¶ 1. This case presents a question that has surfaced with some frequency in motion and writ practice before this court: Must an attorney appointed to represent an indigent defendant in post-conviction proceedings move for court permission to withdraw from representation after the attorney concludes that his or her client has agreed to have the attorney "close the file" without filing a postconviction motion, appeal, or no-merit report? A closely related second question is whether appointed postconviction counsel renders ineffective assistance by failing to obtain court permission to withdraw or otherwise seek a judicial determination that the defendant has knowingly waived either the right to appeal or the right to counsel? We conclude that the answer to these questions is no and that, given the supreme court's express declination to so order in
State ex rel. Flores v. State,
BACKGROUND
¶ 2. A person convicted in Wisconsin of committing a crime has a constitutionally guaranteed right to appeal his or her conviction to this court. Wis. Const. art. I, § 21(1);
State v. Perry,
¶ 3. Before summarizing the background facts and procedural posture of this case, we briefly review the provisions for postconviction proceedings in criminal cases as presently set forth in the rules of appellate procedure. If a defendant wishes to pursue "postconviction relief' (i.e., "an appeal or a motion for postconviction relief," Wis. Stat. Rule 809.30(1)(c) (2001-02) 2 ), his or her trial counsel must file a notice of the defendant's intent to do so within twenty days of sentencing. Rule 809.30(2)(a)-(b). If, as in this case, the defendant requests representation by the SPD, a series of deadlines are established for accomplishing the following: appointment of postconviction counsel by the SPD, preparation of transcripts and copies of the circuit court record, forwarding the same to the appointed postcon-viction counsel, and filing of a postconviction motion and/or notice of appeal. Rule 809.30(2)(c)-(k). This court may upon good cause shown enlarge the time periods set for accomplishing these steps, including the filing of a notice of appeal, and we may permit the actions "to be done after the expiration of the prescribed time." Wis. Stat. Rule 809.82(2)(a)-(b).
It is counsel's duty to decide what issues in a case have merit for an appeal. Jones v. Barnes,463 U.S. 745 (1983). Postconviction counsel is entitled to exercise reasonable professional judgment in winnowing out even arguable issues in favor of others perceived to be stronger. Id ... .
The rules of appellate procedure require that a defendant choose whether to proceed with the assistance of appointed counsel or proceed pro se. State v. Redmond,203 Wis. 2d 13 ,552 N.W.2d 115 (Ct. App. 1996). A defendant has neither the right to appointed counsel of choice nor the right to insist that a particular issue be raised. Oimen v. McCaughtry, 130 [F.3d] 809 (7th Cir. 1997). "The defendant may terminate appellate counsel's representation and proceed pro se or the defendant may allow postconviction relief to continue based on counsel's brief and then seek relief on the grounds of ineffective assistance of appellate counsel." State v. Debra A.E.,188 Wis. 2d 111 , 137-39,523 N.W.2d 727 (1994)....
The state public defender will not appoint successor counsel where a defendant disagrees with the legal conclusions of appointed counsel or when a defendant wants a second opinion as to the merits of an appeal. Todo so would unduly delay the disposition of the appeal, and would be contrary to the interests of justice. Wis. Admin. Code s. PD 2.04.
Judicial Council Notes — S.Ct. Order 00-02, § 36, Wis. Stat. Ann. Rule 809.30 (West Supp. July 2001).
¶ 5. If appointed counsel concludes that an appeal or motion for postconviction relief "would be frivolous and without any arguable merit," after counsel has explained the no-merit procedure under Wis. Stat. Rule 809.32, the client must choose from among three options:
a. To have the attorney file a no-merit report;
b. To have the attorney close the file without an appeal; or
c. To have the attorney close the file and to proceed without an attorney or with another attorney retained at the person's expense.
Rule 809.32(l)(b)l. Counsel must also inform the client that "a no-merit report will be filed if the person either requests a no-merit report or does not consent to have the attorney close the file without further representation by the attorney." Rule 809.32(l)(b)2.
¶ 6. We turn now to the background facts and procedural posture of the present writ proceeding.
