State v. Robert James Pope, Jr.

2019 WI 106
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1720-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant,
v.
Robert James Pope, Jr.,
Defendant-Respondent-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 385 Wis. 2d 211,923 N.W.2d 177
(2018 – unpublished)
OPINION FILED: December 17, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 6, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Jeffrey A. Conen
JUSTICES:
ZIEGLER, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., KELLY and HAGEDORN, JJ., joined.
BRADLEY, REBECCA GRASSL, J., filed a dissenting opinion, in
which BRADLEY, ANN WALSH and DALLET, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs
filed by Andrea Taylor Cornwall, assistant state public
defender. There was an oral argument by Andrea Taylor Cornwall.
For the plaintiff-appellant, there was a brief filed by
Daniel J. O’Brien, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Daniel J. O’Brien.
2019 WI 106
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1720-CR
(L.C. No. 1996CF960574)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant,
FILED
v. DEC 17, 2019
Robert James Pope, Jr., Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent-Petitioner.
ZIEGLER, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., KELLY and HAGEDORN, JJ., joined.
BRADLEY, REBECCA GRASSL, J., filed a dissenting opinion, in
which BRADLEY, ANN WALSH and DALLET, JJ., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an
unpublished opinion of the court of appeals, State v. Pope, No.
2017AP1720-CR, unpublished slip op. (Wis. Ct. App. Nov. 13,
2018), reversing the Milwaukee County circuit court's1 order.
The circuit court vacated Robert James Pope, Jr.'s ("Pope") 1996
1The Honorable Jeffrey A. Conen presided over the
postconviction motion. Other circuit court judges presided over
the trial, sentencing, and earlier motions in this case. But
only the postconviction order is before this court on review.
No. 2017AP1720-CR
judgment of conviction for two counts of first-degree
intentional homicide, party to a crime, and granted Pope's
postconviction motion for a new trial. The circuit court
concluded that a new trial was necessary because there was no
transcript of Pope's 1996 jury trial available. The court of
appeals reversed and reinstated Pope's conviction. The court of
appeals concluded that Pope was not entitled to a new trial
because he failed to meet his burden to assert a facially valid
claim of error. We affirm the court of appeals.
¶2 Under State v. Perry and State v. DeLeon, when a
transcript is incomplete, a defendant may be entitled to a new
trial, but only after the defendant makes a facially valid claim
of arguably prejudicial error. Perry, 136 Wis. 2d 92, 101, 401
N.W.2d 748 (1987); DeLeon, 127 Wis. 2d 74, 377 N.W.2d 635 (Ct.
App. 1985). This court must decide whether the Perry/DeLeon
procedure applies even when the entire trial transcript is
unavailable. Pope argues that the Perry/DeLeon procedure does
not apply, and that courts should presume prejudice when the
entire transcript is unavailable. The State argues that under
the Perry/DeLeon procedure Pope is not entitled to a new trial
because he has not asserted a facially valid claim of arguably
prejudicial error.
¶3 We decline to presume prejudice when the entire trial
transcript is unavailable. We conclude that the Perry/DeLeon
procedure applies whether all or a portion of a transcript is
unavailable. We also decline to create an exception to the
Perry/DeLeon procedure for Pope because the transcript is
2
No. 2017AP1720-CR
unavailable due to Pope's own delay. Thus, we affirm the court
of appeals.
I. FACTUAL BACKGROUND
¶4 On September 27, 1995, City of Milwaukee Police
Officers William Walsh and John Krason responded to reports of a
shooting at a house. When they arrived at the house, the
officers found Anthony Gustafson and Joshua Viehland suffering
from multiple gunshot wounds. Both young men were pronounced
dead at the scene of the crime.
¶5 On January 12, 1996, the State filed a criminal
complaint against Pope, charging him with two counts of first-
degree intentional homicide while armed, party to a crime,
contrary to Wis. Stat. §§ 940.01(1), 939.63, and 939.05 (1995-
96).2 Since there is no trial transcript available, the
following allegations are drawn from the criminal complaint
only. The complaint alleged that Pope, Pope's girlfriend J.R.,
I.G., D.K., and D.R. all plotted to kill Joshua Viehland because
Viehland threatened their friend. According to J.R.'s statement
to officers, Pope told her that he would protect her from
Viehland. According to I.G.'s statement to officers, the five
met at a house to discuss Viehland's threats. J.R. told them
all that if they did not shoot Viehland and Jessie Letendre, she
and Pope would do it. The complaint alleges that the five made
Where relevant, we reference the 1995-96 version of the
2
Wisconsin Statutes. All other references to the Wisconsin
Statutes are to the 2015-16 version unless otherwise indicated.
3
No. 2017AP1720-CR
a plan to call Letendre and have Letendre and Viehland meet them
at the house. I.G.'s statement to police was that D.R. called
Letendre from a phone booth. D.R. kept talking to Letendre at
the phone booth and J.R. drove Pope, I.G., and D.K. to the
house.
¶6 Pope, I.G., and D.K. hid in the house, and J.R. waited
in a car down the hill. At the house, Pope asked what the guys
they were going to kill looked like. He had never met them.
D.K. told Pope that they were waiting for a bald, white man with
glasses. The complaint alleges that two people approached the
house. As it turned out, these two men were Viehland and
Gustafson, not Letendre. Pope rounded a corner and fired his
gun at them. Pope's gun jammed and then D.K. started firing
shots. D.K. stated that he shot Viehland, and then shot the
other man, not knowing who he was. I.G. stated that when he
rounded the corner, he saw a young man lying on the floor. He
did not recognize him. He then saw another man fall. I.G. saw
this man was Viehland, and then shot him in the head. I.G.,
D.K., and Pope ran to the car and J.R. drove them away.
¶7 J.R. stated that Pope sat in the front seat with her
and that he was excited and breathing heavily. He told her that
they had shot two men, and he thought they were dead. Pope told
J.R. that he had fired one shot into a man's chest and then his
gun jammed; that he did not care who died because he did not
know them. Pope threw a gun in the river and the group
dispersed, congratulating one another.
4
No. 2017AP1720-CR
II. PROCEDURAL POSTURE
¶8 The charges against Pope proceeded to trial. On
May 31, 1996, the jury returned its verdict and found Pope
guilty of two counts of first-degree intentional homicide as a
party to the crime. But the jury did not find that the State
proved Pope committed either offense while using a dangerous
weapon.
¶9 On July 2, 1996, the circuit court sentenced Pope to
life imprisonment without parole. That same day, Pope and his
trial counsel signed an SM-33 form.3 The form indicated that
Pope intended to pursue postconviction relief and that counsel
would timely file a formal notice of intent to pursue
postconviction relief within 20 days——or by July 22, 1996. The
form also indicated that Pope knew the notice had to be filed
within 20 days. If trial counsel had actually filed the notice
of intent to pursue postconviction relief, it would have set in
motion the procedures for obtaining a trial transcript and
appointment of appellate counsel. See Wis. Stat. § (Rule)
809.30(2)(c)-(h) (1995-96).4 But trial counsel did not file that
3 The SM-33 form has since been replaced by CR-233 Notice of
Right to Seek Postconviction Relief adopted by the Wisconsin
Judicial Conference.
4 Rule 809.30(2) (1995-96) provided, as follows:
(2) Appeal or postconviction motion by
defendant. (a) A defendant seeking postconviction
relief in a felony case shall comply with this
section. Counsel representing the defendant at
sentencing shall continue representation by filing a
notice under par. (b) if the defendant desires to
5
No. 2017AP1720-CR
pursue postconviction relief unless sooner discharged
by the defendant or by the trial court.
(b) Within 20 days of the date of sentencing,
the defendant shall file in the trial court and serve
on the district attorney a notice of intent to pursue
postconviction relief. . . .
(c) Within 5 days after a notice under par. (b)
is filed, the clerk shall:
1. If the defendant requests representation by
the state public defender for purposes of
postconviction relief, send to the state public
defender's appellate intake office a copy of the
notice, a copy of the judgment or order specified in
the notice, a list of the court reporters for each
proceeding in the action in which the judgment or
order was entered and a list of those proceedings in
which a transcript has been filed in the court record
at the request of trial counsel.
. . .
(e) Within 30 days after the filing of a notice
under par. (b) requesting representation by the state
public defender for purposes of postconviction relief,
the state public defender shall appoint counsel for
the defendant and order a transcript of the reporter's
notes, except that if the defendant's indigency must
first be determined or redetermined, the state public
defender shall do so, appoint counsel and order
transcripts within 50 days after the notice under par.
(b) is filed.
(f) A defendant who does not request
representation by the state public defender for
purposes of postconviction relief shall order a
transcript of the reporter's notes within 30 days
after filing a notice under par. (b).
. . .
(g) The court reporter shall file the transcript
with the trial court and serve a copy of the
transcript on the defendant within 60 days of the
ordering of the transcript. Within 20 days of the
6
No. 2017AP1720-CR
notice of intent to pursue postconviction relief, as required by
Wis. Stat. § 809.30(2)(b), in order to commence a direct appeal.
As a result, Pope's direct appeal rights expired and no appeal
was initiated.
¶10 On September 16, 1997, about 14 months after the
filing deadline, Pope finally made his first effort to correct
trial counsel's error. He filed a pro se motion to extend the
deadline for filing the notice of intent to pursue
postconviction relief in the court of appeals. Pope argued that
his trial counsel had failed to file the notice of intent,
despite Pope's instructions that he file it. Pope attached to
his motion a letter he had received from the State Public
Defender's office that explained,
When [a Notice of Intent] is timely filed, appellate
counsel is appointed, transcripts are ordered and the
appeal proceeds in the normal fashion. If the Notice
of Intent is not filed within 20 days of sentencing,
it is necessary to ask the court of appeals to extend
the time by filing a motion.
The letter also explained that the State Public Defender had "no
idea why the Notice was not timely filed and therefore you are
going to have to explain the reason to the court in a motion to
extend the time for filing the Notice." The letter also
instructed Pope to send any order granting the extension to
their Appellate Intake office.
ordering of a transcript of postconviction proceedings
brought under sub. (2) (h), the court reporter shall
file the original with the trial court and serve a
copy of that transcript on the defendant.
7
No. 2017AP1720-CR
¶11 But, on September 25, 1997, the court of appeals
denied Pope's motion. It reasoned:
Even assuming the truth of Pope's representations
regarding the performance of trial counsel, Pope has
failed to provide the court with a sufficient
explanation as to why, when counsel failed to initiate
postconviction proceedings timely, he did not attempt
to commence postconviction proceedings on his own.
