A basic guide to criminal appeals in Wisconsin.
If a person is unhappy with the results of his/her criminal litigation, it is important to consider pursuing an appeal. The basic steps involve preserving your right to pursue an appeal, determining which issues have arguable merit for an appeal and the correct procedure for pursuing those issues
Preserving your right to an appeal.To preserve your right to pursue an appeal, it is essential for your counsel to file a notice of intent to pursue postconviction relief with the trial court within 20 days after the sentence is handed down. This means that you must clearly inform your attorney that you wish to pursue an appeal. A copy of the notice will be set to the State Public Defender and that office will determine if you qualify for an attorney through their office. You can also retain an attorney privately. The State Public Defender or your privately-retained counsel will then obtain a copy of the trial court case record and the transcripts and the trial counsel's file. Before you retain an attorney privately, ask the attorney how much experience he/she has in the field of criminal appeals, and see if he lists any prior appellate cases on his website or AVVO profile, as few attorneys have substantial experience in this area. It is very time consuming, requires legal research and scholarship and appellate litigation can often require 18 months to two years (or even longer) to be completed.
Identifying issues having arguable merit.After the appellate attorney has obtained the required material in the case, he/she will discuss the case with you and determine the issues about which you may be concerned and determine if there are factual matters that need to be investigated by a private investigator and/or experts that need to be retained such as a DNA expert, psychologist or forensic pathologist. If an attorney is privately retained, it is important to discuss with him/her what the potential expenses of the appeal may be, especially if a private investigator or expert(s) will be used. Expert expenses can easily cost thousands of dollars. It is essential that the attorney obtain transcripts of all proceedings in the case that were held on the record in court.
Pursuing issues having arguable merit.After an appellate counsel has identified issues having arguable merit, he/she will inform you of his conclusions. Some issues, such as ineffective assistance of trial counsel and newly discovered evidence, must be raised initially in the trial court in a postconviction motion so that a factual record can be made. At postconviction motion hearing, witnesses will testify and the attorneys will present oral argument. If the issue of ineffective assistance of trial counsel has been raised, the trial counsel will be required to testify at the motion hearing. If the postconviction motion is granted, the trial court will enter an order for a new trial, an order to vacate a guilty or no contest plea or an order to modify the sentence, depending on what type of relief was requested. If that postconviction motion is denied, the issue(s) raised in that motion can then be raised as a matter of right on appeal in the Wisconsin Court of Appeals. If the postconviction motion is denied, the appellate counsel will then file a notice of appeal in the trial court and the trial court record will be filed by the clerk of the trial court with the Clerk of the Wisconsin Court of Appeals in Madison. The appellate counsel will then file a brief that will argue the issues having arguable merit. The Wisconsin Attorney General will file a brief in response and the defendant's counsel will then file a final reply brief. Oral argument in the Wisconsin Court of Appeals is rare and the issues are usually decided only on the written briefs. The Court of Appeals usually issues a decision approximately four to six months after briefing is completed but there is no deadline for them to issue a decision.
Review by the Wisconsin Supreme Court.If you are unhappy with the decision of the Court of Appeals, a Petition for Review can be filed with the Wisconsin Supreme Court. It must be filed within 30 days of the decision of the Court of Appeals. An extension of time to file the Petition for Review is not allowed. The Wisconsin Supreme Court accepts Petitions for Review in very few cases. The Supreme Court will accept a Petition for Review only if certain specific criteria for a review are met, including, but not limited to: (1) the issue in the case is an issue of state of federal constitutional law; or (2) the issue in the case is an issue of law, rather than a factual issue, and is likely to recur unless the Supreme Court resolves the issue. If a petition for review is accepted, the attorneys will file briefs and the court will then schedule oral argument in Madison at the State Capital. After oral argument occurs, the Supreme Court will issue a decision.