¶ 7. Richard Ford pled no contest in 1998 to a charge of sexual assault and the Richland County Circuit Court sentenced him to twenty years imprisonment. He filed a notice of intent to seek postconviction relief, and the SPD appointed postconviction counsel for him. After reviewing the record, counsel spoke with Ford by phone and followed up the conversation with a letter to him. In the letter, counsel confirmed that Ford had "directed me to discontinue my representation of you" after obtaining an extension of time for Ford to file
¶ 8. We granted Ford's request for additional time to file for postconviction relief, noting in our order that Ford sought the extension "in order to proceed pro se on a motion to modify his sentence." 3 Counsel has subsequently informed us that he "closed Mr. Ford's file" after obtaining Ford's consent to that action. Some three years later, Ford wrote to his former counsel asserting that he had disagreed with counsel's opinion that his case lacked arguable merit, and he requested a copy of the no-merit report Ford claimed counsel had agreed to file. Counsel responded to Ford that he did not file a no-merit report "because you did not direct me to do so. You directed me to close your file in this office, and I did so ...." In response to an inquiry from Ford, the clerk of this court informed him that nothing had been filed with this court following the order extending his time to file a postconviction motion in the circuit court.
¶ 9. Ford then filed a petition in this court for a writ of habeas corpus "pursuant to
State v. Knight." See
¶ 11. In the State's initial response to Ford's petition, it argued that we should dismiss it because "the documentation provided by Ford conclusively establishes that Ford is not entitled to relief because Ford acquiesced in his attorney's advice to close the file." The State also noted that Ford waited over three years to file his habeas petition and we should deem it barred by laches. After receiving these responses, we obtained pro bono counsel for Ford and, in conjunction with the appeal in State v. Marioneaux, No. 02-1791-CR, unpublished slip op. (WI App Jan. 29, 2004), directed the briefing as described below.
¶ 12. Notwithstanding the procedural and factual differences between this writ proceeding and the appeal in Marioneaux, we conducted joint oral argument on the two cases. In addition to the common question that arises in both cases, they also share a somewhat unusual alignment of parties and positions. Both Marioneaux's appeal and Ford's writ petition were initially filed pro se. Attorney James Troupis answered our request of the Wisconsin State Bar Appellate Law Section to provide pro bono representation in both matters, and we directed him to file in each case "an amicus curiae brief in support of [Marioneaux and Ford]'s position that appointed postconviction counsel erred in closing [their] file [s] without filing a motion to withdraw."
¶ 13. Because the attorneys appointed to provide postconviction representation in both cases were appointed and employed by the SPD, and because we concluded that these cases raise "issues of statewide importance that are likely to impact" that office, we invited the SPD to file an amicus brief in each case. The SPD accepted our invitation and, along with the State, filed briefs in response to those filed on behalf of Marioneaux and Ford. Additionally, we invited Marion-eaux and Ford to file supplemental pro se briefs if they wished, but neither did so.
¶ 14. Attorney Troupis on behalf of Ford asks that we order his direct appeal rights under Wis. Stat. Rule 809.30 reinstated and that counsel be appointed for him. Additionally, he requests us to "articulate an obligation for future counsel to seek Court approval before foregoing a criminal appeal." The State joins in
¶ 15. The State thus largely supports the arguments advanced on behalf of Ford that he was (or may have been) denied effective assistance of postconviction or appellate counsel. The SPD disagrees. It asks us to "find" that Ford "validly waived his right to an appeal" and that "postconviction counsel properly closed the file." The SPD argues in the alternative, if we cannot reach those conclusions on the present record, that the case should "be remanded to the circuit court for fact finding." The SPD also contends that, under Flores, we cannot (or at least should not) require appointed counsel to file motions to withdraw on facts such as those before us.
¶ 16. We address in this opinion only the question of whether something happened, or did not happen, after Ford's criminal conviction that should result in his having his rights restored to directly appeal his conviction with the assistance of appointed postconviction counsel. The merits of any underlying claims of error that would invalidate his conviction or sentence have not been briefed and are not presently before us.
¶ 17. It appears from the documents filed in this case that counsel discharged his duties to (1) review and evaluate the circuit court records and transcripts for possibly meritorious grounds for relief from Ford's conviction, and (2) advise Ford regarding his rights and options. The dispute before us has to do with what
¶ 18. The supreme court concluded in
Flores
that the defendant's postconviction counsel had not rendered ineffective assistance by terminating representation of his client when, after being informed of his right to appeal and of the no-merit option, the client consented to counsel's closing the file without further court action.
Flores,
¶ 19. The court also concluded in
Flores
that "no formalized waiver procedures are required" and that a defendant's waiver of the right to appeal will be "presumed" to have been "made voluntarily, knowingly, and intelligently" where the record establishes that "the defendant 'either suggested, acquiesced in or concurred with the decision'" to forego an appeal.