The court can see nothing in the motion that would
warrant a fifteen-month[5] delay in commencing
postconviction proceedings.
¶12 Thus, the court of appeals concluded that Pope had not
shown good cause for his delay in bringing the motion. It
denied the motion. Importantly, this 1997 court of appeals'
decision is not before this court for review. Rather, we review
its 2018 decision concluding that Pope is not entitled to a new
trial because he failed to assert a facially valid claim of
error. Since 1997 Pope has made multiple attempts to reinstate
his appeal rights. The procedural history of his case is
lengthy. But it is Pope's inaction for 14 months from July 1996
to September 1997 that partially controls the outcome in this
case——both then in September 1997, and now in 2019.
¶13 On October 15, 1997, Pope filed a pro se Wis. Stat.
§ 974.06 motion to reinstate his rights to appeal in the circuit
court, arguing that trial counsel was ineffective for not filing
5The court of appeals has repeatedly referred to a 15-month
delay in this case. That is not accurate. The deadline to file
the notice of intent was July 22, 1996. Pope filed his pro se
motion on September 16, 1997——just under 14 months later. But
the difference between 14 and 15 months delay is immaterial to
our analysis in this case.
8
No. 2017AP1720-CR
a notice of intent to pursue postconviction relief. The circuit
court denied the motion, citing the court of appeals' September
1997 decision. On November 5, 1997, Pope filed a notice of
appeal. As part of that appeal, Pope filed a statement on
transcript, which the court of appeals construed as a motion to
waive transcript fees. The court of appeals remanded to the
circuit court to determine whether Pope was entitled to a waiver
of transcript fees under Wis. Stat. § 814.29(1).6 The circuit
court issued findings of fact and conclusions of law. It
concluded that Pope had not made a claim for relief and was not
entitled to free transcripts. On December 23, 1997, the court
of appeals noted that Pope had not yet filed a statement on
transcript as required under Wis. Stat. §§ (Rules) 809.11(4) and
809.16,7 and ordered him to do so. On January 2, 1998, Pope
6 Wisconsin Stat. § 814.29(1)(a) (1995-96) provided as
follows:
Any person may commence, prosecute or defend any
action or proceeding in any court, or any writ of
error or appeal therein, without being required to
give security for costs or to pay any service or fee,
upon order of the court based on a finding that
because of poverty the person is unable to pay the
costs of the action or proceeding, or any writ or
error or appeal therein, or to give security for those
costs.
7 Rule 809.11(4) (1995-96) provided as follows:
(4) Statement on transcript. The appellant
shall file with the clerk of the court of appeals
within 10 days of the filing of the notice of appeal
in the trial court, a statement that a transcript is
not necessary for prosecution of the appeal or a
statement by the court reporter that the transcript or
designated portions thereof have been ordered,
9
No. 2017AP1720-CR
filed a statement on transcript, asserting that the only
transcript necessary for his appeal was the sentencing
transcript.
¶14 On March 5, 1999, the court of appeals affirmed the
circuit court's order denying Pope's Wis. Stat. § 974.06 motion
to reinstate his right to appeal. The court of appeals once
again concluded that "[b]ecause Pope failed to provide any
reason for his fifteen-month delay before seeking § 974.06
relief, he waived his right to appeal . . . ." Then Pope filed
a petition for review with this court. On March 10, 1999, we
arrangements have been made for the payment by the
appellant of the cost of the original transcript and
all copies for other parties, the date on which the
transcript was ordered and arrangements made for
payment, and the date on which the transcript is due.
The appellant shall file a copy of the statement on
transcript with the clerk of the trial court within 10
days of the filing of the notice of appeal.
Rule 809.16(1) (1995-96) provided as follows:
Within 10 days of the filing of the notice of
appeal, the appellant shall make arrangements with the
reporter for the preparation of a transcript of the
reporter's notes of the proceedings and service of
copies and file in the court a designation of the
portions of the reporter's notes that have been
ordered. Any other party may file within 10 days of
service of the appellant's notice, a designation of
additional portions to be included in the transcript.
The appellant shall file within 10 days of the service
of the other party's designation the statement
required by s. 809.11(4) covering the other party's
designations. If the appellant fails or refuses to
order the designated portions, the other party may
order the portions or file a motion with the trial
court for an order requiring the appellant to do so.
10
No. 2017AP1720-CR
denied it as untimely. We reasoned that the petition
essentially asked this court to review the court of appeals'
September 1997 decision, meaning it should have been filed back
in 1997.
¶15 Four years later, on June 20, 2003, Pope filed a pro
se motion to extend the time for filing his postconviction
motion in the court of appeals. On July 11, 2003, the court of
appeals denied the motion, concluding that the issue was
"settled and will not be relitigated."
¶16 Eleven years later, on July 21, 2014, Pope filed a
Knight8 petition for a writ of habeas corpus. He argued that his
direct appeal rights should be reinstated because trial counsel
was ineffective for not filing a notice of intent. On
November 13, 2015, the court of appeals remanded to the circuit
court for fact-finding. The circuit court appointed counsel for
Pope. After a hearing, the circuit court issued findings of
fact on June 7 and 28, 2016. The circuit court found that: (1)
Pope was represented at sentencing by counsel; (2) Pope and his
counsel filed the SM-33 form on July 2, 1996, indicating Pope's
intent to pursue postconviction relief; (3) his counsel did not
file the notice of intent; (4) his counsel's practice was to
file a defendant's notice of intent personally or via mail; (5)
Pope wrote two letters to his counsel on July 8 and 18, 1996,
regarding the status of his appeal and transcripts, of which his
counsel had no memory; (6) his counsel was publicly reprimanded
8 State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).
11
No. 2017AP1720-CR
for his representation of clients in other postconviction
matters; and (7) Pope had been attempting pro se to get his
appeal rights reinstated since 1996.9 Additionally, the circuit
court found that: (1) Pope's testimony regarding his efforts to
reach his counsel was credible; (2) his counsel did not follow
up with Pope or preserve his files; and (3) there was no
evidence that his counsel filed a notice of intent.
¶17 Following the circuit court's findings, on August 16,
2016, Pope and the State filed a joint stipulation for
reinstatement of Pope's direct appeal deadlines and dismissal of
the habeas petition. On September 29, 2016, based on the
parties' stipulation, the court of appeals ordered that Pope's
direct appeal rights be reinstated and dismissed the habeas
petition. On October 4, 2016, 20 years after his conviction,
Pope filed a notice of intent to pursue postconviction relief in
the circuit court. He also ordered trial transcripts for the
first time. But the court reporters no longer had any notes
from Pope's 1996 jury trial. In the end, Pope obtained
While some might argue that this factual finding should
9
change the outcome of our review here, the circuit court's
factual finding cannot change the law of Pope's case. In 1997,
the court of appeals concluded that Pope delayed in bringing his
motion to extend the deadline to file a notice of intent and he
failed to show good cause for his delay.
12
No. 2017AP1720-CR
transcripts of his preliminary hearing and sentencing only. The
transcript of Pope's 1996 jury trial is now unavailable.10
¶18 On March 7, 2017, Pope filed a Wis. Stat. § (Rule)
809.30 postconviction motion for a new trial. Pope argued that
the lack of a trial transcript denied him his constitutional and
statutory right to appeal his convictions and denied him due
process under the Fourteenth Amendment to the United States
Constitution. The State opposed the motion and argued that,
under Perry, Pope was not entitled to a new trial because he
failed to make a claim of error. On July 19, 2017, the
postconviction court held a hearing and ordered a new trial. It
issued a written order two days later. The postconviction court
concluded that, without even a portion of the trial transcript,
it would be impossible to make a claim of error. Thus, it
concluded there was "no other option but to order a new trial in
10Pursuant to Supreme Court Rule 72.01(47), court reporters
are required to keep their notes for 10 years after a court
proceeding. Pope did not order a trial transcript until over 20
years after his trial. Thus, by the time he ordered the trial
transcript, it was unavailable. Supreme Court Rule 72.01(47)
provides as follows:
SCR 72.01 Retention of original record.
Except as provided in SCR 72.03 to 72.05, the
original paper records of any court shall be retained
in the custody of the court for the following minimum
time periods: . . .
(47) Court reporter notes. Verbatim steno-
graphic, shorthand, audio or video notes produced by a
court reporter or any other verbatim record of in-
court proceedings: 10 years after the hearing.
13
No. 2017AP1720-CR
this case." The court of appeals applied Perry and reversed.
Pope, No. 2017AP1720-CR, unpublished slip op. It concluded:
"Pope had the initial burden in his postconviction motion of
claiming some facially valid claim of error. He failed to do
so." Id., ¶38.
¶19 Pope filed a petition for review in this court. We
granted the petition.
III. STANDARD OF REVIEW
¶20 The circuit court's decision whether to grant a new
trial due to lack of transcript is discretionary. Perry, 136
Wis. 2d at 109. It will be upheld if "due consideration is
given to the facts then apparent, including the nature of the
claimed error and the colorable need for the missing portion——
and to the underlying right under our constitution to an
appeal." Id. A circuit court erroneously exercises its
discretion if it commits an error of law. State v. Raye, 2005
WI 68, ¶16, 281 Wis. 2d 339, 697 N.W.2d 407.
IV. ANALYSIS
A. The Right To An Appeal
¶21 The Wisconsin Constitution guarantees the right to an
appeal. Pursuant to Article I, Section 21(1) of the Wisconsin
Constitution, "Writs of error shall never be prohibited, and
shall be issued by courts as the legislature designates by law."
See also Perry, 136 Wis. 2d at 98. The legislature designated
the court of appeals as the court where the right to appeal
14
No. 2017AP1720-CR
should be exercised. See Wis. Stat. § 808.02 ("A writ of error
may be sought in the court of appeals.") Regarding criminal
appeals, this court has said, "Basic to a criminal appeal is the
statement of the errors that an aggrieved defendant alleges were
committed in the course of the trial and a showing that such
errors (or error) were prejudicial." Perry, 136 Wis. 2d at 99.
Accordingly, when a defendant asserts that an arguably
prejudicial error occurred at trial, the defendant has a
constitutional right to assert that prejudicial error on appeal.
¶22 A defendant's argument regarding such arguably
prejudicial trial error is based upon and identified in the
trial transcript. Thus, a transcript of the trial proceedings
is crucial to such an appeal.
