936 N.W.2d 606
Wis.2019Background
- In 1996 Robert J. Pope Jr. was convicted by a jury of two counts of first‑degree intentional homicide and sentenced to life without parole.
- Trial counsel failed to file the required postconviction "notice of intent" within 20 days after sentencing; Pope and counsel had signed a form indicating Pope wanted postconviction relief.
- Pope delayed (~14 months) before moving pro se in 1997 to extend the filing period; the court of appeals denied that motion for lack of good cause, and no direct appeal was timely prosecuted.
- After long, intermittent litigation, the court of appeals reinstated Pope’s direct‑appeal rights by stipulation in 2016; when appellate counsel then ordered trial transcripts, the court reporters no longer had the 1996 jury trial notes (SCR 72.01(47) requires retention for 10 years).
- The circuit court granted a new trial because no trial transcript existed; the court of appeals reversed, applying State v. Perry/DeLeon; the Wisconsin Supreme Court affirmed: Perry/DeLeon applies even when the entire transcript is missing and Pope had the initial burden to assert a facially valid claim of arguable prejudice, with no exception where the appellant’s delay caused the loss.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Pope) | Held |
|---|---|---|---|
| Whether courts should presume prejudice when the entire trial transcript is unavailable | No; do not presume prejudice—apply Perry/DeLeon threshold requiring a facially valid claim of arguably prejudicial error | Yes; full transcript loss precludes counsel from identifying issues so prejudice should be presumed | No presumption. Perry/DeLeon threshold applies even when the entire transcript is missing |
| Whether the Perry/DeLeon threshold (facially valid claim of arguable error) applies when the whole transcript is gone | Threshold still required to trigger reconstruction/new‑trial process | Threshold is impractical when counsel has no transcript to identify errors | Threshold applies; defendant must allege a facially valid claim to trigger reconstruction/new trial |
| Whether an exception to Perry/DeLeon is required when transcript unavailability results from the appellant’s delay | If appellant caused loss, no special exception — normal Perry/DeLeon applies | An exception should apply here because counsel’s earlier failure caused deprivation of appeal rights and later loss of transcript | No exception. Court refuses to create rule that rewards delay; here loss was attributable in part to Pope’s failure to timely secure transcripts or timely pursue extension |
| Whether circuit court properly granted a new trial because no transcript existed | New trial improper absent facially valid claim and reconstruction effort under Perry | New trial appropriate because no transcript made meaningful appeal impossible | Court of appeals and Supreme Court: circuit court erred to the extent it ordered a new trial without requiring Pope to make a facially valid claim and follow Perry/DeLeon; affirmation of court of appeals |
Key Cases Cited
- State v. Perry, 136 Wis.2d 92 (Wis. 1987) (establishes procedure when trial transcript is incomplete: facially valid claim → attempt reconstruction → new trial if reconstruction impossible)
- State v. DeLeon, 127 Wis.2d 74 (Ct. App. 1985) (adopts reconstruction methodology and places initial burden on appellant to allege facially valid claim of error)
- Cole v. United States, 478 A.2d 277 (D.C. 1984) (reconstruction may be inadequate when supplemental record lacks completeness and reliability)
- State v. Escalona‑Naranjo, 185 Wis.2d 168 (Wis. 1994) (rules on forfeiture of issues not timely raised on direct appeal and limits on successive collateral attacks)
- Roe v. Flores‑Ortega, 528 U.S. 470 (U.S. 2000) (attorney has duty to file requested appeal; failure can lead to presumption of prejudice)