author: NETTESHEIM, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Gregg A. Pfaff, Defendant-Appellant.
    Court of Appeals

      No. 03-1268-CR.

      Submitted on briefs December 4, 2003.

      Decided January 28, 2004.

    2004 WI App 31
    (Also reported in 676 N.W.2d 562.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Rex R. Anderegg, of An-deregg & Mutschler, L.L.P., of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Sarah K. Larson, assistant attorney general.
    Before Anderson, PJ., Brown and Nettesheim, JJ.
   NETTESHEIM, J.

¶ 1. Gregg A. Pfaff appeals from a judgment of conviction for homicide by use of a motor vehicle while intoxicated pursuant to Wis. Stat. § 940.09(l)(a) (2001-02). Pfaff was convicted following a jury trial. On appeal, Pfaff argues that the trial court erred by: (1) failing to admit testimony that Pfaff had offered to submit to a polygraph, (2) failing to apply the proper test when ruling on probable cause to arrest, (3) permitting the State to publish to the jury an autopsy photograph of the deceased victim's face, and (4) allowing a State expert witness to confer with the district attorney during a break in the witness' direct examination.

¶ 2. We reject each of Pfaffs arguments and affirm the judgment of conviction.

BACKGROUND

¶ 3. Since Pfaff does not challenge the sufficiency of the evidence, we recite the facts that support the conviction. On January 25, 2002, Deputy Theo Jordan of the Waukesha County Sheriffs Department received a report of an accident involving two vehicles on southbound 1-43. Jordan arrived at the accident scene and observed a person, later identified as Pfaff, standing on the right of the road approximately thirty feet into the ditch area. Pfaff indicated that he was the only one in his vehicle and that he had been driving. Pfaff also informed Jordan that there was another vehicle involved. Jordan located the other vehicle and observed one occupant, later identified as Robert T. Naumann. Jordan was unable to obtain a pulse and Naumann was not breathing.

¶ 4. Jordan observed extensive front-end damage to Pfaffs vehicle and extensive rear-end damage to Naumann's vehicle. Prior to the arrival of medical personnel, Jordan overheard Pfaff make a phone call during which Pfaff stated that he was driving along on the interstate when another vehicle crossed over the center line and hit him head on. Jordan, a certified accident reconstructionist, opined that Naumann's ve-hide was stopped on the right shoulder, approximately four feet off the traveled portion of the roadway, when it was struck by Pfaffs pickup truck.

¶ 5. Deputy Brett Metzen of the Waukesha County Sheriffs Department also responded to the accident scene. Jordan told Metzen that Pfaff was receiving emergency medical treatment. During this time, Metzen observed that Pfaffs eyes were wet or "maybe glassy" and he noted an odor of intoxicant coming from Pfaffs person. Metzen was unable to conduct field sobriety testing because Pfaff was strapped on a "long-board." Metzen accompanied Pfaff to the hospital. After arriving at the hospital, Metzen issued Pfaff a citation for operating while intoxicated, read him the Implied Consent form, and requested that Pfaff submit to an evidentiary chemical test of his blood. Pfaff refused to submit to the test. Despite the refusal, a sample of Pfaffs blood was taken at Metzen's direction.

¶ 6. Based on these facts, the State charged Pfaff with homicide by the intoxicated use of a motor vehicle pursuant to Wis. Stat. § 940.09(l)(a). In a separate action, the State additionally charged that Pfaff had improperly refused to submit to a chemical test pursuant to Wis. Stat. § 343.305(9).

¶ 7. At a preliminary hearing, Pfaff was bound over for trial, and the State filed an information again alleging the homicide while intoxicated charge. Pfaff responded with a motion challenging the sufficiency of the evidence to support the bindover and a motion challenging probable cause to support his arrest. In addition, Pfaff requested a hearing on the refusal matter. Both cases were assigned to Judge Patrick C. Haughney, who directed that Pfaffs motions in the criminal case would be heard in conjunction with the refusal hearing.

¶ 8. At the ensuing hearing, Judge Haughney first addressed Pfaffs motion challenging the bindover. After hearing the arguments of counsel, Judge Haugh-ney denied the motion, ruling that the evidence at the preliminary hearing established a plausible account of Pfaffs commission of a felony. See State v. Sorenson, 143 Wis. 2d 226, 251, 421 N.W.2d 77 (1988).