Id.
at 617 (citation omitted). Moreover, the court expressly declined to impose a requirement that "counsel must always submit a formal motion to withdraw before
¶ 20. Recently, in
State v. Thornton,
¶ 21. Here, of course, appointed counsel did not move to withdraw, and the record does not contain the type of unequivocal, contemporaneous documentation
¶ 22. That question is squarely before us now, and counsel for Ford, joined by the State, urges us to impose an affirmative requirement for appointed postconviction counsel to obtain court permission to withdraw from representation before counsel may "close the file." The parties point out that circumstances such as those in this case (i.e., an off-record termination of postcon-viction representation followed by a pro se request for reinstatement of direct appeal rights and the appointment of counsel) occur with some regularity. They argue that retroactive judicial inquiry into whether a defendant knowingly and voluntarily waived either counsel or an appeal, pursued as here, years after the fact, is problematic at best. Finally, the parties point to several recent federal court decisions granting habeas relief to Wisconsin defendants whose postconviction
¶ 23. We agree that counsel's filing of a motion to withdraw, followed by a contemporaneous judicial determination of waiver of counsel, is in many ways preferable to what has transpired in this case. Not only has this court been required to expend considerable judicial resources in attempting to ascertain what happened several years ago when appointed counsel "closed his file," but, given the lack of a proper record on waiver of counsel or the right to appeal, additional circuit court proceedings will now also be required to resolve Ford's present claims. Moreover, the appointed postconviction attorney who in apparent good faith believed he had properly discharged his responsibilities to Ford years ago, has also been required to revisit his long-closed file and respond to our inquiries, and he presumably will soon be called upon to testify in circuit court eviden-tiary proceedings.
¶ 24. All this could have been avoided had appointed counsel for Ford proceeded as counsel in
Thornton
did, thus assuring the existence of a contemporaneous record and a judicial determination that his client had knowingly and voluntarily waived either the right to postconviction representation or to pursue postcon-
¶ 25. In addition, the SPD asserts that requiring withdrawal motions in all cases would infringe on the rights of indigent defendants, raise ethical problems for appointed postconviction counsel,
7
and, most importantly, be contrary to the supreme court's holding in
Flores.
We agree on the last point. Like counsel in this
¶ 26. Similarly, none of the federal decisions the State cites,
see supra
note 6, enunciate a requirement that postconviction counsel obtain court approval to withdraw prior to closing the file. The error cited by the federal court in each case was the lack of evidence in the record to support a determination that the defendant had knowingly and intelligently waived counsel or the right to appeal.
See Betts v. Litscher,
¶ 27. We close this portion of our analysis by noting why the fact that appointed trial counsel must obtain court permission to withdraw before terminating representation does not necessarily mean that appointed postconviction counsel should be required to do likewise. Indigent defendants have the right under the Sixth Amendment to be represented by publicly appointed counsel "in all criminal prosecutions." The State initiates criminal prosecutions, and unless or until the State or a trial court dismisses all charges, a prosecution will continue even if appointed counsel withdraws. A formal motion to withdraw permits the trial court to inquire into the circumstances and determine if the defendant is knowingly waiving counsel, or if the defendant will be represented in subsequent proceedings by successor counsel, thus permitting the prosecution to continue in conformity with the Sixth Amendment.
¶ 28. In contrast to the preconviction setting, where a defendant does not have a choice whether he or she will be prosecuted, the decision whether to pursue postconviction relief is entirely the defendant's to make. If a defendant does not file a notice of intent to pursue postconviction relief, no court proceedings of any kind are initiated, and, provided the defendant was informed
¶ 29. No further court proceedings will necessarily occur after a defendant consents to having postcon-viction counsel close the file. Thus, there is no need for a court to ensure, in every case, that the defendant has knowingly consented to counsel's action. Moreover, because the State's prosecution of the defendant has concluded, the defendant presumably suffers no additional adverse consequences by foregoing an appeal beyond those already imposed as result of his or her conviction and sentence.