In order that the right [to an appeal] be meaningful,
our law requires that a defendant be furnished a full
transcript——or a functionally equivalent substitute
that, in a criminal case, beyond a reasonable doubt,
portrays in a way that is meaningful to the particular
appeal exactly what happened in the course of trial.
Perry, 136 Wis. 2d at 99.
¶23 Because a transcript is crucial to the right to an
appeal, Wisconsin courts provide additional protection for
appellants when they do not have a complete transcript. Id.
When a trial transcript is incomplete, the appellant need only
assert a facially valid claim of arguably prejudicial error in
the unavailable transcript. Id. at 108-09. The appellant need
not actually prove a claim of error. Id. Rather, once the
appellant has asserted a facially valid claim of arguably
prejudicial error, the appellant triggers a procedure to
15
No. 2017AP1720-CR
reconstruct the record. Id. If reconstruction is impossible,
then the appellant gets a new trial. Id. We discuss that
procedure in detail below.
B. The Perry/DeLeon Procedure
¶24 This court's decision in Perry sets forth the
procedure that parties and the court must follow when a record
is incomplete during post-trial proceedings. Perry is best
understood in conjunction with its predecessor, State v. DeLeon.
¶25 In DeLeon a defendant sought reversal of his
conviction for first-degree sexual assault because the court
reporter somehow lost approximately 15 minutes of trial
testimony. DeLeon, 127 Wis. 2d at 76. His trial was to the
court, not a jury. The circuit court denied DeLeon's motion for
a new trial. Id. It concluded that, rather than a new trial,
the proper remedy was to recall the witnesses whose testimony
was lost and reconstruct the record. Id. The court of appeals
affirmed. Id. It also set forth the procedure Wisconsin courts
should follow in similar situations.
¶26 First, the appellant must allege a facially valid
claim of arguably prejudicial error. The appellant need not
demonstrate actual prejudice, but nonetheless must make an
adequate showing.
Before any inquiry concerning missing notes takes
place, common sense demands that the appellant claim
some reviewable error occurred during the missing
portion of the trial. Obviously, the trial court need
not conduct an inquiry if the appellant has no
intention of alleging error in the missing portion of
the proceedings. If, however, the trial court
16
No. 2017AP1720-CR
determines that the appellant has at least a facially
valid claim of error, the inquiry should take place.
DeLeon, 127 Wis. 2d at 80 (emphasis added). If this prejudice
is not so demonstrated, then the analysis ends.
¶27 If, however, the circuit court concludes that the
defendant has demonstrated a facially valid claim of arguably
prejudicial error, then the court must proceed to make the
discretionary determination of whether the missing record can be
reconstructed. DeLeon, 127 Wis. 2d at 81. This determination
is case-specific. Id. The circuit court utilizes its
discretion to determine what information may be relevant to the
issue at hand, but some considerations might include "the length
of the missing transcript, the availability of witnesses and
trial counsel, and the amount of time which had elapsed . . . ."
Id. If the circuit court determines that record reconstruction
is impossible, then it must order a new trial. Id. If the
circuit court determines that record reconstruction is possible,
then the appellant bears the burden to reconstruct the record.
Id.
¶28 When record reconstruction is possible, the circuit
court proceeds to determine what the record would have been.
For example, the appellant may draft an affidavit describing the
missing record. Id. The respondent may then file objections,
propose amendments, or approve the affidavit. Id. The parties
may also draft and file a joint statement. Id. If the parties
dispute the record, then the circuit court may attempt to
resolve the dispute. Id. The circuit court may not speculate
17
No. 2017AP1720-CR
regarding the contents of the original record. Id. Rather, the
circuit court must try to establish what the record actually
was, relying on the parties' submissions, its own recollection,
hearings, counsel, and other sources. Id. at 81-82. When
reconstructing the record, the level of proof required is the
same as at trial. Id. at 82. That means, in a criminal case,
the circuit court "must be satisfied beyond a reasonable doubt
that the missing testimony has been properly reconstructed."
Id. If the circuit court is so satisfied beyond a reasonable
doubt, then the record is reconstructed accordingly. Id. If
not, then the circuit court must order a new trial. Id. Thus,
the court of appeals in DeLeon established a procedure for
record reconstruction.
¶29 In Perry this court was called upon to determine
whether the DeLeon procedure should apply when portions of the
court reporter's trial notes were destroyed in the mail. Perry,
136 Wis. 2d at 95-96. Perry, unlike DeLeon, had a trial to a
jury. Id. at 95. About one-eighth of the trial transcript was
lost, including the testimony of two witnesses and closing
arguments. Id. at 107. Perry moved for a new trial, arguing
that the transcript deficiency alone denied him his right to
appeal. Id. at 96. The circuit court denied the motion,
concluding that the available portions of the transcript were
sufficient to proceed on appeal. Id. at 96-97. The court of
appeals reversed, concluding that the transcript was
insufficient and declining to follow the DeLeon procedure. Id.
at 97, 102. The court of appeals concluded that DeLeon should
18
No. 2017AP1720-CR
be limited to its facts and that a remand to the trial court to
undergo the DeLeon procedure would serve no purpose. Id. at
102. On appeal to this court, we affirmed the court of appeals'
determination, but clarified that the DeLeon procedure is not
limited to its facts and indeed must be followed. Id. We
stated, "[T]he essence of DeLeon is its methodology, which is as
appropriate for this case as it was for DeLeon." Id. Thus, in
Perry, we concluded that the DeLeon procedure "can be applied to
a broad spectrum of cases." Id. at 102-03. The outcomes of the
procedure may vary; whether the record can be reconstructed is
an inquiry that depends on the facts of each case. But the
Perry/DeLeon procedure guides each inquiry.
¶30 Thus, in Perry we concluded that the procedure first
established in DeLeon would be applicable "to a broad spectrum
of cases." Regarding its threshold requirement, we emphasized
that, while the appellant need not demonstrate actual prejudice,
the appellant must allege a facially valid claim of arguably
prejudicial error in order to trigger the reconstruction portion
of the Perry/DeLeon procedure. Perry, 136 Wis. 2d at 108-09.
More than 30 years later, we are called upon to now decide
whether this procedure applies when the entire trial transcript
is unavailable.
C. The Perry/DeLeon Procedure Applies.
¶31 Pope argues that the Perry/DeLeon procedure should not
apply to this case because the unavailability of the entire
trial transcript prevents appellate counsel from determining
whether any arguably prejudicial errors exist for appeal.
19
No. 2017AP1720-CR
Instead, Pope argues that courts should here presume prejudice
because the entire trial transcript is unavailable. The State
argues that the Perry/DeLeon procedure applies and Pope must
first assert a facially valid claim of arguably prejudicial
error. We agree with the State. We decline to presume
prejudice when the entire trial transcript is unavailable. We
conclude that the Perry/DeLeon procedure applies to a "broad
spectrum of cases" including when the entire trial transcript is
unavailable. This conclusion is consistent with both Perry and
DeLeon. We find additional support for this conclusion in
federal law and appellate procedure generally.
¶32 Perry made clear that the Perry/DeLeon procedure is
broadly applicable. Perry, 136 Wis. 2d at 102-03. It also
emphasized that the appellant's initial burden to assert a
facially valid claim of arguably prejudicial error was necessary
to trigger that procedure. Id. at 108. Additionally, for the
court of appeals in DeLeon, putting the initial burden on the
appellant was a matter of "common sense." DeLeon, 127 Wis. 2d
at 80. We agree and conclude that "common sense demands that
the appellant claim some reviewable error occurred" whether a
portion or an entire transcript is missing. Id. Logic dictates
that when the defendant claims an arguably prejudicial error
occurred in the missing trial transcript, that missing
transcript is critical to the defendant's argument, regardless
of the missing portion's size——large, small, or all.
¶33 There is nothing exceptional about requiring the
appellant to assert a facially valid claim of arguably
20
No. 2017AP1720-CR
prejudicial error. This is consistent with appellate procedure
generally. All appellants must make a valid claim for appeal at
some point. Put simply, there is no appeal without a claim.
Additionally, under the Perry/DeLeon procedure, the appellant
does not need to actually prove a claim of error. The circuit
court requires only an assertion of a facially valid claim in
order to trigger record reconstruction or, potentially, a new
trial. Thus, rather than setting an exceptional burden, the
Perry/DeLeon procedure merely requires some arguable showing
before the efforts of reconstruction are undertaken. If an
adequate record cannot be so reconstructed, then, unlike a
traditional appellant who would need to prove the right to
relief on the merits of the argument presented, the appellant
with an incomplete transcript would receive the requested relief
based upon the missing record.
¶34 Nor is there anything extraordinary about placing the
initial burden to present facts on the appellant or, at the
reconstruction stage, requiring the defendant to take the
laboring oar even when the entire transcript is unavailable. In
fact, federal courts also place the burden to reconstruct the
record on the appellant. Federal Rule of Appellate Procedure
10(c) establishes the procedure for reconstructing a record when
a transcript is unavailable:
If the transcript of a hearing or trial is
unavailable, the appellant may prepare a statement of
the evidence or proceedings from the best available
means, including the appellant's recollection. The
statement must be served on the appellee, who may
serve objections or proposed amendments within 14 days
21
No. 2017AP1720-CR
after being served. The statement and any objections
or proposed amendments must then be submitted to the
district court for settlement or approval. As settled
and approved, the statement must be included by the
district clerk in the record on appeal.
Fed. R. App. P. 10(c). This procedure is broadly applicable in
federal appeals, and it is very similar to the Perry/DeLeon
procedure.
¶35 Indeed, the court of appeals in DeLeon discussed Rule
10 prior to concluding that Wisconsin courts should use a
similar procedure. The court of appeals summarized Rule 10 and
a case applying it. DeLeon, 127 Wis. 2d at 78-80. It then
stated:
Using the Federal Rules of Appellate Procedure
and the Cole[11] case as guides, we now develop the
procedure that trial courts should follow in
Wisconsin. Although the appeal is a criminal case,
the same procedure will apply in civil cases.
Before any inquiry concerning missing notes takes
place, common sense demands that the appellant claim
some reviewable error occurred during the missing
portion of the trial.
Id. at 80. Thus, from its inception, Wisconsin courts have
considered the Perry/DeLeon procedure, including its threshold
claim-of-error requirement, to be consistent with the federal
lead. We agree, and we will continue to follow the federal
lead.