¶ 9. Judge Haughney next turned to Pfaffs motion challenging probable cause to arrest and the refusal question. On these issues, Judge Haughney incorporated by reference the testimony presented at the preliminary hearing and directed both parties to "not repeat any evidence that was put forth in the preliminary hearing transcript.. .." In. support, the judge stated, "To continue just to repeat the same testimony would be a waste of this court's time . . . ." However, the judge did allow Pfaff the opportunity to cross-examine the State's preliminary hearing witnesses. Pfaff objected to this procedure.

¶ 10. The State then presented the testimony of Metzen on the refusal issue. Pfaff also testified. At the conclusion of the hearing, Judge Haughney ruled that probable cause existed to support Pfaffs arrest. In so ruling, the judge relied, in part, on the testimony presented at the preliminary hearing. In addition, the judge found that Pfaff had improperly refused to submit to a chemical test.

¶ 11. Pfaff appealed the refusal case to this court, arguing, "the procedure used by the trial court robbed him of the right to have a tribunal that observes the demeanor of the witnesses in assessing credibility during the State's direct evidence." State v. Pfaff, No. 02-1702, unpublished slip op. at ¶ 1 (WI App Dec. 4, 2002). Noting that probable cause was one of the issues at a refusal hearing {see Wis. Stat. § 343.305(9)(a)5.a), we agreed with Pfaff. Pfaff, No. 02-1702, unpublished slip op. at ¶ 16. However, we upheld Judge Haughney's further finding that Pfaff s refusal was not due to a physical inability to submit to the test. See Wis. Stat. § 343.305(9)(a)5.c; Pfaff, No. 02-1702, unpublished slip op. at ¶ 23. We reversed and remanded for a new hearing limited to the question of probable cause.

¶ 12. On remand, Pfaff filed for substitution of Judge Haughney and the refusal case was assigned to Judge James R. Kieffer. At this hearing, Jordan, Metzen and Pfaff testified. Based on this evidence, Judge Kief-fer found that there was probable cause to believe that Pfaff was operating under the influence of intoxicants and, as such, there was probable cause to place him under arrest.

¶ 13. During the pendency of the refusal appeal, Judge Haughney conducted a six-day jury trial on the homicide charge in the instant case. As noted, the jury found Pfaff guilty of causing the death of another person by operation of a vehicle while under the influence of an intoxicant contrary to Wis. Stat. § 940.09(1)(a).

¶ 14. Pfaff appeals. We will recite additional facts as we discuss the appellate issues.

DISCUSSION

Probable Cause to Arrest

¶ 15. On this appeal, Pfaff raises the same issue he raised in the refusal appeal. He contends that Judge Haughney erred and violated his due process rights by incorporating and relying upon the testimony from the preliminary hearing when ruling on probable cause to arrest. As our discussion of the history of this case reveals, we previously addressed this same issue in Pfaff, No. 02-1702, unpublished slip op., in which we held that the procedure employed by Judge Haughney was error.

¶ 16. That raises the threshold question as to whether we are obliged by the "law of the case" doctrine to adhere to our prior decision in this case. The law of the case doctrine holds that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or a later appeal. State v. Stuart, 2003 WI 73, ¶ 23, 262 Wis.2d 620, 664 N.W.2d 82. Although we are confident that our ruling in the earlier appeal was correct, we conclude that it does not represent the "law of the case" in this case. The earlier appeal addressed the issue of probable cause under Wis. Stat. § 343.305(9)(a)5.a in a refusal hearing, not the question of probable cause to arrest in a felony case such as this. The State's burden of persuasion at a refusal hearing is substantially less than at a suppression hearing. State v. Wille, 185 Wis. 2d 673, 681, 518 N.W.2d 325 (Ct. App. 1994). At a refusal hearing, the issues are limited to whether the officer had probable cause to believe the defendant operated a motor vehicle while intoxicated, whether the officer properly informed the defendant under the implied consent law, and whether the defendant improperly refused the test. Sec. 343.305(9)(a)5. Regarding probable cause, the State need only show that the officer's account is plausible. Wille, 185 Wis. 2d at 681. Plausibility may exist even when the trial court may disbelieve the officer's account. Id.

