No.
94-1544-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v. ERRATA SHEET
JESSIE L. REDMOND,
Defendant-Appellant.
|
Marilyn
L. Graves Clerk
of Court of Appeals 231
East, State Capitol Madison,
WI 53702 |
Peg
Carlson Chief
Staff Attorney 119
Martin Luther King Blvd. Madison,
WI 53703 |
|
Court
of Appeals-District I 633
West Wisconsin Avenue Milwaukee,
WI 53203 |
Court
of Appeals-District II 2727
N. Grandview Blvd. Waukesha,
WI 53188-1672 |
|
Court
of Appeals-District III 740
Third Street Wausau,
WI 54403-5784 |
Court
of Appeals-District IV 119
Martin Luther King Blvd. Madison,
WI 53703 |
|
Jennifer
Krapf Administrative
Assistant 119
Martin Luther King Blvd. Madison,
WI 53703 |
Hon.
Dennis J. Flynn Racine
County Cthse. 730
Wisconsin Avenue Racine,
WI 53430 |
|
Robert
S. Flancher District
Attorney 730
Wisconsin Avenue Racine,
WI 53403 |
Diane
M. Nicks Asst.
Attorney General P.O.
Box 7857 Madison,
WI 53707-7857 |
|
Jessie
L. Redmond #217118 Columbia
Correctional Inst. P.O.
Box 900 Portage,
WI 53901-0900 |
|
PLEASE TAKE NOTICE that
the attached opinion is to be substituted for the opinion in the
above-captioned case which was released on June 12, 1996.
Dated this 19th day of December, 2006.
|
COURT OF APPEALS DECISION DATED AND RELEASED June 12, 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. 94-1544-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JESSIE
L. REDMOND,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Racine County:
DENNIS J. FLYNN, Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
SNYDER, J. Jessie
L. Redmond appeals from the denial of his pro se postconviction motion. In the underlying case, Redmond was
convicted of two counts of second-degree sexual assault and one count of
delivery of a controlled substance.
Following that conviction and with the assistance of counsel, Redmond
filed a timely notice of intent to pursue postconviction relief. After the trial court denied Redmond's
postconviction motion, counsel for Redmond filed a notice of appeal.
Two appeals are
currently pending from that filing.
Appeal no. 94‑0741‑CR was taken from the judgment of
conviction and an initial order denying a postconviction motion. In January 1995, we remanded this matter to
the trial court for additional postconviction proceedings on a claim of
ineffective assistance of trial counsel.
Appeal no. 95‑0830‑CR is Redmond's appeal from the trial
court order rejecting that claim. These
two appeals were consolidated. See
Rule 809.10(3), Stats.
Our disposition of the instant case (appeal no. 94‑1544‑CR)
has no bearing on the disposition of the consolidated appeals.
Eight days after
Redmond's counsel filed the notice of appeal, Redmond, acting pro se, filed a
document with the trial court that he termed a “Motion to Supplement
Postconviction Motion.”[1] This motion was dismissed by the trial court
without addressing the merits, on the grounds that the trial court lacked
jurisdiction. The trial court concluded
that § 974.06(4), Stats.,
precludes successive postconviction motions raising claims that could have been
raised on direct appeal, unless the defendant can show a sufficient reason for
the failure to bring the claim in the previous postconviction procedure. It is from this order denying relief that
Redmond now appeals pro se.
We do not reach the merits
of Redmond's motion to supplement. We
conclude that the trial court's dismissal was proper as it no longer had
jurisdiction to hear further postconviction motions during the pendency of an
appeal. However, we reach this
conclusion on two bases not considered by the trial court. We conclude that the rules of appellate
procedure require that a defendant choose whether to proceed with the
assistance of counsel or proceed pro se.
If a defendant elects to be represented by counsel, that precludes simultaneous
pro se activity.
As a separate basis to
affirm, we conclude that the filing of a postconviction motion brought under §
974.06, Stats. (postconviction
procedure after the time limits of § 974.02, Stats., have expired) is not permitted until the conclusion
of all proceedings related to the filing of a § 974.02 postconviction
motion and any subsequent appeal. We
therefore affirm the trial court's dismissal of Redmond's pro se postconviction
motion.
Standard of Review
Both trial court and
appellate court jurisdiction are regulated by statute. State v. Neutz, 73 Wis.2d 520,
523, 243 N.W.2d 506, 508 (1976). This
case involves interpreting the statutes regarding postconviction and appellate
procedures. Statutory interpretation is
a question of law which this court reviews de novo. Rhonda R.D. v. Franklin R.D., 191 Wis.2d 680, 703,
530 N.W.2d 34, 43 (Ct. App. 1995).
Section 974.02, Stats.
Postconviction Relief
We begin with a
description of the proper procedure to be followed by a defendant who seeks
postconviction relief and subsequently appeals the denial of the requested
relief. We note at the outset that with
the assistance of counsel, Redmond has complied with this procedure in
consolidated appeal nos. 94-0741-CR and 95‑0830-CR.