¶36 Pope's request that we presume prejudice could
actually provide the most relief to offenders who are serving
the longest sentences. In Wisconsin, court reporters need only
11 Cole v. United States, 478 A.2d 277 (D.C. 1984).
22
No. 2017AP1720-CR
maintain their notes for ten years. See SCR 72.01(47). If we
were to presume prejudice when the entire transcript is
unavailable, there would be nothing to stop criminal defendants
from sitting on their hands for ten years, and then claiming
that they told trial counsel to file a notice of intent. Under
Pope's proposed rule, criminal defendants would automatically be
entitled to a new trial after ten years regardless of their
sentence because their transcripts would be unavailable if not
previously requested. We decline to provide such relief to
those who might unduly benefit from sitting on their right to
request appellate relief contemporaneously (with the best
available evidence, testimony, and transcripts), and instead
wait until no transcript is available.
¶37 Pope argues that requiring appellate counsel to assert
a facially valid claim of arguably prejudicial error conflicts
with counsel's ethical and statutory obligations. See SCR
20:3.1(a)(1) (prohibiting lawyers from "knowingly advanc[ing] a
claim or defense that is unwarranted"); and Wis. Stat. § (Rule)
809.32 (requiring appellate counsel who concludes that a direct
appeal would be frivolous and without merit, upon the client's
request, to file a no-merit report identifying each potential
claim and why it lacks merit). We disagree; there is no
conflict. The Perry/DeLeon procedure requires a facially valid
claim in order to proceed. It does not require counsel to do
anything unethical or illegal. Rather, the Perry/Leon procedure
is consistent with counsel's obligations. Under each framework,
if there is no valid claim, then the litigation must end.
23
No. 2017AP1720-CR
¶38 We therefore decline to presume prejudice when the
entire trial transcript is unavailable. We conclude that the
Perry/DeLeon procedure applies even when the entire trial
transcript is unavailable. This conclusion is consistent with
Perry and DeLeon, federal law, and appellate procedure
generally.
D. The Transcript Is Unavailable Due To Pope's Delay.
¶39 Pope argues that we should carve out an exception to
the Perry/DeLeon threshold requirement that the appellant assert
a facially valid claim of arguably prejudicial error when the
entire transcript is unavailable. We decline to create an
exception to the Perry/DeLeon procedure for Pope because, as we
explain below, the transcript is unavailable due to his delay.
¶40 To begin, creating an exception to the Perry/DeLeon
procedure when the lack of transcript is attributable to the
appellant is inconsistent with Perry and DeLeon. Both cases
were premised on the fact that the defendants were not at fault
for the lost transcript. In DeLeon the court reporter lost some
of her trial notes. 127 Wis. 2d at 76. The court of appeals
concluded, "Where, as here, a portion of the record is lost
through no fault of the aggrieved party, that party should not
be made to bear the burden of this loss." Id. at 77 (emphasis
added). And in Perry, portions of the court reporter's trial
notes were lost in the mail. 136 Wis. 2d at 96. Again, the
notes were lost "through no fault of the aggrieved party," the
appellant. DeLeon, 127 Wis. 2d at 77. Furthermore, Perry
"ha[d] done everything that reasonably could be expected in
24
No. 2017AP1720-CR
order to perfect his appeal." Perry, 136 Wis. 2d at 108. Thus,
neither case supports the proposition that an appellant should
automatically get a new trial when the appellant caused the
transcript to be unavailable on appeal. Those cases simply did
not contemplate the situation presented here. Nor can it be
said that Pope "has done everything that reasonably could be
expected in order to perfect his appeal." Id.
¶41 In this case, the appellant, Pope, caused the
transcript to be unavailable because he sat on his rights.
First, Pope sat on his rights for 14 months after the notice of
intent was due. Pope knew that his notice of intent was due on
July 22, 1996. On July 2, 1996, the day of Pope's sentencing,
he and his counsel signed the SM-33 form, which indicated that
Pope knew the notice of intent had to be filed within 20 days.
Additionally, the postconviction court found that Pope wrote two
letters to counsel on July 8 and 18, 1996, regarding the status
of his appeal and transcripts. Pope knew that the deadline to
file his notice of intent was approaching.
¶42 That deadline, July 22, 1996, came and went and
counsel did not file the notice of intent. Pope could have
immediately moved for an extension of the deadline. But he did
not. Rather, Pope sat on his rights for 14 months, until
September 1997. Even then, Pope could have argued that he had
good cause for his 14-month delay. But he did not. Thus, the
court of appeals denied his motion to extend the deadline
because he did not show good cause. It concluded:
25
No. 2017AP1720-CR
Even assuming the truth of Pope's representations
regarding the performance of trial counsel, Pope has
failed to provide the court with a sufficient
explanation as to why, when counsel failed to initiate
postconviction proceedings timely, he did not attempt
to commence postconviction proceedings on his own.
The court of appeals denied Pope's motion because he delayed 14
months in bringing it and provided no justification. That
decision became the law of Pope's case.
¶43 Subsequent decisions of the circuit court, court of
appeals, and even this court, cited the court of appeals'
September 1997 decision to repeatedly deny Pope's motions to
extend the deadline or reinstate his appeal rights. Thus, over
20 years went by and Pope never filed a notice of intent. If
Pope had filed a notice of intent, it would have triggered the
statutory procedure for ordering a transcript and appointing
appellate counsel. See supra note 4 (quoting portions of Wis.
Stat. § (Rule) 809.30(2) (1995-96)). But Pope could not file a
notice of intent because no court granted his motions to extend
the deadline or reinstate his appeal rights due to his 14-month
delay.
¶44 Second, Pope failed to order the transcript on his own
at any point during the ten years after his trial. Court
reporters in Wisconsin are required to keep their trial notes
for only ten years. See SCR 72.01(47) (court reporter notes
"shall be retained" for "10 years after the hearing"). Pope's
trial transcript is unavailable because Pope did not order it at
any point during the ten-year period when the court reporter was
required to keep it pursuant to SCR 72.01(47). After those ten
26
No. 2017AP1720-CR
years passed, the court reporter was not required to and did
not, in fact, keep a copy of the trial transcript. The
transcript is unavailable in this case because Pope sat on his
rights.12 Accordingly, we decline to create an exception to the
Perry/DeLeon procedure——which specifically contemplated a
faultless appellant——for Pope because the transcript is
unavailable due to his delay.13
¶45 In support of his argument that he should be granted a
new trial, Pope cites cases from other jurisdictions where the
appellant was granted a new trial. But none of those cases
supports the proposition that an appellant who causes the
transcript to be unavailable should automatically get a new
trial. See Cole v. United States, 478 A.2d 277, 279 (D.C. 1984)
(appellant timely noticed appeal and ordered a trial transcript,
but the court reporter's notes were lost); State v. Yates, 821
S.E.2d 650, 652-53 (N.C. Ct. App. 2018) (appellant timely
noticed appeal, but court reporter's recording equipment
malfunctioned); Johnson v. State, 524 S.W.3d 338, 339-40 (Tex.
The parties' 2016 joint stipulation to reinstate Pope's
12
direct appeal rights and the court of appeals' subsequent order
to that effect do not change the fact that the trial transcript
is unavailable due to Pope's delay. The stipulation and order
permitted Pope to file an appeal. They did not guarantee that
Pope's appeal would be successful or that he would automatically
win a new trial.
One could argue that Pope is somehow due relief, but that
13
argument would rely on our discretionary authority under Wis.
Stat. § 751.06 to reverse a judgment if "the real controversy
has not been fully tried" or "it is probable that justice has
for any reason miscarried." § 751.06. Neither of those
criterion is met here.
27
No. 2017AP1720-CR
Ct. App. 2017) (appellant did not abandon his appeal, but "a
significant portion of the record had been lost or destroyed
through no fault of the appellant . . . "); Johnson v. State,
805 S.E.2d 890, 891-93 (Ga. 2017) (appellant timely moved for a
new trial, but the entire trial transcript was destroyed in a
fire at the court reporter's house); In re Shackleford, 789
S.E.2d 15, 17 (N.C. Ct. App. 2016) (respondent timely noticed
appeal, but the courtroom recording equipment failed, and no
court reporter was present); see also People v. Jones, 178 Cal.
Rptr. 44, 45 (Cal. Ct. App. 1981) (appellant did not timely
appeal, but court of appeal granted appellant's motion for
relief and court reporter voluntarily destroyed her notes from
appellant's 1973 trial); State v. Hobbs, 660 S.E.2d 168, 169-70
(N.C. Ct. App. 2008) (appellant did not timely notice appeal,
but court of appeals allowed appellant's writ petition and court
reporter's notes and audiotapes were lost).
¶46 Pope also argues that the burden of his procedural
shortcomings should lie with the State because he was acting as
a pro se litigant, abandoned by counsel. See Coleman v.
Thompson, 501 U.S. 722, 754 (1991) (quoting Murray v. Carrier,
477 U.S. 478, 488 (1986)) ("[I]f the procedural default is the
result of ineffective assistance of counsel, the Sixth Amendment
itself requires that responsibility for the default be imputed
to the State."). Both parties and this court all agree that
counsel's failure to file the notice of intent was inexcusable.
But that does not excuse Pope's failure to timely move to extend
the deadline to file the notice of intent. Nor does it excuse
28
No. 2017AP1720-CR
his failure to order the trial transcript for over ten years.
Pro se litigants, though acting without counsel, are still
required to timely assert their rights. If they do not, then
they may forfeit those rights. There are other contexts in
Wisconsin law where an appellant's untimeliness forfeits an
appeal.
¶47 For example, in State v. Escalona-Naranjo we concluded
that an appellant who fails to assert a claim that could have
been asserted on direct appeal or a Wis. Stat. § 974.02 motion
is barred from subsequently asserting that claim for the first
time in a postconviction motion under Wis. Stat. § 974.06.
185 Wis. 2d 168, 173, 517 N.W.2d 157 (1994). In support of
imposing the Escalona-Naranjo bar for failure to timely assert a
claim, we reasoned:
Section 974.06(4) was not designed so that a
defendant, upon conviction, could raise some
constitutional issues on appeal and strategically wait
to raise other constitutional issues a few years
later. Rather, the defendant should raise the
constitutional issues of which he or she is aware as
part of the original postconviction proceedings. At
that point, everyone's memory is still fresh, the
witnesses and records are usually still available, and
any remedy the defendant is entitled to can be
expeditiously awarded.
Id. at 185-86. Thus, we determined that appellants' rights are
best protected when they assert their claims in a timely manner.
