Nearly 70% of criminal appeals in Wisconsin use the legal vehicle of ineffective assistance of counsel as the attempted means for relief. This means that the accused is arguing, “If my trial counsel had done something different, the outcome would’ve been different and I wouldn’t have been convicted” (or the result of sentencing would’ve been different). In every case alleging ineffective assistance of counsel, the accused must go through the stage of the post-conviction motion, and cannot proceed directly to appeal after sentencing and the final judgment.
The circuit court will either hold a hearing or deny your post-conviction motion without hearing. The court is supposed to hold a hearing any time there is an issue over evidence. Sometimes, however, courts are so backed up that they just say, “Oh, even if you proved what you say you could prove, it wouldn’t make a difference, you still would have been convicted” (or sentenced however).
Whether there was a hearing or not, after the circuit court denies your post-conviction motion, you have the right to appeal that denial. Now is the time you go to the Court of Appeals. You can add on any issues that were preserved for direct appeal as well. You have to file a notice of appeal, though, telling the circuit court and Court of Appeals that you are appealing the circuit court’s denial of your post-conviction motion. The time to do so is provided for in Wis. Stat. 809.30(2)(j), which says:
Appeal from judgment and order. The person shall file in circuit court and serve on the prosecutor and any other party a notice of appeal from the judgment of conviction and sentence or final adjudication and, if necessary, from the order of the circuit court on the motion for postconviction or postdisposition relief within 20 days of the entry of the order on the postconviction or postdisposition motion…
This means you have 20 days to file a notice of appeal once the circuit court denies your post-conviction motion. The notice of appeal is a simple, one or two page document, and does not require that you say anything other than that you are appealing. It’s very easy. However, getting it in timely is absolutely imperative. If you have an attorney, the attorney will have a drafted notice that he or she uses. If you don’t have one, you should use the CA-120 which is a form created by the Wisconsin courts system and available for download here in both Word and PDF.
If you would like legal counsel and assistance in appealing the denial of your post-conviction motion, please contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).