The initial means of
seeking postconviction relief in a criminal case is outlined in § 974.02, Stats., and is through the timely
filing of a motion for postconviction relief.
The applicable statute provides in relevant part:
Appeals and postconviction relief in
criminal cases. (1) A
motion for postconviction relief other than under s. 974.06 by the
defendant in a criminal case shall be made in the time and manner provided in
ss. 809.30 and 809.40. An appeal by the
defendant in a criminal case from a judgment of conviction or from an order
denying a postconviction motion or from both shall be taken in the time and
manner provided in ss. 808.04(3), 809.30 and 809.40.
Section
974.02(1). If the trial court denies
the motion, the defendant may then file a notice of appeal.[2] This was the procedure followed by Redmond's
counsel in appeal nos. 94-0741-CR and 95-0830-CR.
If a defendant files a
postconviction motion pursuant to § 974.02, Stats.,
that procedure is governed by §§ 809.30 and 809.40, Stats.[3] Section 809.30 provides in pertinent part:
(2) Appeal or
postconviction motion by defendant.
(a) A defendant seeking postconviction relief in a felony case shall
comply with this section ....
....
(b) Within 20 days of the date of sentencing, the defendant shall file
... a notice of intent to pursue postconviction relief. The notice shall include the following:
....
5. Whether the defendant requests the state public defender to appoint
counsel for purposes of postconviction relief.
6. Whether a defendant who does not
request the state public defender to appoint counsel will represent himself or
herself or will be represented by retained counsel. [Emphasis added.]
The
procedure for appeals requires that a defendant make an election to proceed
with a state public defender, to retain counsel or to undertake the appeal pro
se. In Redmond's case, he elected to
proceed with the assistance of counsel.
Subsequent to that
decision, Redmond has attempted to advance “supplemental” issues for
consideration by filing a pro se motion for postconviction relief with the
trial court after appellate counsel filed a notice of appeal. However, the statute plainly contemplates a
defendant proceeding either with counsel or pro se. There is no allowance in the statute for hybrid representation.[4]
The supreme court
recognized the shortcomings of hybrid representation when it held:
Rejecting
a constitutional right to hybrid representation promotes orderly postconviction
relief proceedings for several reasons.
First, the focus of an appeal is primarily on the law. A defendant is not likely to have the same
understanding of the law as an attorney does.
Second, the arguments raised in a pro se brief may contradict and undermine
the issues advanced in counsel's brief.
Third, the consideration of every argument that a defendant chooses to
raise, in addition to those an attorney submits, could strain judicial
resources. Finally, a defendant
represented by counsel has alternative means of advancing issues a court should
consider. The defendant may terminate
appellate counsel's representation and proceed pro se, or the defendant may
allow postconviction relief to continue based on counsel's brief and then seek
relief on the grounds of ineffective assistance of appellate counsel.
State
v. Debra A.E., 188 Wis.2d 111, 138, 523 N.W.2d 727, 737 (1994).
The Rules of
Professional Conduct for attorneys provide further support for this
position. Supreme Court Rule 20:1.2
requires that “[a] lawyer shall abide by a client's decisions concerning the
objectives of representation ... and shall consult with the client as to the
means by which they are to be pursued.”
While an attorney is not required to raise every nonfrivolous issue
suggested by a client, Jones v. Barnes, 463 U.S. 745, 754 (1983),
implicit in the Rules of Professional Conduct is a requirement to involve a
client in any matter relating to his or her representation. By engaging the client, an attorney may
forestall a client's perceived need to pursue “overlooked” issues through pro
se representation.
As outlined by the
supreme court, if Redmond is dissatisfied with his appellate counsel, he is not
without a remedy. He can dismiss his
appointed counsel and proceed pro se.[5] Furthermore, if he wants to assert additional
grounds for relief that have not been addressed through the original
postconviction motion, he can petition this court to remand to the trial court
for consideration of those specific issues.
See § 808.075(5), Stats. That has already been done in Redmond's case
and further postconviction motions have been heard.
We conclude that Redmond
is statutorily barred from proceeding pro se during the pendency of an appeal
in which he is represented by counsel.
At the outset, a defendant must make a choice of whether to proceed with
counsel or pro se, and while a defendant may later discharge appointed counsel,
at no time may a defendant pursue both avenues simultaneously.
Jurisdiction
The other basis for the
denial of Redmond's pro se motion is also procedural. Redmond's initial postconviction motions were brought pursuant to
§ 974.02, Stats., and the
subsequent appeal was under § 809.30, Stats. Accordingly, the appeal was governed by §
808.075, Stats., which delineates
permitted court actions pending appeal.
Subsection (2) provides:
In a
case appealed under s. 809.30, the circuit court retains the power to act on
all issues until the notice of appeal has been filed with the clerk of the
trial court. Thereafter, the circuit
court may act only as provided in subs. (1) and (4).