We concluded that Escalona-Naranjo forfeited his ineffective
assistance of trial counsel claim because he failed to timely
assert it and did not allege good cause for the delay. Id. at
186.
29
No. 2017AP1720-CR
¶48 We did something similar in State ex rel. Flores v.
State, 183 Wis. 2d 587, 516 N.W.2d 362 (1994). In that case, we
held that once a defendant has been adequately informed of his
right to request a no-merit report under Wis. Stat. § (Rule)
809.32, the defendant is presumed to have waived that right
unless he exercises it. Id. at 617-18. "A defendant may rebut
this presumption by showing exceptional circumstances or good
cause . . . ." Id. at 618.
¶49 We have also long held that unreasonable delay may bar
a petition for a writ of habeas corpus under the equitable
doctrine of laches. See State ex rel. Coleman v. McCaughtry,
2006 WI 49, 290 Wis. 2d 352, 714 N.W.2d 900; see also State ex
rel. Lopez-Quintero v. Dittmann, 2019 WI 58, 387 Wis. 2d 50, 928
N.W.2d 480. In sum, there is nothing particularly remarkable
about the notion that a pro se litigant cannot sit on his
rights.
¶50 Pope knew that his trial counsel needed to file a
notice of intent to pursue postconviction relief by July 22,
1996. When trial counsel failed to file the notice of intent,
Pope failed to defend his rights for 14 months. When Pope
finally filed a motion to extend the deadline to file, the court
of appeals denied his motion because he had delayed for 14
months and there was no good cause shown. Thus, Pope did not
file a notice of intent for 20 years. Nor did he timely order a
trial transcript. Now the trial transcript is unavailable.
Accordingly, we decline to create an exception to the
30
No. 2017AP1720-CR
Perry/DeLeon procedure for Pope because the transcript is
unavailable due to his delay.14
V. CONCLUSION
¶51 We decline to presume prejudice when the entire trial
transcript is unavailable. We conclude that the Perry/DeLeon
procedure applies whether all or a portion of a transcript is
unavailable. We also decline to create an exception to the
Perry/DeLeon procedure for Pope because the transcript is
unavailable due to Pope's own delay. Thus, we affirm the court
of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
14 The State argued that, if we adopted Pope's exception to
the Perry/DeLeon procedure, we should vacate the joint
stipulation reinstating Pope's right to direct appeal and remand
to the court of appeals to consider a laches defense. Because
we decline to create an exception in this case, we do not
consider the State's arguments regarding the stipulation or
laches.
Additionally, the court of appeals' decision relied in part
on Pope's assertion on his 1998 pro se statement on transcript
that the only transcript necessary for his appeal was the
sentencing transcript. Pope argued that a statement on
transcript should not bind a pro se litigant in subsequent
appeals. Because we base our conclusions on the Perry/DeLeon
procedure and Pope's delay, we do not decide the extent to which
a pro se litigant is bound by his assertions on a statement on
transcript.
31
No. 2017AP1720-CR.rgb
¶52 REBECCA GRASSL BRADLEY, J. (dissenting). The Sixth
Amendment to the United States Constitution guarantees all
criminal defendants the right to effective counsel on direct
appeal, even defendants convicted of heinous crimes. Douglas v.
California, 372 U.S. 353, 355-58 (1963); Evitts v. Lucey, 469
U.S. 387, 396-97 (1985). The Sixth Amendment's guarantee of the
assistance of counsel means that an attorney is
"constitutionally ineffective [when he] fail[s] to file a notice
of appeal." Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).
When a defendant establishes that his counsel's deficient
performance deprived him of his direct appeal, "prejudice is
presumed" and his direct appeal rights are restored with "no
need for a 'further showing' of his claims' merit." Garza v.
Idaho, 139 S. Ct. 738, 744, 747 (2019) (quoted source omitted).1
"If the defendant told his lawyer to appeal, and the lawyer
dropped the ball, then the defendant has been deprived, not of
See also Roe v. Flores-Ortega, 528 U.S. 470, 477, 483-84
1
(2000) (loss of the "entire [appellate] proceeding itself, which
a defendant wanted at the time and to which he had a
right . . . demands a presumption of prejudice"; "[w]e have long
held that a lawyer who disregards specific instructions from the
defendant to file a notice of appeal acts in a manner that is
professionally unreasonable," and "'when counsel fails to file a
requested appeal, a defendant is entitled to [a new] appeal
without showing that his appeal would likely have had merit'")
(quoted source omitted); Rodriquez v. United States, 395 U.S.
327, 330 (1969) ("Those whose right to appeal has been
frustrated should be treated exactly like any other appellants;
they should not be given an additional hurdle to clear just
because their rights were violated at some earlier stage in the
proceedings."); see also Strickland v. Washington, 466 U.S. 668,
692 (1984) ("Actual or constructive denial of the assistance of
counsel altogether is legally presumed to result in
prejudice.").
1
No. 2017AP1720-CR.rgb
effective assistance of counsel, but of any assistance of
counsel on appeal," which is a "per se violation of the sixth
amendment." Castellanos v. United States, 26 F.3d 717, 718 (7th
Cir. 1994) (citation omitted).
¶53 The majority acknowledges the failure of Robert James
Pope Jr.'s trial counsel to file the Notice of Intent to Pursue
Postconviction Relief——the prerequisite to the appointment of
appellate counsel——which resulted in the deprivation of Pope's
constitutionally-guaranteed direct appeal rights. Majority op.,
¶9. Nevertheless, the majority repeats the error made by the
court of appeals in 1997 when it denied Pope's first attempt to
resurrect his direct appeal rights: the majority burdens a pro
se criminal defendant with commencing postconviction proceedings
on his own and without the assistance of counsel the Sixth
Amendment otherwise promises him. When this pro se criminal
defendant inevitably committed errors, this court seized upon
his inability to correctly follow the rules of appellate
procedure to deny him what the Constitution guarantees.
Statutes cannot override constitutional rights. "[O]ne
principal reason why defendants are entitled to counsel on
direct appeal is so that they will not make the kind of
procedural errors that unrepresented defendants tend to commit.
The Constitution does not permit a state to ensnare an
unrepresented defendant in his own errors and thus foreclose
access to counsel." Betts v. Litscher, 241 F.3d 594, 596 (7th
Cir. 2001) (emphasis added).
2
No. 2017AP1720-CR.rgb
¶54 After more than twenty years of attempts to reinstate
his direct appeal rights following his attorney's failure to
initiate an appeal, the State stipulated to affording Pope a
direct appeal and the court of appeals ordered Pope's rights
reinstated.2 Pope's constitutionally-guaranteed direct appeal
was back on track until his appellate counsel, new to the case,
discovered that no transcripts from Pope's trial existed. Court
reporters are required to keep trial notes for only 10 years and
the notes from Pope's trial were destroyed in 2006. See SCR
72.01(47) (requiring that court reporter notes "shall be
retained" for "10 years after the hearing"). Because she had
nothing to review, Pope's appellate counsel could not proceed
with Pope's constitutionally and statutorily secured right to
meaningful appellate review.3
2 The State requests the opportunity to assert laches, but
the current posture of this case precludes consideration or
application of that equitable doctrine, which is available in
response to a petition for a writ of habeas corpus but not as a
defense to postconviction motions. The court of appeals
dismissed Pope's habeas petition following the parties'
stipulation to the reinstatement of Pope's direct appeal rights.
These appellate proceedings dispose of Pope's postconviction
motion for a new trial. Laches may not be asserted in defense
of such a motion. See State v. Evans, 2004 WI 84, ¶35, 273
Wis. 2d 192, 682 N.W.2d 784, abrogated on other grounds by State
ex rel. Coleman v. McCaughtry, 2006 WI 49, 290 Wis. 2d 352, 714
N.W.2d 900 ("unlike [Wis. Stat.] § 974.06 motions, a habeas
petition under [State v.]Knight[, 168 Wis. 2d 509, 484
N.W.2d 540 (1992)] is subject to the doctrine of laches because
a petition for habeas corpus seeks an equitable remedy.").
3 Wis. Const. art. I, § 21(1); Wisconsin Stat. § 808.03(1);
State v. Perry, 136 Wis. 2d 92, 99, 401 N.W.2d 748 (1987)
(recognizing defendant's right to appeal must be a "meaningful
one").
3
No. 2017AP1720-CR.rgb
¶55 Accordingly, Pope's appellate counsel filed a Wis.
Stat. § 809.30 motion for a new trial, which she asserted was
the only relief available because no trial transcripts existed,
Pope's trial counsel had destroyed his file and had no memory of
the case, and 20 years had passed since the trial. The circuit
court agreed, vacated Pope's conviction, and granted the motion
for a new trial. The court of appeals reversed, applying the
partially-missing transcript rule from State v. Perry, 136
Wis. 2d 92, 401 N.W.2d 748 (1987), under which a defendant must
allege that a colorable claim of error exists in the missing
portion of the trial transcript as a prerequisite to relief.
The majority affirms the court of appeals, holding: (1) the
Perry rule applies to cases where no trial transcripts exist,
see majority op., ¶¶3, 38, 51; (2) Pope is at fault because he
"sat on his rights for 14 months" before seeking to restore
them, id., ¶¶41-42; (3) Pope is to blame for the unavailability
of the transcripts, id., ¶¶3, 39, 50-51; and (4) after being
deprived of his constitutional right to effective assistance of
counsel for his direct appeal, Pope bore the burden of
successfully navigating the justice system pro se and his
failure to do so sooner than "14 months" after sentencing means
he forfeited all of his rights, id., ¶¶42-44, 46, 50.
¶56 Compounding the calamity of errors that deprived Pope
of his direct appeal, the majority casts aside constitutional
and statutory rights, misapplies cases, and wrongfully blames
Pope for his attorney's errors. Even though a jury found Pope
guilty of two counts of first-degree homicide as party to a
4
No. 2017AP1720-CR.rgb
crime, he nevertheless retains the constitutional and statutory
rights our laws secure. Cruz v. Beto, 405 U.S. 319, 321 (1972)
("Federal courts sit . . . to enforce the constitutional rights
of all 'persons,' including prisoners[.]"); Turner v. Safley,
482 U.S. 78, 84 (1987) ("[P]risoners retain the constitutional
right to petition the government for the redress of
grievances . . . and they enjoy the protections of due
process[.]" (internal citations omitted)).