¶ 17. However, when probable cause is challenged in a suppression hearing in a criminal case, plausibility is not enough. Id. at 682. Instead, the trial court weighs the evidence, determines credibility and chooses between conflicting versions of the evidence. Id. The standard for determining whether probable cause exists rests on the totality of the circumstances and whether the "arresting officer's knowledge at the time of the arrest would lead a reasonable police officer to believe . . . that the defendant was operating a motor vehicle while under the influence of an intoxicant." State v. Babbitt, 188 Wis. 2d 349, 356, 525 N.W.2d 102 (Ct. App. 1994) (citation omitted). Given these differences between the probable cause standard in a refusal case and a criminal case, we conclude that the law of the case does not apply.

¶ 18. Nonetheless, we hold that Pfaffs concern about Judge Haughney's procedure has been cured by the subsequent remand proceedings before Judge Kief-fer. In accord with our remand in the prior appeal, Judge Kieffer conducted a further hearing on the question of probable cause and ruled that Pfaffs arrest was supported by probable cause. True, Judge Kieffer was addressing the question of probable cause under the implied consent law. However, Judge Kieffer's ruling went far beyond the mere requirement of "plausibility" under the implied consent law. To the contrary, Judge Kieffer's ruling addressed probable cause in the fullest sense of that concept as applied to a probable cause challenge in a suppression hearing.

¶ 19. At the remand proceeding, Jordan, Metzen, and Pfaff testified. Following the arguments of counsel, Judge Kieffer framed the issue as follows:

The only aspect that was reversed and returned to this Court was dealing with the probable cause aspects, as to specifically whether Deputy Metzen had probable cause to believe that Mr. Pfaff was under the influence of intoxicants which then led to his arrest for this particular matter and then led to a subsequent refusal by Mr. Pfaff to take a chemical test of his blood, breath, or urine.
The sole issue then is whether there did exist probable cause to place Mr. Pfaff under the arrest by Deputy Metzen.
Neither side disputes nor does the Court the applicable standard in this case for probable cause.... Probable cause is, in fact, a standard that the Court must look at from the totality of the circumstances, and I must look at what was in the mind of a reasonable police officer at the time of making the arrest and whether there existed sufficient facts and circumstances to warrant the officer to believe that a crime or a traffic matter had, in fact, been violated.

(Emphasis added.)

¶ 20. Judge Kieffer then went on to find the following facts. Metzen's decision not to perform field sobriety testing was reasonable in light of Pfaff s injuries. Metzen is an experienced officer and has processed many defendants for OWI. Metzen was at the scene of the accident and, at the hospital, Metzen observed Pfaff to have an odor of intoxicants on his breath and red, watery eyes. Metzen had information from Jordan that the accident took place in a distress lane off the roadway and, in his opinion, he believed Pfaff was unable to safely control his vehicle. After making these findings, Judge Kieffer stated, "[T]he Court looks at the totality of all these circumstances, and the Court believes that based upon these particular circumstances, that there did exist probable cause to believe that Mr. Pfaff was under the influence."

¶ 21. Notably absent from Judge Kieffer's finding of probable cause is any reference to the lesser "plausibility" standard for probable cause at a refusal hearing. To the contrary Judge Kieffer applied the higher probable cause standard required by the criminal law when an arrest is challenged.

¶ 22. We will not overturn the trial court's findings of fact unless clearly erroneous. Wis. Stat. § 805.17(2). Here, the trial court's findings are supported by Metzen's and Jordan's testimony and are not clearly erroneous. Moreover, the testimony offered and the facts found by Judge Kieffer support the court's finding that Metzen's knowledge at the time of Pfaff s arrest would lead a reasonable police officer to believe that Pfaff was operating a motor vehicle while under the influence of an intoxicant. See Babbitt, 188 Wis. 2d at 356-57. Despite the fact that the hearing was conducted as an offshoot of Pfaff s refusal appeal, we hold that Judge Kieffer fully and correctly litigated the question of probable cause under the criminal law. We therefore reject Pfaffs contention that he has yet to receive a proper probable cause determination in this case.

The Polygraph Offer

¶ 23. At the conclusion of his opening argument, Pfaff s counsel stated that Pfaff had offered to take a polygraph test. The State objected and Judge Haughney excused the jury for the day. Pfaff then made an offer of proof, testifying that he had offered to take a polygraph regarding his claim that he had observed the headlights of an oncoming vehicle just prior to hitting Naumann's vehicle. Pfaff additionally testified that he had taken and passed the test and that at the time he took the test he believed the results of the test were admissible at trial. On cross-examination, Pfaff testified that the polygraph test "was something that my counsel wanted me to take" but that he "voluntarily submitted to it." This information concerning the test was not disclosed to the State until the first day of trial.

