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State v. Pope

Supreme Court of Wisconsin

December 17, 2019

State of Wisconsin, Plaintiff-Appellant,
v.
Robert James Pope, Jr., Defendant-Respondent-Petitioner.

          SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 6, 2019

          Circuit Court Milwaukee County L.C. No. 1996CF960574 Jeffrey A. Conen Judge

         REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 385 Wis.2d 211, 923 N.W.2d 177 (2018 - unpublished)

          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. 0'Brien, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Daniel J. 0'Brien.

          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:

          ANNETTE KINGSLAND ZIEGLER, J.

         ¶1 This is a review of an unpublished opinion of the court of appeals, State v. Pope, No. 2017AP1720-CR, unpublished slip op.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's[1] order. The circuit court vacated Robert James Pope, Jr.'s ("Pope") 1996 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');">401 N.W.2d 748 (1987); DeLeon, 127 Wis.2d 74, 377 N.W.2d 635');">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 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 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.

         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 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.

         ¶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 f if teen-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 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 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 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 Knight[8] 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 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 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 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 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 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 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 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 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. 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 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 ...


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