¶57 The Constitution guarantees every criminal defendant
the right to an attorney for an obvious reason. Attorneys are
properly trained in the law and know how to navigate the court
system. Nevertheless, the majority absurdly holds convicted
prisoners to the same standards as trained lawyers. The
Constitution grants criminal defendants the right to a
meaningful direct appeal, aided by counsel. The majority pays
lip service to these rights but then violates them. According
to this court, if appointed counsel abandons his client and
forfeits his appeal, then the criminal appellant must proceed on
his own, without any counsel at all. If he does not follow the
rules closely enough or within whatever unspoken period of time
the court believes appropriate for deciphering the rules of
appellate procedure, the appellant is simply out of luck. The
Constitution does not countenance such a perversion of the
criminal justice system.
¶58 The Constitution compels the opposite conclusions the
majority reaches: (1) Perry cannot apply when the entire trial
transcript is unavailable; (2) Pope did not sit on his rights;
5
No. 2017AP1720-CR.rgb
(3) Pope is not to blame for the unavailability of the
transcripts; and (4) the law does not impose on an imprisoned
convict the burden to pursue his own direct appeal pro se
because the Constitution guarantees him an effective appellate
counsel and a meaningful appeal. I would reverse the decision
of the court of appeals and reinstate the circuit court's
decision; therefore, I respectfully dissent.4
I
¶59 After the circuit court sentenced Pope to two life
terms, Pope went to prison with the belief that his trial
attorney would initiate his direct appeal. As Pope would later
learn, his attorney not only ignored him, but abandoned him
completely. Pope signed a form indicating he wanted to pursue
postconviction relief and his attorney assured Pope he would
take care of filing the Notice of Intent, which would have put
This is not a case where a defendant manipulated the
4
system to secure a new trial. Pope signed the SM-33 form on the
day he was sentenced stating he would seek relief from the
judgment of conviction. Not surprisingly, Pope counted on his
counsel to initiate his direct appeal as counsel promised to do.
If Pope had instructed his counsel not to file the Notice of
Intent to Pursue Postconviction Relief and then intentionally
let the 10-year time period for trial transcript retention
expire before seeking relief, he would clearly not be entitled
to relief. That is not what happened in this case and the
majority's assertion that "there would be nothing to stop
criminal defendants from sitting on their hands for ten years"
in order to get a new trial is absurd. Majority op., ¶36. Our
statutory procedures obviously foreclose such tactics. Surely
the majority does not mean to insinuate that criminal defense
lawyers would intentionally violate appellate procedures or
purposefully abandon their clients in order to secure a new
trial——the only scenarios under which the majority's fear of the
appellate floodgates opening could possibly come to fruition.
6
No. 2017AP1720-CR.rgb
the direct appeal in motion. Had Pope's attorney filed that
form, Pope would have received his direct appeal and this case
would have come to an end. However, Pope's attorney, Michael
Backes, did not file that form, nor did he respond to the two
letters Pope wrote inquiring about his appeal. Pope tried
repeatedly to reach Backes by phone, as did Pope's mother, to
ask about the appeal.
¶60 The record suggests that after a year of waiting, Pope
gave up on Backes. In August 1997, he wrote to the Wisconsin
State Public Defender's ("SPD") office asking about his appeal.
The SPD responded that it had not received any paperwork for his
appeal. Apparently, Pope then asked the SPD to appoint
appellate counsel to represent him because on September 8, 1997,
the SPD acknowledged Pope's request for counsel and advised that
no Notice of Intent was filed in his case and if Pope wanted an
SPD lawyer, Pope would have "to take some steps to reinstate
your appeal rights." The SPD explained:
The applicable appellate rules require the filing
of a Notice of Intent to Pursue Postconviction Relief
in the trial court within 20 days of sentencing. When
that notice is timely filed, appellate counsel is
appointed, transcripts are ordered and the appeal
proceeds in the normal fashion. If the Notice of
Intent is not filed within 20 days of sentencing, it
is necessary to ask the court of appeals to extend the
time by filing a motion.
The State Public Defender is willing to appoint
counsel to represent you on appeal if the court of
appeals extends the time for filing the Notice of
Intent in your case. I have no idea why the Notice
was not timely filed and therefore you are going to
have to explain the reason to the court in a motion to
extend the time for filing the Notice.
7
No. 2017AP1720-CR.rgb
The SPD enclosed two forms to help Pope file his motion seeking
reinstatement of his direct appeal.
¶61 Within a week of receiving the SPD letter, Pope filed
a pro se motion asking the court of appeals "to reinstate his
(appellant's) rights to direct appeal to his criminal
conviction." Pope explained that his trial counsel told Pope he
"would file a notice of appeal and ensure that the appellant's
case was reviewed by the state court of appeals," but Pope "lost
all communication with attorney Backes, and no notice of appeal
has been filed and no appellate attorney has been appointed."
Pope further explained he was "unfamiliar" with how to initiate
an appeal "due to [his] lack of knowledge." Nine days later, on
September 25, 1997, the court of appeals perfunctorily denied
Pope's motion with a single paragraph of analysis and (as the
majority acknowledges) a miscounting of the extent of Pope's
delay:
Even assuming the truth of Pope's representations
regarding the performance of trial counsel, Pope has
failed to provide the court with a sufficient
explanation as to why, when counsel failed to initiate
postconviction proceedings timely, he did not attempt
to commence postconviction proceedings on his own.
The court can see nothing in the motion that would
warrant a fifteen-month delay in commencing
postconviction proceedings. Because no good cause is
shown,
IT IS ORDERED that the motion to extend the
deadline for filing a notice of intent to pursue
postconviction relief is denied.
(Emphasis added). As the majority notes, less than 14 months
lapsed between sentencing and the filing of Pope's pro se motion
8
No. 2017AP1720-CR.rgb
to extend the deadline for filing the Notice of Intent.
Majority op., ¶11 n.5.
¶62 After the court of appeals' denial, all subsequent
attempts by Pope to restore his direct appeal rights were
rejected until he filed a petition for writ of habeas corpus in
July 2014.5 The court of appeals sat on the habeas petition
until March 2015 when it ordered the State to respond to Pope's
petition. In November 2015, the court of appeals sent Pope's
petition to the circuit court with directions to hold a
factfinding hearing within 90 days. Notably, the court of
appeals' delay between the filing of the habeas petition and the
remand to the circuit court for a hearing was 16 months——two
months longer than Pope's delay while he waited for his attorney
to initiate an appeal.
5 In October 1997, Pope filed a Wis. Stat. § 974.06 motion
alleging his attorney rendered ineffective assistance. The
circuit court denied the motion, saying it was bound by the
court of appeals' September 25, 1997 order. Pope filed a notice
of appeal in November 1997 and a document construed to be a
request for waiver of transcript fees; the court of appeals
remanded to the circuit court to determine whether Pope was
entitled to free transcripts. The circuit court ruled Pope
failed to allege any meritorious claim so he was not entitled to
free transcripts. In February 1999, the court of appeals denied
Pope's motion to extend the time to file a direct appeal,
referring to its earlier order. In March 1999, the court of
appeals summarily affirmed the circuit court denial of the
§ 974.06 motion concluding that Pope waived his appeal. Pope
petitioned this court for review and we denied the petition on
the ground that it was untimely. In June 2003, Pope filed
another motion seeking to extend time, asserting he did not
waive his right to direct appeal with counsel but he was
completely denied direct appeal counsel. The court of appeals
denied Pope's motion as "settled."
9
No. 2017AP1720-CR.rgb
¶63 Despite the court of appeals order for the factfinding
hearing to take place within 90 days, it did not. In February
2016, Pope notified the court of appeals that the circuit court
had not complied with the 90-day order. In March 2016, the
circuit court sought an extension of time to hold the hearing,
which was granted. The factfinding hearing finally occurred in
April 2016——21 months after Pope filed his motion.
Paradoxically, the majority insists Pope's 14-month delay was
unreasonable, see majority op., ¶¶12, 41, 42, 50. In May 2016,
the circuit court made findings based on the testimony at the
hearing: (1) Pope signed the SM-33 form indicating his desire
to file a direct appeal; (2) Backes never filed the Notice of
Intent and had other disciplinary actions regarding improper
handling of postconviction matters; (3) Pope had been attempting
to reinstate his direct appeal rights since 1996;6 and (4) Pope
was credible about the efforts he took to contact Backes.
¶64 In August 2016, the State entered into a Stipulation
with Pope that it would jointly move the court of appeals to
reinstate Pope's direct appeal rights if Pope dismissed his
habeas petition. Pope agreed to do so, and in September 2016,
6 The majority mistakenly dismisses this factual finding
based on the "law of Pope's case" from the 1997 court of appeals
decision. Majority op., ¶16 n.9. The majority apparently fails
to recognize that the 1997 court of appeals decision no longer
stands as the "law of the case" because the 2015 court of
appeals decision sent Pope's case to the circuit court for
factfinding following the filing of his habeas petition. This
factual finding is the law of the case unless an appellate court
says it was clearly erroneous, which no court, including this
one, has done.
10
No. 2017AP1720-CR.rgb
the court of appeals ordered Pope's direct appeal rights
reinstated.
¶65 At this point it appeared Pope would finally get the
direct appeal the Constitution guarantees him and which he had
been trying to secure for more than 20 years. However, when his
appellate counsel discovered that all trial transcripts had been
destroyed and Backes had no file or memory of the case, the only
relief available to Pope was to move for a new trial.
¶66 The circuit court found that without a transcript,
there could be no meaningful direct appeal and the only option
was to grant a new trial. The State appealed the decision and
the court of appeals reversed. It held that Perry applied and
because Pope did not allege any errors to be found in the
missing "part" of the transcript (which was actually the entire
trial), he was not entitled to relief. Pope petitioned for
review, which this court granted.
II
¶67 The majority errs in extending Perry to cases where
the entire trial transcript is unavailable. In Perry, this
court adopted a procedure to use when part of the trial
transcript is missing. 136 Wis. 2d at 104-05. Initially, the
procedure had been used in a court of appeals case, State v.
DeLeon, 127 Wis. 2d 74, 80-82, 377 N.W.2d 635 (Ct. App. 1985).
Under the Perry/DeLeon procedure: (1) the defendant must allege
a colorable claim of error in the missing part of the
transcript; (2) if the defendant does so, then the circuit court
must determine whether the missing portion can be reconstructed;
11
No. 2017AP1720-CR.rgb
(3) if reconstruction is impossible, the circuit court must
order a new trial but if reconstruction is possible, the parties
may collaborate on reconstructing the record, which the circuit
court must then approve after resolving any disagreements
between the parties. Perry, 136 Wis. 2d at 100-102; DeLeon, 127
Wis. 2d at 80-82.
