Wisconsin Court of Appeals is forum for ineffective claim.

• Author: Ziemer, David

Byline: David Ziemer

An Aug. 7 opinion from the Wisconsin Court of Appeals offers guidance in the confusing realm of ineffective assistance of appellate counsel claims.

In so doing, the court reaffirmed that a habeas corpus petition in that court may be an appropriate vehicle for raising such a claim in some cases.

Jarrad T. Panama pleaded no-contest pursuant to a plea agreement. The agreement provided, There are no agreements as to sentencing but the State will be requesting prison left to the court's discretion.

At sentencing, however, the prosecutor asked for a 10-year prison sentence, which the circuit court imposed. Panama's trial attorney did not object to the recommendation as a breach of the plea agreement.

Appellate counsel then filed a no-merit report that did not address whether the prosecutor violated the agreement. The Court of Appeals accepted the no-merit report, without addressing the issue, and summarily affirmed the conviction.

Appellate counsel then became aware of the possibility that the agreement was breached by the prosecutor, and sought relief in the Court of Appeals, which construed the request as a habeas corpus petition.

The court directed the parties to brief whether it had authority to grant the relief sought, and, in a per curiam opinion, concluded that it did.

The court began with a review of authority it acknowledged was inconsistent.

In State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992), the Wisconsin Supreme Court held that a habeas corpus petition filed in the Court of Appeals is the proper vehicle for raising a claim of ineffective assistance of appellate counsel (a Knight petition).

However, in State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 556 N.W.2d 136 (Ct.App.1996), the Court of Appeals held that a Knight petition to the Court of Appeals was not the appropriate procedure to challenge appellate counsel's failure to raise a claim that trial counsel was ineffective, where the issue had not first been preserved by a postconviction motion in the trial court.

Then, in State v. Tillman, 2005 WI App 71, 281 Wis.2d 157, 696 N.W.2d 574, the Court of Appeals held that a prior no-merit appeal may bar a subsequent sec. 974.06 proceeding, provided the no-merit procedures were followed and the court has a sufficient degree of confidence in the prior proceeding to warrant application of the bar.

Finally, in State v. Fortier, 2006 WI App 11, 289 Wis.2d 179, 709 N.W.2d 893, the court held that a defendant...