¶ 24. Following arguments by counsel, Judge Haughney excluded Pfaffs polygraph testimony. The judge found that "there was no offer to take a polygraph in this case .... Nowhere does this record contain that there was an offer to the [Sjtate to have a polygraph test taken." The court additionally found incredible Pfaffs testimony that he was under the impression that the State would be informed if he failed the test.

¶ 25. Pfaff argues that Judge Haughney erred by excluding testimony that he had agreed to take a polygraph test. A trial court's decision to admit or exclude evidence is a discretionary determination and will not be upset on appeal if it has "a reasonable basis" and was made "in accordance with accepted legal standards and in accordance with the facts of record." State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983) (citation omitted).

¶ 26. While a polygraph test result is inadmissible in Wisconsin, see State v. Dean, 103 Wis. 2d 228, 279, 307 N.W.2d 628 (1981), an offer to take a polygraph test is relevant to an assessment of the offeror's credibility and may be admissible for that purpose. State v. Hoffman, 106 Wis. 2d 185, 217, 316 N.W.2d 143 (Ct. App. 1982). An offer to take a polygraph test is relevant to the state of mind of the person making the offer — so long as the person making the offer believes that the test or analysis is possible, accurate, and admissible. State v. Santana-Lopez, 2000 WI App 122, ¶ 4, 237 Wis. 2d 332, 613 N.W.2d 918.

¶ 27. In Santana-Lopez, the defendant told the police that he would take a polygraph and DNA tests. Id., ¶ 2. The trial court excluded this evidence. We reversed and remanded for the trial court to reconsider the ruling under the following guidelines:

[A]n offer to take a polygraph test and an offer to undergo a DNA analysis are relevant to the state of mind of the person making the offer — so long as the person making the offer believes that the test or analysis is possible, accurate, and admissible. Simply put, an offer to undergo DNA testing, like an offer to take a polygraph examination, may reflect a consciousness of innocence.
As with evidence bearing directly on consciousness of guilt, see, e.g., State v. Schirmang, 210 Wis. 2d 324, 331-32, 565 N.W.2d 225, 228 (Ct. App. 1997) (refusal to submit to mandatory blood-alcohol testing relevant to defendant's consciousness of guilt), evidence bearing directly on consciousness of innocence is also relevant, see Hoffman, 106 Wis. 2d at 217, 316 N.W.2d at 160.

Santana-Lopez, 237 Wis. 2d 332, ¶¶ 4-5 (citations omitted). Thus, a defendant's offer to take a polygraph test is admissible because it may reflect a consciousness of innocence.

¶ 28. The threshold question in this case is whether Pfaff s agreement to submit to a polygraph test at the request of his attorney constitutes an "offer" to take a polygraph test. We addressed this issue in the civil case of Neumann v. Neumann, 2001 WI App 61, ¶ 64, 242 Wis. 2d 205, 626 N.W.2d 821. There, the appellant argued that the trial court erred in excluding evidence that he had offered to take a polygraph test. In rejecting this argument, we stated,

[A]s Neumann acknowledged at oral argument, he did not offer to take a polygraph examination. Instead, law enforcement asked him to take the examination and he agreed. Neumann contends that even though law enforcement suggested the test, his willingness to take the test should still be admissible under the same reasoning applied in Hoffman.

Neumann, 242 Wis. 2d 205, ¶ 64. Thus, an agreement to submit to a polygraph test at the suggestion or request of another is not an offer within the meaning of Hoffman.

¶ 29. We see no reason to create an exception to this rule where, as here, the request or suggestion for the polygraph test comes from the defendant's attorney. When the offer to take a polygraph test originates with the defendant and is accompanied by the defendant's belief that the test result or analysis is "possible, accurate, and admissible," it is probative as "consciousness of [the defendant's] innocence." Santana-Lopez, 237 Wis. 2d 332, ¶¶ 4-5. The converse does not hold when the offer to take the test is the result of an attorney's suggestion or direction. Any competent defense attorney practicing in Wisconsin well knows that polygraph test results are inadmissible in this state, and presumably the attorney would share that knowledge with the client when suggesting the test.