¶68 The Perry/DeLeon procedure cannot be applied in a case
with no trial transcripts, a situation neither case reflects or
contemplates. Both Perry and DeLeon involved cases with only
small portions of missing transcript. In DeLeon, merely fifteen
minutes of the transcript was missing, the error was discovered
not long after the sentencing, and the case was tried to the
court——not a jury.7 127 Wis. 2d at 76. Under those
circumstances, the details of DeLeon's trial were fresh in
everyone's minds. More importantly, counsel had other portions
of the record to review in order to formulate colorable claims
of error. Following the procedure DeLeon adopted prevents
insignificant or harmless errors from triggering a new trial.
"[N]ot all deficiencies in the record nor all inaccuracies
require a new trial." Perry, 136 Wis. 2d at 100.
¶69 In Perry, substantial portions of two mornings of the
nine-day trial were missing. 136 Wis. 2d at 95-96. The circuit
court heard Perry's motion on the missing transcripts
DeLeon suggests that when the time between trial and
7
discovery of the missing transcript is "several months," an
accurate reconstruction of the record "may be the exception
rather than the rule." State v. DeLeon, 127 Wis. 2d 74, 82, 377
N.W.2d 635 (Ct. App. 1985).
12
No. 2017AP1720-CR.rgb
approximately one year after the trial. Id. at 97.
Nevertheless, the circuit court that presided over the trial
remembered it and found the transcripts that existed
"substantially cover[ed] all of the proceedings as [it]
recall[ed] them." Id. Nevertheless, this court reversed,
granting Perry a new trial. Id. at 104-109. Although this
court adopted and applied the DeLeon procedure, it identified
significant problems precluding meaningful appellate review when
the missing transcripts represented one-eighth of the trial and
established the following principles the majority in this case
altogether ignores:
 "[T]he right of appeal to the court of appeals is
constitutionally guaranteed in the State of Wisconsin"
and "the appeal [must] be a meaningful one." Id. at 98-
99.
 "In order that the right be meaningful, our law requires
that a defendant be furnished a full transcript——or a
functionally equivalent substitute[.]" Id. at 99.
 "The usual remedy where the transcript deficiency is such
that there cannot be a meaningful appeal is reversal with
directions that there be a new trial." Id. (citations
omitted).
¶70 In Pope's case, the majority misapplies Perry
entirely. The factors that led this court to grant Perry a new
trial are even more compelling in Pope's case. In Perry, one
year passed since the trial; in this case, Pope's trial occurred
more than twenty years ago. Perry had new counsel on appeal,
13
No. 2017AP1720-CR.rgb
making the transcript appellate counsel's "principal guide." In
this case, Pope's appellate counsel has no guide whatsoever. In
both Perry and this case, trial counsel was unable to alert
appellate counsel to possible errors that may have occurred at
trial. However, Perry's colorable claim arose from an assertion
of prosecutorial misconduct, which could be readily resolved
using existing parts of the record. Perry was able to assert
that he needed the prosecutor's closing argument, which was
within the missing part. 136 Wis. 2d at 107. In contrast, Pope
and his appellate counsel are completely precluded from
identifying any colorable claim because they have no transcripts
to review.
¶71 Finally, this court in Perry recognized that the
"context of the entire record" is important in assessing
"whether error is prejudicial or harmless." Id. at 105. In
Pope's case, there is no record whatsoever from which to glean
any context; as a result, appellate counsel is totally hamstrung
in identifying any error, much less assessing whether a
particular error may be prejudicial or harmless. Most
significantly, the majority in this case disregards "the
absolute and constitutional necessity for providing a criminal
defendant a transcript that will make possible a meaningful
appeal." Id.
¶72 The majority mistakenly interprets this court's
statement in Perry that the DeLeon procedure applies to a "broad
spectrum of cases" to mean the Perry/DeLeon procedure applies
even when NO transcripts exist and when counsel's deficient
14
No. 2017AP1720-CR.rgb
performance delays the direct appeal for more than two decades
post-trial. Majority op., ¶¶30-32. Neither Perry or DeLeon
said anything close to the majority's construction of them.
"Broad spectrum" cannot possibly encompass an appeal like
Pope's, finally permitted more than 20 years post-trial, absent
any transcript whatsoever for appellate counsel to review. The
majority disregards DeLeon's reliance on Cole v. United States,
478 A.2d 277 (D.C. 1984), which shows the DeLeon procedure was
never intended to apply in cases with no available transcripts.
In Cole, two days of trial transcripts were almost entirely
reconstructed. The Cole court nevertheless deemed them
inadequate: "We are convinced that under the circumstances of
this case, the supplemental record on appeal lacks the
completeness and the reliability necessary to protect
appellant's right to pursue an appeal and this court's
obligation to engage in meaningful review."8 Id. at 287.
¶73 Pope's case stands in stark contrast to Perry. With
no trial transcripts for Pope's appellate attorney to review,
determining whether any claim of error exists is impossible.
Because Pope's trial was more than 20 years ago, the memories of
Other jurisdictions recognize the indispensability of the
8
transcript. See, e.g., Johnson v. State, 805 S.E.2d 890, 898
(Ga. 2017) ("An appeal is Johnson's chance to point to the
record and overcome those presumptions [that a trial court
followed the law and that trial counsel rendered adequate
assistance]. He can only do that with an adequate transcript.
In this case, where the whole original verbatim transcript of
his trial is lost and the narrative recreation is manifestly
inadequate, Johnson has not been given a fair opportunity to
identify any trial errors and resulting harm or deficient
performance by counsel and resulting prejudice.").
15
No. 2017AP1720-CR.rgb
those who participated are either substantially faded or
nonexistent. If only portions of a transcript are missing, the
appellant at least has some transcripts to review to allow him
to meet the burden. Not so here. The docket in this case shows
a total of 21 witnesses and 67 exhibits introduced during a
four-day trial. If two days of missing transcripts in Cole and
something less than two mornings of missing transcripts in Perry
were inadequate for a meaningful appeal, then the absence of any
portion of the four-day trial transcript in Pope's case compels
the same conclusion and warrants a new trial, as in Perry. The
majority's denial of Pope's rights lacks any support under the
very law on which the majority bases its decision. In fact, the
controlling cases contradict the majority's conclusions.
¶74 This court in Perry recognized the overriding
importance of the trial transcript, something the majority in
this case utterly ignores:
[T]he most basic and fundamental tool of [an appellate
advocate's] profession is the complete trial
transcript, through which his trained fingers may leaf
and his trained eyes may roam in search of an error, a
lead to an error, or even a basis upon which to urge a
change in an established and hitherto accepted
principle of law.
Perry, 136 Wis. 2d at 106 (quoting Hardy v. United States, 375
U.S. 227, 288 (1964) (Goldberg, J., concurring)). "[W]here
counsel on appeal is new to the case, it is the transcript which
must be his principal guide." Perry, 136 Wis. 2d at 105
(emphasis added). Perry noted the handicap under which new
counsel operates because "[r]ecollections and notes of trial
counsel . . . are apt to be faulty and incomplete." Id. at 106
16
No. 2017AP1720-CR.rgb
(quoted source omitted). "There is no way appellate counsel can
determine if there is arguable merit for the appeal without
either having been the trial attorney or reading the
transcript." In the Interest of J.D., 106 Wis. 2d 126, 132, 315
N.W.2d 365 (1982) (emphasis added).
¶75 The majority neglects to explain how Pope's appellate
counsel could possibly identify a single meritorious issue for
the appeal without having been the trial attorney and with no
transcript to review. Applying the procedures of Perry and
DeLeon in cases with no trial transcripts defies logic and
denies a defendant his constitutional right to a meaningful
direct appeal. Requiring Pope to allege a colorable claim with
no transcripts from the trial constitutes a "failure of the
appellate process which prevents a putative appellant from
demonstrating possible error" and "a constitutional deprivation
of the right to appeal." See Perry, 136 Wis. 2d at 99.
¶76 The majority says "[t]here is nothing exceptional
about requiring the appellant to assert a facially valid claim
of arguably prejudicial error." Majority op., ¶33. This is
certainly true when an appellant has been afforded the effective
assistance of counsel for a direct appeal and the trial
transcripts——the primary guide for asserting error on appeal——
are available. However, when an appellant has been deprived of
those constitutionally-guaranteed rights, requiring him to
assert a facially valid claim of arguably prejudicial error
without any basis for doing so imposes a condition no appellant
could meet. The law affords Pope a new trial but the majority
17
No. 2017AP1720-CR.rgb
denies him one, thereby perpetuating the trampling of his
constitutional rights that began with his counsel abandoning him
and the court of appeals looking the other way.
III
¶77 The majority justifies denying Pope a meaningful
appeal by blaming him for the results of his attorney's
inaction. The majority inaccurately concludes that Pope "sat on
his rights for 14 months." Majority op., ¶¶41-42. The record
itself refutes this statement. First, the circuit court found
that Pope has been trying to reinstate his appeal rights since
1996. This finding is not clearly erroneous. Pope wrote and
called his trial counsel multiple times. Pope's mother called
Backes multiple times. Perhaps Pope believed Backes initiated
the appeal as he promised to do and Pope simply waited to hear
the results. Appeals are not resolved overnight and waiting a
year before taking action under Pope's circumstances was not
unreasonable. The record shows that in August 1997, Pope
reached out to the SPD to ask about his appeal. Once the SPD
advised Pope what to do, he immediately took action. The
majority ignores this record in concluding that Pope "sat on his
rights for 14 months."
¶78 Regardless, any missteps Pope made attempting to
assert his direct appeal rights resulted from his trial
counsel's ineffective assistance. If Backes had filed the
Notice of Intent as he promised he would, Pope's appeal would
have proceeded in a timely manner with the assistance of
appointed appellate counsel. When a "procedural default is the
18
No. 2017AP1720-CR.rgb
result of ineffective assistance of counsel, the Sixth Amendment
itself requires that responsibility for the default be imputed
to the State." Coleman v. Thompson, 501 U.S. 722, 754 (1991)
(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). The
Seventh Circuit ably explained why counsel on direct appeal is
so important:
Yet one principal reason why defendants are entitled
to counsel on direct appeal is so that they will not
make the kind of procedural errors that unrepresented
defendants tend to commit. The Constitution does not
permit a state to ensnare an unrepresented defendant
in his own errors and thus foreclose access to
counsel.
