State v. Sutton
2012 WI 23
Wis.2012Background
- Defendant Sutton was convicted of misdemeanor retail theft after a bench trial in Milwaukee County.
- Court of Appeals affirmed the conviction, accepted a no-merit report, relieved counsel, and denied remand to challenge a jury-trial waiver.
- The court suggested relief could be sought under Wis. Stat. § 974.06, despite unresolved jurisdictional questions.
- Three key issues are raised: deficient trial waiver colloquy, noncustodial status during postconviction, and a defective postconviction motion by counsel.
- This Court reverses the Court of Appeals, holding § 974.06 is unavailable to Sutton and remands for new/postconviction proceedings in circuit court.
- The remedy is reinstate direct appeal rights and allow counsel to file a new or amended postconviction motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is § 974.06 relief available when defendant is not in custody? | Sutton; no-custody status should not bar relief if waiver issues persist. | Court of Appeals erred by treating § 974.06 as available to non-custodial defendant. | § 974.06 not available; defendant not in custody. |
| Should the matter be remanded to allow new or amended postconviction motion? | Remand is appropriate to cure defective claims and pursue waiver issue. | Remand would permit testing of waiver and counsel ineffectiveness. | Remand to circuit court for new/amended postconviction motion and reconsideration. |
| Did the no-merit procedure improperly foreclose review of a potentially meritorious waiver issue? | No-merit process should not bar potential merits when counsel misconduct is involved. | Court improperly relied on no-merit to avoid addressing waiver defects. | Court of Appeals erred by relying on no-merit to foreclose merits review; remand proper. |
| Can ineffective assistance of postconviction counsel be addressed, given the procedural posture? | Ineffective assistance claims should be reviewable upon remand and proper briefing. | Such claims are premature absent proper jurisdiction and preserved issues. | Remand to permit proper briefing and consideration of postconviction counsel's effectiveness. |
| What is the proper vehicle for relief given missteps in the waiver process and postconviction filings? | Habeas or circuit-court reconsideration could be viable routes if remanded. | Direct appellate avenues are limited; remedy should be through remand for proper proceedings. | Remand to enable an appropriate postconviction proceeding and potential direct-appeal remedies. |
Key Cases Cited
- State v. Anderson, 249 Wis. 2d 586 (Wis. 2002) (defines required personal colloquy for jury waiver)
- State v. Grant, 230 Wis. 2d 90 (Wis. Ct. App. 1999) (procedural framework for postconviction relief; incorporation into 974.06 analysis)
- State v. Bangert, 131 Wis. 2d 246 (Wis. 1986) (unlawful-plea procedure framework comparable to waiver analysis)
- State ex rel. Panama v. Hepp, 2008 WI App 146 (Wis. Ct. App. 2008) (appellate discretion to address unpreserved issues in interests of justice)
- State v. Allen, 328 Wis. 2d 1 (Wis. 2010) (discusses scope of review in no-merit contexts and preserved issues)