SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 6, 2019
Circuit Court Milwaukee County L.C. No. 1996CF960574 Jeffrey
A. Conen Judge
OF DECISION OF THE COURT OF APPEALS Reported at 385 Wis.2d
211, 923 N.W.2d 177 (2018 - unpublished)
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.
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.
ANNETTE KINGSLAND ZIEGLER, J.
This is a review of an unpublished opinion of the court of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unpublished slip op.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 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.
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.
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
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.
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) . 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.
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.
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.
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.
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. 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). 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.
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.
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
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 delay in
commencing postconviction proceedings.
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
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) . 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,  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
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.
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."
Eleven years later, on July 21, 2014, Pope filed a
Knight 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. 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.
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.
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.
Pope filed a petition for review in this court. We granted
STANDARD OF REVIEW
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.
Right To An Appeal
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
Perry/DeLeon Procedure Applies.
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.
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.
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.
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