designations used in the appointment of counsel after a conviction.
[5] It has not gone
unnoticed that claims of ineffective assistance of trial counsel and
ineffective assistance of appellate counsel are means to circumvent a
waiver. See State v. Smith,
170 Wis.2d 701, 714 n.5, 490 N.W.2d 40, 46 (Ct. App. 1992), cert. denied,
507 U.S. 1035 (1993).
[6] We acknowledge
that we have the ability to submit the matter to a referee or to the trial
court for inquiry into counsel's conduct or to refer the habeas petition to the
trial court. See State v.
Knight, 168 Wis.2d 509, 521, 484 N.W.2d 540, 545 (1992); see also
State v. Speese, 191 Wis.2d 205, 227, 528 N.W.2d 63, 72 (Ct. App.
1995), rev'd on other grounds, 199 Wis.2d 597, 545 N.W.2d 510
(1996). Here, and in cases where
appellate issues are waived, we decide as a matter of law that appellate
counsel is not deficient for failing to brief waived issues. No factfinding is needed.
[7] Even though § 974.06, Stats., was designed to supplant habeas
corpus, a petition for a writ of habeas corpus may still be appropriate in some
circumstances. Knight,
168 Wis.2d at 520, 484 N.W.2d at 544.
[8] Section
974.06(1), Stats., provides:
After the time for appeal or postconviction remedy
provided in s. 974.02 has expired, a prisoner in custody under sentence of
a court or a person convicted and placed with a volunteers in probation program
under s. 973.11 claiming the right to be released upon the ground that the
sentence was imposed in violation of the U.S. constitution or the constitution
or laws of this state, that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized by law
or is otherwise subject to collateral attack, may move the court which imposed
the sentence to vacate, set aside or correct the sentence.
[9] Section
974.06(4), Stats., provides:
All grounds for relief available to a person under this
section must be raised in his or her original, supplemental or amended
motion. Any ground finally adjudicated
or not so raised, or knowingly, voluntarily and intelligently waived in the
proceeding that resulted in the conviction or sentence or in any other
proceeding the person has taken to secure relief may not be the basis for a
subsequent motion, unless the court finds a ground for relief asserted which for
sufficient reason was not asserted or was inadequately raised in the original,
supplemental or amended motion.
[10] In State
v. Howard, 199 Wis.2d 454, 462, 544 N.W.2d 626, 629 (Ct. App. 1996), we
held that the fact that at the time of his appeal the defendant could not have
foreseen the effect of a later decided precedent constitutes a sufficient
reason for not raising the issue at an earlier date.
[11] In Knight,
the performance alleged to be deficient involved the failure to challenge trial
court rulings that were contained in the record on the underlying appeal and
the failure to file a petition seeking supreme court review. Knight, 168 Wis.2d at 513-14,
484 N.W.2d at 541. It was not the case
there that a postconviction motion was necessary to preserve the alleged errors
which appellate counsel allegedly should have briefed.