¶ 30. As we have noted, the statistics provided by the SPD suggest that a significant number of defendants choose to forego further court action at some point after postconviction counsel has been appointed. The SPD has not provided, nor do we possess, any empirical data concerning how many defendants who initially consent to having postconviction counsel close the file later seek to have their direct appeal rights restored, but the SPD acknowledges that it "is not unusual" for this to occur. When it does, and a defendant claims to have been misinformed regarding his or her rights or options, or to have not consented to counsel's closing the file without further court action,
¶ 31. We thus conclude that counsel for Ford did not render ineffective assistance simply because he "closed the file" without first obtaining court permission to withdraw or otherwise seeking a contemporaneous judicial determination that his client had knowingly waived either the right to appeal or the right to counsel. We next consider whether the record before us is sufficient for us to determine whether counsel nonetheless performed deficiently by wrongly concluding that his client had knowingly and intelligently waived the right to counsel or the right to an appeal. 8
¶ 32. Although the SPD's arguments suggest otherwise, a line cannot always be drawn between the right to counsel and the right to appeal, such that a defendant can be said to have waived one but not the other in
¶ 33. Ford's
Knight
petition and counsel's response give some indication that Ford may have been aware of his right to appeal and of the no-merit option, although counsel informs us that "I did not offer a No Merit report because . . . the plea withdrawal issue was arguably meritorious."
See Flores,
¶ 34. The SPD contends that we may conclude on the present record that appointed counsel "properly" closed Ford's file. It claims that counsel could not file a no-merit report because there was at least one issue with arguable merit (which Ford did not wish to pursue), even though counsel had determined that a sentence modification motion (which Ford apparently
did
wish to pursue) lacked arguable merit. The SPD asserts that there is no procedure for filing a "partial no-merit" report, and argues there was no need for counsel to inform Ford of the risks of proceeding pro se on his sentence modification motion because "the alternative to
pro se
representation on the sentence modification
¶ 35. Rather, we conclude that we must defer consideration of the "Catch 22" presented by the SPD's argument that, given counsel's assessment, Ford was entitled to neither a no-merit report nor representation by appointed counsel on a motion for postconviction relief. There is a threshold problem that prevents us from reaching the merits of Ford's petition on the record before us. As in
Flores,
the "problem presented in this case [is] essentially evidentiary," in that we do not know for sure "what was said and done" before appointed counsel closed his file.
Flores,
¶ 36. We are not a fact-finding court.
See Wurtz v. Fleischman,
CONCLUSION
¶ 38. For the reasons discussed above, we refer to the circuit court for evidentiary proceedings.
By the Court. — Cause referred with directions.
Notes
The right of an indigent defendant to have counsel provided at public expense for purposes of a first appeal as of right from a state criminal conviction appears to be grounded in the due process clause of the Fourteenth Amendment, rather than in the Sixth Amendment, which applies to "criminal prosecutions."
See Douglas v. California,
All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. Wisconsin Stat. Rules 809.30 and 809.32 have been revised since postconviction counsel in this case "closed his file." Our disposition does not rest on any recently revised provisions in the rules, however, and we thus cite and refer in this opinion to the version of the rules contained in the 2001-02 statutes.
We issued this order in February 1999, some three years before our decision in
State v. Thornton,
The court in
State v. Knight,
Ford also filed a notice of appeal in the circuit court. After noting that Ford's notice of appeal was filed over three years after the extended deadline, we dismissed the appeal for lack of jurisdiction in the absence of a showing of good cause for a
See Betts v. Litscher,
The SPD maintains that except where a client consents to the filing of a no-merit report, counsel may not ethically disclose to a court that counsel has determined that no arguably meritorious grounds exist for relief from a conviction. It cites SCR 20:1.6 as prohibiting unauthorized disclosure of confidential information "unless and until the client waives confidentiality by claiming that counsel's withdrawal was improper." In the SPD's view, a defendant who elects to proceed pro se in lieu of authorizing a no-merit report should not have his arguments "diminished by appointed counsel advising the court in advance of the filing of the [pro se] brief that there are no issues of arguable merit." Although counsel in
Thornton
did precisely this when he moved to withdraw, we agree with the SPD that
"Thornton
should not be construed to require the filing of a motion to withdraw which explains the reasons that a client has elected to proceed
pro se."
We did not address in
Thornton
the propriety of counsel's inclusion of his assessment of merit in his motion to withdraw inasmuch as the question was not raised in that appeal. Neither did we say in
Thornton,
nor do we here,
A prejudice analysis is not required. "[Wjhenever the ineffective assistance is such as to deprive one
totally
of the right to appeal, the prejudice showing is presumed."
State ex rel. Flores v. State,
We actually said in
Thornton
that a defendant must be made aware that successor counsel "may" not be appointed.
Thornton,