Although the list of
permitted trial court actions is extensive, it does not include the ability to
hear further postconviction motions, whether presented through counsel or pro
se. Subsections (5) and (6) of this
same statute are instructive. They
provide:
(5) Notwithstanding the limitations of this section, any
party may petition the appellate court for remand to the circuit court for
action upon specific issues.
(6) In addition to sub. (5), the
appellate court may remand the record to the circuit court for additional
proceedings while the appeal is pending.
The
statute provides for remand to the trial court on a party's motion or for the
court of appeals to remand on its own motion.
Subsections (5) and (6) address the only procedure applicable if further
proceedings in the trial court are required.[6] This statute does not allow for the hearing
of further postconviction motions in the trial court once a notice of appeal
has been filed.
In response, Redmond
argues that “the trial court had discretionary jurisdiction to hear [his]
Pro-Se motion.” He suggests that because the time limits for a § 974.02, Stats., motion had expired and because
the trial court correctly characterized his pro se motion as one brought under
§ 974.06, Stats., it was governed
by the procedures of § 974.06 and not by the procedures outlined in
§ 808.075, Stats. While Redmond correctly characterizes the
trial court's determination that his “Motion to Supplement Postconviction
Motion” was brought pursuant to § 974.06 and that his motion “was proceeding
under the standards and procedures of Sec. 974.06, Stats.,” this does not
negate the trial court's dismissal of the motion.
Section 974.06, Stats., states in pertinent part:
(1) After
the time for appeal or postconviction remedy provided in s. 974.02 has expired,
a prisoner in custody ... may move the court which imposed the sentence to
vacate, set aside or correct the sentence.
[Emphasis added.]
At
the time that Redmond was petitioning the trial court with his pro se § 974.06,
Stats., motion, he had a pending
appeal in the same case. Since that
appeal had not been resolved, we conclude that the time for appeal had not
expired. Redmond has to allow the
initial appeal to reach its logical conclusion before any postconviction
proceedings can be initiated under § 974.06.[7]
Furthermore, this
conclusion is in accordance with the line of cases which have construed the
purpose of § 974.06, Stats. In State v. Robinson, 177
Wis.2d 46, 501 N.W.2d 831 (Ct. App. 1993), we noted that the purpose behind the
statute is to compel a prisoner to raise all questions available in one
motion. Id. at 52, 501
N.W.2d at 834. This statute does not
create an unlimited right to file successive motions for relief. Id. And as the supreme court noted, “Successive motions and appeals,
which all could have been brought at the same time, run counter to the design
and purpose of [§ 974.06].” State
v. Escalona-Naranjo, 185 Wis.2d 168, 185, 517 N.W.2d 157, 164 (1994).
In sum, we conclude that
once a defendant elects to be represented by counsel in attempts to secure
postconviction relief, he or she is statutorily barred from simultaneously
proceeding pro se during the pendency of the appeal. Additionally, we conclude that the plain language of § 974.06, Stats., precludes a defendant from
bringing a motion for postconviction relief under that statutory section before
the conclusion of any proceedings related to a § 974.02, Stats., motion.
By the Court.—Order
affirmed.
Recommended for
publication in the official reports.
[1] The record in this appeal did not include this document. It was erroneously filed with the record in one of Redmond's consolidated appeals, appeal no. 94-0741-CR. Because the record from that appeal has been filed with this court, we take judicial notice of the misfiled document. See § 902.01(2)(b), Stats.
[2] In limited circumstances a defendant may proceed to appeal directly without first filing a motion for postconviction relief in the trial court. See § 974.02(2), Stats.
[3] Section 809.40, Stats., governs the procedure for appeals from misdemeanor cases or a ch. 48, 51 or 55, Stats., case, none of which are applicable.
[4] We note that in State v. Debra A.E., 188 Wis.2d 111, 523 N.W.2d 727 (1994), the supreme court concluded that a defendant does not have a constitutional right to hybrid representation on appeal or review by the supreme court. Id. at 138, 523 N.W.2d at 737. The court then went on to state that although a defendant represented by counsel does not have a constitutional right to file a pro se brief on appeal when counsel has filed a brief, a court is not precluded from exercising its discretion to accept and consider such a brief. Id. This holding is not determinative of the issue in the instant case where Redmond seeks to raise “supplemental” issues pro se in the trial court during the pendency of an appeal in which he is represented by counsel.
[5] In fact, at one point Redmond stated in correspondence to his attorney that he wished to discharge him. This related to the attorney's representation of Redmond in the consolidated appeals. The attorney then filed a motion for directions with this court. We informed Redmond that if he discharged the public defender assigned to his case and was unable to retain the services of private counsel, he would be required to pursue his appeal pro se. Redmond decided not to pursue the appeal pro se and declined to dismiss his appointed counsel.