Difficulties Arising Out of No-Merit Reports

Under Wisconsin Statute 809.32(1), an attorney representing a criminally convicted client on appeal must file a no-merit report if he or she:

concludes that a direct appeal on behalf of the [client] would be frivolous and without any arguable merit within the meaning of Anders v. California, 386 U.S. 738 (1967), and the [client] requests that a no-merit report be filed or declines to consent to have the attorney close the file without further representation by the attorney.

A no-merit report is essentially as it sounds, a report to the Court of Appeals stating that the client has no arguable case.  Once a no-merit report is filed, the client may choose to respond.  If the client does not respond, or does and the court finds that there are no meritorious claims, the court will affirm the conviction.

This situation, however, brings to light an interesting predicament for convicted individuals.  In State v. Allen, the defendant (Aaron Allen) was convicted of armed robbery and being a felon in possession of a firearm.  328 Wis. 2d 1, 6.  Subsequently, Aaron Allen’s post-conviction/appellate attorney filed a no-merit report, and Aaron Allen did not file a response.  Id.  Seven years later, Aaron Allen filed pro se a Wisconsin Statute § 974.06 motion alleging his post-conviction attorney was ineffective for not bringing an ineffective assistance claim against his trial counsel.  Id. at 7.  The court denied the motion, deciding the issues raised by Aaron Allen had been waived because he did not raise them in response to the no-merit report, thus he was barred under Escalona-Naranjo, 185 Wis. 2d 168 (Wis. 1994).  328 Wis. 2d at 8.

The premise of the court’s decision is sound – Aaron Allen did not raise an issue when he should have, thus he is barred from raising it in the future.  The court has an interest in finality, and not having to hear claims that could have been brought in a previous appeal.  However, the practical result is very unfavorable to the defendant.

To begin with, a convicted individual whose own attorney is telling him or her that there are no legitimate appellate claims to be raised is sure to be disheartened.  In addition, it cannot be said that the attorney is really representing the convicted individual at that point – quite the opposite; the attorney is telling the court that the “client” has no claims.  Despite both of these factors, the court holds that if the convicted individual wants to assert his or her claim, it must be done immediately, in response to the “counsel’s” no-merit report.  The convicted individual must identify issues that could be appealed right away and raise them alone.  The convicted individual must then prepare a brief for the appellate court – a brief which will be looked at after the court has already seen the no-merit report prepared by an attorney.

In sum, a defendant whose attorney files a no-merit report is faced with an uphill battle.  The defendant must spot issues to raise and prepare a brief on them alone, after being told that he or she has no issues to raise.  The court does have a strong interest in finality and efficiency, but those interests need to be balanced with the defendant’s rights.

This Post Has 4 Comments

  1. Andrew Golden

    Funny story: I know a lot of attorneys who swear by no-merit reports in their appellate cases, particularly their SPD cases, because it allows us to do more work on the file, presumably both to double-check our conclusion that no issues exist and (though I doubt many would admit it) to bill more hours on the file. Yet when I went to a training session for SPD appellate appointments last year, I was most struck by the First Assistant in the Madison office presenting and saying pretty sternly that we should absolutely not file no-merit reports on our cases unless the client specifically demands it because doing that takes away some of the client’s future rights. I wish now I had asked him to be more specific (it was a time crunch kind of situation at that moment), but I imagine that the dilemma you allude to above is the reason why he said that. Whether we like it or not, at least if we decline to file a no-merit report the client can still claim later on that we screwed up by not appealing things; if we file that report, the client can’t later realize the issue and raise it.

    I would, however, challenge one part of your post, and that’s the idea that telling a client that he or she has no claims isn’t “really representing the client.” It would be wonderful if every appeal resulted in the appellate attorney finding some arcane case law that vindicates the client, but the truth of the matter is that the majority of the cases I’ve gotten on appeal end up being fairly unassailable. Sure, there may be an error on the Judgment of Conviction that needs fixing or the occasional judge going off the deep end in a sentencing argument, but by and large judges do make a conscious effort to hand out fair sentences, or at least to avoid going so far overboard that a post-conviction motion is worth it. And, really, many defendants know that; they just want to have an extra set of eyes look at the file, get a second opinion, make absolutely sure that nothing got screwed up. And when the time comes when I have to say to my clients, “Hey, I don’t believe there’s anything here to appeal” most of them accept that and thank me for taking the time to look. So I don’t think “no issues” equals “lack of representation” unless the appellate attorney just skims the file and draws the conclusion without really doing any work.

  2. Tom Kamenick

    It’s been awhile since I looked at this (I clerked on the court that decided Allen), but if I recall correctly, the no merit report has to point out everything the attorney can think of that could remotely form the basis for an appeal, and then explain why such an argument would be meritless. So I don’t think it’s fair to say the “convicted individual must identify issues that could be appealed right away and raise them alone” — the individual does have a professional opinion of what might, at least, form the basis for appeal.

    It may not be a perfect solution for the dilemma of the defense attorney faced with having to file frivolous arguments, but honestly a defendant who is already convicted is SUPPOSED to face an uphill battle challenging his conviction — the presumption of no guilt no longer applies.

  3. Joseph Ehmann

    This is a response to Mr. Golden’s stated recollection of an SPD-sponsored training and his belief that the Madison First Assistant said “sternly that we should not absolutely not file no-merit reports on our cases unless the client specifically demands it because doing that takes away some of the client’s future rights.” I am the Madison Appellate First Assistant. I did not say this and in fact what I have been sternly preaching is just the opposite.

    Years ago some attorneys subscribed to the practice Mr. Golden posits and some actively discouraged clients from selecting the no-merit option. I never did. But regardless, the option to engage in that practice changed when the no-merit rules were revised (I believe in 2001), making filing a no-merit report the default action. Unless a client expressly consents to close the case or to discharge the appointed attorney, the attorney MUST file a no-merit report (assuming the requesite counseling has occurred).

    A more problematic situation occurs when the client declines to consent to close the case or waive the right to counsel and then specifically orders the attorney to not file a no-merit report. I believe an attorney could still file the report but the more prudent and client-centered action at that point would be to file a motion to withdraw so that the court could advise the client of his or her options and possibly find that the client, by declining the no-merit option, is by that action waiving his or her right to counsel for appeal.

    In any event, I hope this sets the record straight.

    JNE

  4. Andrew Golden

    I certainly apologize for my mistaken recollection, Mr. Ehmann, and did not intend to misstate your point. Thank you for the clarification!

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