State v. Flores

488 N.W.2d 116, 170 Wis. 2d 272, 1992 Wisc. App. LEXIS 537

• Court: Court of Appeals of Wisconsin
• Decided: July 29, 1992
• Docket: 91-1040-CR
• Status: Published

Opinions

BROWN, J.

Robert Flores appeals a judgment of April 10, 1991, denying his ineffective assistance of appellate counsel claim. At the hearing relating to the judgment, Flores asserted that his counsel withdrew from representing him without his knowledge or consent before the notice of appeal was filed. He claims that, for this reason, there was no timely appeal. The trial court held that Flores had not met his burden of proof regarding this assertion. We hold that the record is inadequate to determine whether Flores knowingly and intelligently abandoned his postconviction remedies. Normally, we would reverse and remand for another hearing. However, our supreme court recently ruled that ineffective assistance of appellate counsel claims are within the province of the court of appeals.² We therefore vacate the trial court's judgment.

Following a no contest plea, Flores was convicted of attempted first-degree murder while armed with a dangerous weapon. After sentencing, he filed a pro se "Motion for Post-Conviction Relief pursuant to sec. 974.06, Stats." In part, he alleged that he was denied effective assistance of appellate counsel, preventing him from timely pursuing a direct appeal. Other allegations in the motion eventually were resolved by this court in State v. Flores, 158 Wis. 2d 636, 462 N.W.2d 899 (Ct. App. 1990). However, we remanded the ineffective assistance of counsel claim to the trial court for what is known as a Machner hearing³ because that court did not address the issue in its original order.

On remand to the trial court, Flores requested that counsel be appointed to represent him at the Machner hearing. The trial court referred the request to the Office of the State Public Defender. That office declined to appoint counsel, explaining that "there is little or no merit" to defendant's claim of ineffective assistance of appellate counsel. The trial court accepted the public defender's opinion that counsel was unnecessary and held that Flores had to proceed pro se at the Machner hearing.

The trial court took testimony at the Machner hearing. The evidence established that, following his conviction, Flores filed a Notice of Intent to Pursue Postconviction Relief and requested appointment of appellate counsel. An assistant state public defender was appointed. She met once with the defendant.

It is unclear from the Machner hearing testimony as to what happened during the meeting between Flores and appointed counsel. Flores testified that his attorney told him "point blank" that there was no "arguable merit" to an appeal and that she wanted to "withdraw."

Appointed counsel testified that she had no recollection of Flores saying he wanted to abandon or waive his right to appeal. She admitted that she had no tape recordings or writings memorializing the conversation. She did, however, make the following statement:

It is my understanding that the law requires that I may not withdraw from a case without my client's consent. However, it is not my practice to have my client sign a formal waiver. I usually go based on our conversation and the notes that I make of that conversation.

On cross-examination, appointed counsel was asked whether she had found any grounds to appeal as a result of her evaluation of Flores' case. She explained that the question required her to reveal what Flores may have said to her, implicating the lawyer-client privilege which Flores would have to waive before she could answer.

The trial court then explained to Flores what the privilege entailed and that he was free to assert the privilege or waive it and let defense counsel answer. Flores asserted the privilege, and the district attorney abandoned all further inquiry into communications between Flores and his appointed counsel. The trial court eventually held that Flores had failed to meet his burden and this appeal ensued.

The first issue is whether Flores should have been afforded counsel at his Machner hearing. The state public defender now concedes that it abused its discretion in declining to appoint counsel for Flores regarding this hearing. The abuse of discretion was based upon an erroneous view of the law. The state public defender offered to appoint counsel in this pending appeal. This court accepted the offer and counsel was appointed. While the state gave reasons in its brief for its belief that Flores waived review of his request for a lawyer to represent him at the Machner hearing, it agreed that Flores "probably should have been given counsel to litigate this claim, and it does not oppose remand for a new evidentiary hearing." Based upon the statements of the state public defender and the attorney general, we determine that a new Machner hearing is necessary because Flores should have had counsel to represent him.

