PUBLISHED OPINION
Case No.: 94-1544-CR
†Petition to
review filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JESSIE L. REDMOND,
Defendant-Appellant.†
Submitted on Briefs: May 8, 1996
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: June 12, 1996
Opinion Filed: June 12, 1996
Source of APPEAL Appeal
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Racine
(If "Special", JUDGE: DENNIS J. FLYNN
so indicate)
JUDGES: Anderson,
P.J., Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the defendant-appellant, the cause was submitted on the briefs of
Jessie L. Redmond, pro se.
Respondent
ATTORNEYSOn
behalf of the plaintiff-respondent, the cause was submitted on the brief of James
E. Doyle, attorney general, and Diane M. Nicks, assistant attorney
general.
|
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
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 competence to hear further postconviction motions during the pendency of an
appeal. See Mueller v.
Brunn, 105 Wis.2d 171, 177, 313 N.W.2d 790, 793 (1982). 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, retain counsel or 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.
[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 here.
[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.