Betts, 241 F.3d at 596. The majority ignores these cases in
faulting and then penalizing Pope for procedural missteps. The
deprivation of constitutionally-guaranteed counsel on direct
appeal is properly imputed to the State.
IV
¶79 The majority makes a fundamental factual error that
undermines the foundation of the entire opinion: not only does
the majority base its "outcome" on "Pope's inaction for 14
months"9 the majority blames Pope for the destruction of the
trial transcripts. The majority says that by waiting until
September 1997 to file his first motion, Pope caused the
unavailability of the trial transcripts. This statement is
patently false. Pope's first motion was filed in 1997 and the
trial transcripts did not dematerialize until 2006, by operation
of Supreme Court Rule 72.01(47). Even if Pope waited until 2005
9 Majority op., ¶12.
19
No. 2017AP1720-CR.rgb
to file his first motion, he would not have caused the
unavailability of the transcripts.
¶80 Blame for the transcript destruction lies with the
court system and the State. See SCR 72.01(47) (requiring that
court reporter notes "shall be retained" for "10 years after the
hearing"). If the court of appeals had realized in September
1997 that Pope had been deprived of his constitutional rights to
effective counsel and a direct appeal, it would have granted
Pope's motion and the SPD would have provided appellate counsel.
Transcripts would have been ordered in 1997 and available for
Pope's direct appeal. The State could have apprehended the same
in 1997 and advised the court of appeals to grant Pope's motion.
If the courts or the State grasped the deprivation of Pope's
constitutional rights during any of Pope's multiple attempts to
restore his direct appeal rights, the transcripts could have
been obtained. Instead, the courts and the State overlooked
Pope's rights until it was too late. It is the court system's
errors that caused the unavailability of the transcripts, not
the filing of Pope's first motion 14 months after sentencing and
nine years before the records retention policy applicable to
court reporters resulted in the destruction of the transcripts.
¶81 Inexplicably, the majority repeatedly faults Pope for
not ordering the transcript within the 10 years following his
trial. Majority op., ¶¶17 n.10, 44, 46. Not surprisingly, the
majority neglects to explain how Pope was supposed to identify
or track down the correct court reporter, or pay the substantial
fees necessary to obtain a four-day trial transcript, or know
20
No. 2017AP1720-CR.rgb
that the court reporter's notes would be destroyed 10 years
after the trial unless he orders the transcript, all without the
assistance of counsel. His trial counsel's failure to fulfill
his obligations to Pope, who was constitutionally entitled to
receive the transcript along with the assistance of counsel to
pursue his direct appeal, bears the initial fault for the delays
in this case. The court system's subsequent failures to
recognize Pope's constitutional rights to counsel, a direct
appeal, and a transcript, caused the destruction of the trial
transcripts, not Pope.
¶82 Because Pope was not responsible for the
unavailability of the transcripts, he should not bear the
consequences of their destruction. When "the record is lost
through no fault of the aggrieved party, that party should not
be made to bear the burden of the loss." Perry, 136 Wis. 2d at
111 (quoting DeLeon, 127 Wis. 2d at 77); see also United States
v. Ullrich, 580 F.2d 765, 773 n.13 (5th Cir. 1978). The
majority flouts the law by imposing the consequences of the lost
transcripts on Pope despite the fault plainly lying elsewhere.
V
¶83 Despite the purely procedural nature of Pope's appeal,
the majority nevertheless conveys in excruciating detail the
facts underlying Pope's conviction, filling its "Factual
Background" section with allegations pulled from the Complaint,
explaining it does so because there is no trial transcript. It
is improper for this court to recast allegations from the
Complaint as "facts" rather than citing evidence actually
21
No. 2017AP1720-CR.rgb
introduced at trial. Of course, neither this court nor Pope can
recount any evidence from the trial because the trial
transcripts do not exist. The Complaint cannot accurately
substitute for what happened at trial. Because this case was
tried to a jury, it cannot be determined whether what was
alleged in the Complaint was entered into evidence or whether
witnesses testified differently or whether objections to
particular questions soliciting the facts the majority recites
were sustained.
¶84 The majority speculates regarding what may have been
presented as evidence during the trial, which illustrates the
impossibility of the task the majority imposes on Pope. Without
a transcript, the majority invites Pope and other similarly
situated defendants to fabricate colorable claims of error. At
least the majority could base its factual recitation on the
Complaint. If the Complaint had been destroyed along with the
transcripts, the majority would not have been able to write
about any facts at all. Pope has no record whatsoever on which
to base an asserted colorable claim of error.
VI
¶85 Analogizing Pope's case to the waiver and forfeiture10
situations recognized in State v. Escalona-Naranjo,11 Wis. Stat.
"Although cases sometimes use the words 'forfeiture' and
10
'waiver' interchangeably, the two words embody very different
legal concepts. 'Whereas forfeiture is the failure to make the
timely assertion of a right, waiver is the 'intentional
relinquishment or abandonment of a known right.'" State v.
Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612 (quoting
United States v. Olano, 507 U.S. 725, 733 (1993)).
11 185 Wis. 2d 168, 173, 517 N.W.2d 157 (1994).
22
No. 2017AP1720-CR.rgb
§ 974.06 cases, or a defendant's failure to respond in a no-
merit appeal demonstrates the majority's profound
misunderstanding of criminal appellate procedure. Pope's case
is markedly different from each of those situations because Pope
asked for but never received his constitutionally guaranteed
direct appeal. The forfeiture rules established in Escalona-
Naranjo and governing § 974.06 cases typically apply when the
defendant already received his constitutional right to his
direct appeal or initially decided not to appeal but later
changed his mind. The forfeiture rules operate to foreclose
postconviction proceedings initiated after a direct appeal or
after a convicted defendant decided to forgo an appeal
altogether. Those defendants already had an opportunity to
raise issues on appeal. Pope never did.
¶86 Likewise, Wisconsin's no-merit procedure supplies no
support for this court's deprivation of Pope's constitutional
rights. The no-merit procedure is triggered when appellate
counsel reviews a defendant's case and concludes that no
meritorious issues exist. See Wis. Stat. § 809.32(1)(a). Even
then, a defendant has the right to file a response to his
attorney's no-merit report and assert any issues he thinks do
have merit——and the defendant is entitled to a copy of the
transcripts in order to do so. § 809.32(1)(b). Even if the
defendant does not file a report in response, his attorney must
file a no-merit report if the defendant does not consent to
closing the file without one. § 809.32(1)(b). As an additional
safeguard for the defendant, whenever a no-merit appeal is
23
No. 2017AP1720-CR.rgb
taken, the court of appeals must independently review the record
to decide whether it agrees with the appellate counsel's no-
merit determination. See Anders v. California, 386 U.S. 738,
744-45 (1967); State v. Fortier, 2006 WI App 11, ¶21, 289
Wis. 2d 179, 709 N.W.2d 893. In other words, even when an
appellate attorney thinks there are no arguable claims of error
to appeal, a defendant's constitutional right to a meaningful
direct appeal is honored and protected——by the court.
¶87 In State ex rel. Flores v. State, 183 Wis. 2d 587, 516
N.W.2d 362 (1994), the SPD-appointed appellate counsel reviewed
Flores' case and concluded it had no merit. 183 Wis. 2d at 607-
608, 618. She met with Flores and told him he had no issues for
appeal and then closed the file. Id. at 618-19. This court
held that Flores was adequately informed about his rights to
appeal and the no merit procedure because he had received a
written packet regarding the appellate process. Id. at 614.
This court held Flores waived his right to appeal because he did
not tell his attorney he disagreed with her about the non-
meritorious nature of his case or that he wanted her to file a
no merit report, and he did not object to her closing the file.
Id. at 618-19. Significantly, we said in Flores "[t]his is not
a case in which counsel simply abandoned her client." Id. at
618. In contrast, Pope's counsel did abandon him after Pope
made it clear he wanted to appeal. Pope never received the
appellate information packet from the SPD because his counsel
never filed the Notice of Intent, which would have put Pope on
the SPD's radar. Pope told his counsel he wanted to appeal and
24
No. 2017AP1720-CR.rgb
his counsel said he would take care of it. Trusting his counsel
to do exactly what he promised to do cannot be reasonably
construed as either a forfeiture or a waiver of his direct
appeal.
VII
¶88 "The hard fact is that sometimes we must make
decisions we do not like. We make them because they are right,
right in the sense that the law and the Constitution, as we see
them, compel the result." Texas v. Johnson, 491 U.S. 397, 420-
21 (1989) (Kennedy, J., concurring). Undoubtedly many will
celebrate——indeed, be relieved by——the result the majority
reaches in this case. A person convicted of double homicide
remains confined. However, the law does not support the
majority's decision in this case; the law contradicts it.
Achieving a preferred result should never influence judicial
interpretations of the law and can never override constitutional
rights. The price of the majority's decision in this case is
paid not just by Pope, but by all of the citizens of this State.
Pope's conviction stands, unreviewed, at the expense of
constitutional guarantees designed by the framers to protect the
innocent, not free the guilty. While some may be tempted to
deny defendants their fundamental constitutional rights when
they have been convicted of heinous crimes, doing so erodes the
constitutional rights of all citizens——including the innocent——
by leaving their enforcement to the discretionary impulses of
the government at the expense of individual liberty.
25
No. 2017AP1720-CR.rgb
¶89 When counsel's inexcusable error deprives a criminal
defendant of his right to an appeal, the court of appeals should
promptly reinstate direct appeal rights. The Constitution
commands this. If the court of appeals had granted Pope's first
motion, his direct appeal would have proceeded with the
assistance of an appellate public defender. In most cases, no
prejudicial error is found and judgments of conviction are
affirmed. Properly handled, this case would have been over for
Pope and for the victims' families decades ago, affording the
latter some closure and finality. The court of appeals' early
misstep generated 23 years of battles, filings, court hearings,
and uncertainty. The people of Wisconsin should be troubled by
any conviction or imprisonment that stands at the expense of
fundamental constitutional rights. Imprisoning a person without
following the rule of law opens the door for the sort of
governmental abuses against which the founders sought to
insulate the citizens of the United States. The constitutional
rights of Wisconsin's citizens cannot be conditioned on the
competency of counsel. Because the majority acquiesces to the
deprivation of constitutional rights caused solely by the errors
of appointed counsel, I respectfully dissent.
¶90 I am authorized to state that Justices ANN WALSH
BRADLEY and REBECCA FRANK DALLET join this dissent.
26
No. 2017AP1720-CR.rgb
1