There is a second reason a new Machner hearing is in order. Flores, through his new appellate counsel, argues that the trial court erred by permitting Flores to bar the testimony of his previous appellate lawyer on grounds of lawyer-client privilege. See sec. 905.03, Stats. The public defender, as amicus curiae, and the state agree that the trial court erred. Further, the state said at oral argument that it had no objection to another evidentiary hearing in light of this error.

We agree with the parties that it was error to bar the testimony on grounds of the lawyer-client privilege. We hold that when a defendant charges that his or her attorney has been ineffective, the defendant's lawyer-client privilege is waived to the extent that counsel must answer questions relevant to the charge of ineffective assistance. Section 905.03(4)(c), Stats., specifically states that there is no lawyer-client privilege "[a]s to a communication relevant to an issue of breach of duty by the lawyer to his [or her] client or by the client to his [or her] lawyer." This section pertains here. See I ABA Standards for Criminal Justice, Standard 4-8.6 at 4-117 (2d ed. Supp. 1986) ("by raising the issue, the client draws the true facts into controversy and waives the privilege"). Because a full record was not made due to this error, and because this error prejudiced not only the defendant in attempting to meet his burden, but also the state in eliciting relevant testimony, a new hearing is appropriate.

Normally, we would reverse and remand to the trial court with directions consistent with this opinion. However, our supreme court recently has declared in State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992), that sec. 974.06, Stats., is not the appropriate vehicle for relief for a criminal defendant who asserts that his or her appellate counsel provided ineffective assistance. Knight, 168 Wis. 2d at 512. The supreme court ruled that the correct procedural vehicle is for the defendant to petition for a writ of habeas corpus to the "court that considered the appeal." Id.

While we recognize that this appellate court did not "consider the appeal" because there was no appeal, we nonetheless adopt the procedural framework of Knight for this case in the interest of institutional uniformity. The state indicated at oral argument that it would not object if we construed Flores' sec. 974.06, Stats., motion as a writ of habeas corpus to this court. We do so. Pursuant to Knight, we will appoint a referee by separate order to preside at a Machner hearing.

One major issue, raised by the state, is left to be covered. It is whether this court should adopt a prophylactic rule for all appellate lawyers who are informed by their clients, prior to the deadline for direct appeal, that the client no longer wants to appeal. The state suggests that counsel be required to file a waiver form prior to the deadline for appeal. This waiver form, signed by the defendant, would indicate that the defendant has discussed the merits of the appeal with counsel, no longer wants to pursue a direct appeal, does not request a no merit review, and is relieving counsel of all further responsibility in the appeal. The state explains that it is not proffering this as a requirement of the right to effective assistance of appellate counsel, but as a "consideration for subsequent rulemaking by the appropriate rulemaker."

Presumably, the court, and most probably the appellate court, would then note its approval. The alternative to filing the waiver form would require either litigation or a no merit report by the appointed lawyer.

The state public defender and Flores' newly appointed appellate counsel oppose the suggested rule. The state public defender first observes that clients are given an information form as soon as appointments are made under Rule 809.30, Stats. This information sheet provides each client with an explanation of the right to a no merit report. Thus, the client already is informed of his or her right to a no merit when told by counsel that an appeal would be groundless. To require a form giving clients information about their right to a no merit report would be duplicative.

Second, the state public defender opines that, all too frequently, a client suspicious of appointed lawyers may agree to drop a frivolous appeal, but balk at signing a formal release ("I'm not signing anything.'¹). The state public defender notes that in 1991, out of 978 cases, sixty-five percent were closed without court action. One percent were closed after no merit reports. The state public defender believes that the suggested rule may unnecessarily increase the number of no merits filed.