¶ 30. Relevant evidence is evidence that makes the existence of a consequential fact more or less probable than it would be without the evidence. Wis. Stat. § 904.01. Moreover, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Wis. Stat. § 904.03. We hold that when the defense attorney plants the seed for the idea of offering to take a polygraph test, the probative value of such an offer as "consciousness of innocence" is diminished to a level where it no longer assists on the question of guilt or innocence. Instead, it takes the jury into the realm of speculation and likely confusion.

¶ 31. We conclude that Pfaffs agreement to submit to a polygraph test at the request of his attorney was not an "offer" to take a polygraph test within the meaning of the established case law. We uphold Judge Haughney's ruling excluding Pfaffs proffered testimony.

Admission of Autopsy Photograph

¶ 32. On the fourth day of trial, during the State's direct examination of the medical examiner, the State sought to introduce a photograph of Naumann prior to his death. Pfaff objected and the trial court denied the admission of the photograph because it had not been provided to Pfaff during discovery prior to trial. The State then sought to introduce an autopsy photograph of Naumann which had been provided to Pfaff during discovery. Pfaff objected on grounds that he had never disputed Naumann's identity or death. Pfaff argued that the photograph had no probative value and was inflammatory and cumulative. The State responded that it had not entered into any stipulation regarding Naumann's identity, and that the photograph was necessary to fulfill its burden of proving this element of the offense.

¶ 33. Judge Haughney permitted the State to use the photograph, stating:

The court will allow the state to utilize Exhibit 44. In terms of the type of photograph, the court finds nothing in there that is unduly inflammatory towards the jury. The court disagrees with counsel's characterization in terms of what stipulations to the Autopsy Protocol include. The state — this is an appropriate line of questioning in a homicide case. As there's nothing inflammatory about this, the court also finds that this photograph is probative. It may be utilized.

Pursuant to Wis. Stat. § 904.03, Pfaff argues that Judge Haughney erred in admitting the photograph because its probative value was outweighed by its prejudicial effect. Pfaff further contends that the photograph represents the "needless presentation of cumulative evidence."

¶ 34. Whether photographs are to be admitted is a matter within the trial court's discretion. State v. Lindvig, 205 Wis. 2d 100, 108, 555 N.W.2d 197 (Ct. App. 1996). We will not disturb the court's discretionary decision "unless it is wholly unreasonable or the only purpose of the photographs is to inflame and prejudice the jury." Id. (citing State v. Hagen, 181 Wis. 2d 934, 946, 512 N.W.2d 180 (Ct. App. 1994)). "Photographs should be admitted if they help the jury gain a better understanding of material facts and should be excluded if they are not 'substantially necessary' to show material facts and will tend to create sympathy or indignation or direct the jury's attention to improper considerations." Ellsworth v. Schelbrock, 229 Wis. 2d 542, 559, 600 N.W.2d 247 (Ct. App. 1999) (citing Sage v. State, 87 Wis. 2d 783, 788, 275 N.W.2d 705 (1979)).

¶ 35. Pfaff argues that the evidence was cumulative because he did not dispute Naumann's identity. However, Lindvig rejected the argument that a defendant's willingness to stipulate to an element could render photographs inadmissible. Lindvig makes clear that even when a party is willing to stipulate to an element, "[e]vidence is always admissible to prove an element of the charged crime even if the defendant does not dispute it at trial." Lindvig, 205 Wis. 2d at 108 (citation omitted).

¶ 36. Here, the State was required to prove the following elements of homicide by intoxicated use of a motor vehicle under Wis. Stat. § 940.09(l)(a): (1) Pfaff operated a vehicle, (2) Pfaffs operation of the vehicle caused the death of Robert T. Naumann, and (3) Pfaff was under the influence of an intoxicant at the time he operated the vehicle. Wis JI — Criminal 1185. Therefore, Pfaffs photograph was admissible as proof of an element of the charged crime and was substantially necessary to show a material facts regarding Naumann's identity and death — namely, that Naumann was the victim of the offense. See Lindvig, 205 Wis. 2d at 108; Ellsworth, 229 Wis. 2d at 559. Further, the record reflects that prior to admitting the photo, the trial court properly exercised its discretion in weighing the potential prejudice to Pfaff against the State's burden to prove every element of the charged offense.

