June 23, 2014 – In a matter of first impression, a unanimous Wisconsin Supreme Court ruled that a defendant’s ineffective assistance of counsel claim was properly filed with the state court of appeals and can proceed in that forum.
In Kyles v. Pollard, 2014 WI 38 (June 17, 2014), the court ruled in favor of Lorenzo Kyles, who is arguing that his appellate counsel failed to timely file a notice of intent to pursue postconviction relief despite Kyle’s request that he file the appeal.
In November 2002, Kyles pled guilty to one count of first degree reckless homicide by use of a dangerous weapon and was sentenced to 40 years in prison. The day he was sentenced, Kyles met with his attorney to discuss the sentence and his appeal rights.
At that meeting, Kyles was undecided as to whether or not he wanted to pursue an appeal, but signed a form that explained that if he wished to seek postconviction relief he must file a notice of intent with the circuit court within 20 days of sentencing.
According to Kyles, later that day he called his mother and asked her to contact the attorney and inform him that Kyles wished to appeal. Kyles also claims he sent a letter to the attorney’s office stating that he wished to appeal and file a notice of intent.
Kyles also asserts that both he and his mother tried to call the attorney’s office, but the office refused to accept the calls. In January 2003, after the deadline for filing the notice of intent had passed, Kyles was able to speak with the attorney and told him of his desire to appeal. The attorney advised Kyles that the deadline to file had passed and that because Kyles entered a guilty plea, there were few non-frivolous issues for appeal.
Deborah Spanic, Marquette 2004, is a guest writer for the State Bar of Wisconsin. She can be reached by email.
Kyles then filed a pro se habeas corpus petition with the court of appeals seeking reinstatement of his direct appeal rights. The court of appeals dismissed the petition, noting that a notice of intent had never been filed. The court of appeals reasoned that the error occurred in circuit court, and the claim should be raised in circuit court.
Kyles then filed a pro se habeas petition with the circuit court, seeking to have his direct appeal rights reinstated. The circuit court construed the petition as a motion for postconviction relief. It noted that the petition did not specifically allege that Kyles informed his attorney that he wished to appeal, and concluded that Kyles failed to state a viable claim for relief. The circuit court denied the petition.
Kyles was undeterred, filing numerous additional motions and petitions in both federal and state courts. He finally filed another pro se motion with the court of appeals seeking to extend the deadline for filing notice of intent, arguing he was denied effective assistance of counsel. The court of appeals again denied the petition, concluding that claims for ineffective assistance of postconviction counsel must be brought in the circuit court. Kyles then appealed that decision to the Wisconsin Supreme Court.
Analysis and Holding
The Supreme Court accepted the case to determine the appropriate forum and vehicle for relief for a defendant asserting ineffectiveness of counsel that resulted in a notice of intent to pursue postconviction relief not being filed.
Additionally, the court examined whether Kyles’ petition set forth sufficient facts to warrant an evidentiary hearing. There was no precedent directly addressing this discrete issue before the court.
Writing for the court, Justice Ann Walsh Bradley noted that traditionally, ineffective assistance of counsel claims premised on errors occurring before the circuit court should be pursued in the circuit court, and claims of ineffective assistance of counsel premised on errors occurring before the appellate court should be pursued there.
The state in this case argued that the circuit court can provide a remedy to Kyles by exercising its power to vacate and reinstate the prior judgment, effectively restarting the time period for Kyles to file a notice of intent to pursue postconviction relief.
But the supreme court did not agree. “The remedy proposed by the state is unpalatable,” stated Justice Bradley. “Wisconsin jurisprudence has long disfavored extending time limits by vacating one judgment and entering a new one.”
The court noted that “where the alleged ineffectiveness was the failure to file a notice of intent, the remedy would be to extend the time period for a defendant to file a notice of intent.” But the circuit court is without authority to extend the deadline, the court noted.
“Because the circuit court is without authority to extend the deadline to file a notice of intent to pursue postconviction relief, we conclude that the proper forum here lies in the court of appeals,” Justice Bradley wrote.
The court also reviewed other procedural questions regarding whether Kyles’ petition was sufficient to entitle him to an evidentiary hearing on his claims.
Kyle’s petition, the court noted, alleged sufficient facts that entitle him to relief if, particularly when reviewing the petition liberally, the court’s policy when construing the sufficiency of pro se petitions. The court remanded the case to the appeals court.