Third, the public defender argues that, as a practical matter, the new rule would create more problems than it would solve. Convictions arising from plea bargains often result in limited exposure to prison time in return for a guilty plea. When a defendant obtains this benefit, a reversal of the conviction often revives all of the original charges. Exposure to increased sentences upon reconviction is a very real concern. Defendants who are counseled about this risk often agree — knowingly and intelligently — to abandon any challenge to their conviction even though there may be arguable grounds for reversal.

The public defender claims, however, that many of these defendants will not sign a waiver because they want to pursue a motion for sentence reduction. If there are no grounds for sentence reduction, the proposed rule would put the appointed attorney in the following dilemma. The attorney ethically cannot follow the defendant's wishes to bring a motion for sentence reduction because the motion would be frivolous. The attorney cannot appeal the conviction because the client has instructed the attorney not to appeal. The attorney cannot file a no merit report because there are meritorious arguments for reversal of the conviction. Yet, the attorney cannot get the defendant's signed waiver in order to comply with the new rule. The public defender thus argues that the proposed waiver form would satisfy nothing, and the better procedure is for the attorney to privately memorialize the decision made between counsel and client not to pursue postconviction relief. The attorney then can terminate the lawyer-client relationship without court involvement.

In deciding whether to adopt the state's suggested rule, we look to the procedural posture following conviction. Following conviction, a defendant must be informed of his or her appellate rights. The defendant is told, among other things, that if he or she wishes to pursue an appeal, a Notice of Intent to Pursue Postconviction Relief must be filed in the trial court or a Notice of Appeal must be filed directly with this court. In some cases, an attorney does this for a defendant. In other cases, this action is taken by the defendant.

A Notice of Intent to Pursue Postconviction Relief is a statutorily recognized notice setting in motion the machinery and time limits relative to the postconviction/appellate process. See Rule 809.30, Stats. However, the notice is not filed with the court of appeals. Nor are we provided with a copy. Therefore, we have no knowledge that a defendant wants to pursue postconviction relief.

The only circumstances under which we receive such knowledge is if the state or defense should move for an extension of any of the applicable time limits under the statute. Consequently, the trial court is done with the case. As we read the supreme court's decision in Knight, appeals and appellate processes are for the appellate court.

The reason for this discussion is to point out the very real administrative problems in requiring court involvement after the Notice of Intent to Pursue Post-conviction Relief and before the actual appeal process has begun in this court. Taking thé arguments of the public defender into account, and adding to that the lack of institutional involvement by the court of appeals during this interim period, we conclude that the administrative cost of requiring an additional layer of appellate record overcomes any benefit of court involvement. We decline to adopt the rule suggested by the state.

As a result, we suggest that an appellate attorney proceed as follows. When counsel and client meet after the Notice of Intent is filed and the client decides not to pursue an appeal, counsel should memorialize the content of the discussions and the decisional process of the client for the file. If the client does not want to proceed any further and does not desire a no merit report, the attorney may cease representation without involving this court or the trial court. Should a defendant later claim that he or she never wanted to waive the right to appeal and that counsel was ineffective for ceasing representation, that allegation will be resolved on a case-by-case basis. Any memorialization in the attorney's file will serve as evidence.

We vacate the judgment. We will appoint a referee by separate order to hear the Machner proceeding. Flores will be represented by counsel and the lawyer-client privilege will be deemed waived. This court will retain jurisdiction of this writ. After the referee has made the appropriate findings of fact, the record will be returned to this court for an ultimate decision on whether there was ineffective assistance of counsel.

By the Court. — Judgment vacated.

2 State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).

3 State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905, 908 (Ct. App. 1979).

1 A commentator, speaking to the then recent enactment of Rule 809.30, Stats., in its present form, also stated that the filing of the notice of intent commences the appellate process. See Kempinen, The Role of Trial Counsel Under the New Rules of Criminal Appellate Procedure: The Decision to Appeal, 58 Wisconsin Bar Bulletin 19 (1985).