¶ 37. We conclude that the trial court's decision to admit an autopsy photograph of Naumann was not wholly unreasonable. We further conclude that the purpose of the photograph was not to inflame or prejudice the jury, and Pfaff concedes that the photo is not "particularly graphic or gory in detail." The State was entitled to present the evidence as proof of an essential element of the charged crime. We therefore uphold the admission of the autopsy photograph.

Permitting State's Witness to Confer with District Attorney

¶ 38. On the first day of trial, prior to voir dire, Judge Haughney ordered that the witnesses would be sequestered but would be "able to discuss their testimony with lawyers from either side." On the second day of trial, Pfaff was in the middle of his cross-examination of Metzen when Judge Haughney called for a short recess. Pfaff requested that Judge Haughney prohibit Metzen from conferring with the district attorney or any other person during the recess. Judge Haughney granted the request. When Pfaff inquired about extending the ruling to other witnesses, Judge Haughney replied:

There is a sequestration order in effect, which I don't need to review at this particular time. What you have done... is added a new provision to the prior provision that I had that all witnesses could confer with attorneys. That's been the change. I do not intend to review the entire order on every single break for every single witness that we have.

¶ 39. The State's next witness was James Sobek, an accident reconstruction specialist. During his direct examination by the State, Judge Haughney ordered a brief recess during which the district attorney conferred with Sobek. Pfaff contends that Sobek's testimony changed to his detriment following Sobek's discussion with the district attorney during the recess.

¶ 40. Pfaff argues that Judge Haughney erred by refusing to extend the bar against Metzen conferring with the lawyers to all of the future witnesses in the case. We do not read Judge Haughney's language as all that encompassing or absolute. Unlike with Metzen, Pfaff s request was not made in regard to any specific witness. In that context, Judge Haughney indicated his satisfaction with the standing sequestration order, and that the court did not intend to review the order "on every single break for every single witness." Notably, this language did not preclude Pfaff from raising the issue with regard to a particular future witness should the need arise.

¶ 41. Thus, if Pfaff perceived a need to bar consultation between the district attorney and Sobek during the break in Sobek's testimony, he should have asked for that particular relief with regard to that particular witness. Judge Haughney had already indicated his readiness to alter the standing order during Metzen's testimony. However, Pfaff never made this request of Judge Haughney at the time of the break in Sobek's testimony. We hold that Pfaff has waived this issue. See Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980).

CONCLUSION

¶ 42. We hold that Judge Rieffer applied the appropriate test in determining probable cause to arrest, rendering Pfaffs probable cause argument moot. We also hold that Pfaffs acquiescence to his attorney's request that he submit to polygraph testing did not constitute an admissible "offer" under existing law. We further hold that Judge Haughney properly exercised his discretion by permitting the State to introduce an autopsy photograph as proof of an essential element of the charged crime. Finally, we conclude that Judge Haughney's refusal to alter the standing witness sequestration order did not bar Pfaff from seeking relief from the order with regard to a particular witness. Since Pfaff did not seek such relief, we hold that he has waived this issue.

¶ 43. We affirm the judgment of conviction.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version.

       In Neumann v. Neumann, 2001 WI App 61, 242 Wis. 2d 205, ¶¶ 59-62, 626 N.W.2d 821, we held that the rules governing polygraph testing and results are the same in criminal and civil cases.

       The rationale underlying the discretion afforded the trial court on this issue was discussed in Hayzes v. State, 64 Wis. 2d 189, 200, 218 N.W.2d 717 (1974):
      While reasonable persons looking at the photographs as a part of a record may have differing opinions in regard to whether they were cumulative, inflammatory, or prejudicial, the judgment is essentially one to he exercised by the trial judge. He [or she], better than anyone else, in light of the evidence, can make the determination that the photographs will assist the jury in a rational and dispassionate determination of the facts. Where a trial judge has applied the appropriate discretionary standards, this court will not reverse his [or her] decision unless it appears that, in light of the record as a whole, his [or her] conclusion was wholly unreasonable or if the circumstances indicate that the only purpose of the photographs was to inflame or prejudice the jury.

       We have examined the photo and we agree.

