Wisconsin Court of Appeals is forum for ineffective claim.

• Date: 18 August 2008
• 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.

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