WI Court of Appeals rules 'Partial no-merit briefs' not required.

• Author: Ziemer, David

Byline: David Ziemer

A defendant has no right to a "partial no-merit brief" when he declines to pursue his only potentially meritorious issues, the Wisconsin Court of Appeals held on Aug. 10.

In 1998, Richard A. Ford was convicted of sexual assault and sentenced to 20 years in prison. Although his appellate counsel thought a motion for plea withdrawal was potentially meritorious, Ford did not want to pursue the motion, because it could expose him to an even longer sentence.

Counsel did not file an appeal or a no-merit brief, although Ford believed he had a meritorious sentencing issue for appeal.

Ford then filed a petition in the court of appeals, claiming ineffective assistance of appellate counsel. The court obtained pro bono counsel to represent Ford, and ultimately held that counsel was not ineffective, in a published decision. Ford v. Holm, 2004 WI App 22, 269 Wis.2d 810, 676 N.W.2d 500.

However, the court remanded the case to circuit court to determine whether Ford knowingly and voluntarily waived his right to appeal or be represented by counsel.

The circuit court found that he knowingly waived his right to appeal the guilty plea issue. Ford again sought a writ of habeas corpus in the court of appeals.

The State conceded error, and on Nov. 17, 2005, the court of appeals held that Ford was entitled to have a no-merit report filed with respect to the sentencing issue. However, after the State Public Defender moved to intervene and requested reconsideration, the court withdrew its opinion.

After reconsidering the issue, the court held that Ford was not entitled to a partial no-merit brief, in a decision by Judge David G. Deininger.

Concluding that "our prior analysis was flawed," the court noted that nothing in Rule 809.32 mandates, or even expressly authorizes, a partial no-merit procedure.

In addition, the court found that a no-merit report is not constitutionally mandated by Anders v. California, 386 U.S. 738 (1967).

The court wrote, "The Supreme Court has explained that the procedure it described in Anders is but an example of a 'prophylactic' procedure that a state may, but is not required to, follow in order to satisfy due process and equal protection concerns when appointed postconviction counsel concludes a given record provides no grounds for postconviction relief (citing Smith v. Robbins, 528 U.S. 259, 265 (2000)."

In Robbins, the Supreme Court upheld California's "Wende procedure," and called it "better than" Wisconsin's, in...