       At the end of the second day of trial and the close of Pfaff s cross-examination of Metzen, the trial court, over Pfaff s objection, removed its prohibition and permitted Metzen to confer with attorneys from either side during the overnight break. Thus, Judge Haughney reinstated his original ruling as to all witnesses — they were sequestered but were free to discuss their testimony with the lawyers.

       We take note of Wis. Stat. § 906.11(1) which vests the trial judge with reasonable control over the mode and order of interrogating witnesses and the presentation of evidence.

       We also note that Pfaff was aware of the perceived change in Sobek's testimony during his cross-examination when he asked whether Sohek discussed his testimony with the district attorney during the recess and implied that the discussion had resulted in a change in Sobek's testimony. Despite this knowledge, Pfaff did not seek any other form of relief such as a request that the testimony be stricken.

       Based on our determination that Pfaff waived his right to challenge the trial court's ruling, we need not address the parties' "harmless error" arguments. Nor do we address the State's arguments pertaining to whether Sobek violated the court's sequestration order. Pfaff does not allege that Sobek violated the trial court's order when he conferred with the district attorney. Rather, Pfaff contends that the trial court's order at the conclusion of Metzen's testimony was a blanket order precluding him from seeking a sequestration order as to all future witnesses. As our discussion reveals, Pfaff over reads Judge Haughney's remarks.


source: Caselaw Access Project

author: DEININGER, EJ.

license: Public Domain

text:
    State of Wisconsin ex rel. Richard A. Ford, Petitioner, v. Mike Holm, Warden, Whiteville Correctional Facility, Respondent.
    Court of Appeals

      No. 02-1828-W.

      Oral argument July 23, 2003.

      Decided January 29, 2004.

    2004 WI App 22
    (Also reported in 676 N.W.2d 500.)

      On behalf of the petitioner, the cause was submitted on the briefs of Richard A. Ford, pro se, and James R.

      Troupis and Steven P. Means of Michael, Best & Friedrich, LLP, Madison, with oral argument by James R. Troupis.

    On behalf of the respondent, the cause was submitted on the briefs of Susan M. Crawford and James M. Freimuth, assistant attorneys general, and Peggy A. Lautenschlager, attorney general, with oral argument by James M. Freimuth.

    A nonparty brief was filed by Patricia K. Flood, first assistant state public defender, and Marla J. Stephens, director, appellate division, for the office of the state public defender, with oral argument by Marla J. Stephens, Milwaukee.
    Before Deininger, EJ., Dykman and Vergeront, JJ.

       Petition to review denied 4-20-04.

   DEININGER, EJ.

¶ 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, 183 Wis. 2d 587, 622-23, 516 N.W.2d 362 (1994), it would be inappropriate for us to require withdrawal motions to be filed in every case such as this. However, because we also conclude that the record before us is insufficient to permit us to determine whether Ford knowingly waived either the right to counsel or to an appeal, we refer the matter to the circuit court for evidentiary proceedings on the question of waiver.

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, 136 Wis. 2d 92, 98, 401 N.W.2d 748 (1987). The right to an appeal includes the right that "the appeal be a meaningful one." Id. at 99. An indigent defendant is constitutionally entitled to the appointment of counsel at public expense for the purpose of prosecuting his or her "one and only appeal.. . as of right" from a criminal conviction. Douglas v. California, 372 U.S. 353, 357-58 (1963); State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 648, 579 N.W.2d 698 (1998). The State Public Defender (SPD) contends, and no party disputes, that criminal defendants in Wisconsin also enjoy a state constitutional right to represent themselves on appeal if they knowingly and voluntarily make that choice and are competent to do so. It cites Wis. Const, art. I, § 21(2), as the source of this right and our opinion in Hlavinka v. Blunt, Ellis, & Loewi, Inc., 174 Wis. 2d 381, 394-95, 497 N.W.2d 756 (Ct. App. 1993) as supporting it.

¶ 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)), 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).

¶ 4. After appointed postconviction counsel has reviewed the transcripts and record, he or she must confer with the defendant regarding the defendant's right to appeal, the potential merit or lack thereof in pursuing either a postconviction motion or appeal, and if applicable, the availability of the "no-merit option." See Flores, 183 Wis. 2d at 605-07; Wis. Stat. Rule 809.32(1)(b). The Judicial Council Note accompanying the 2001 revisions to Wis. Stat. Rule 809.30 includes the following explanation of appointed postconviction counsel's role and duties:

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. To do 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 a pro se motion for sentence reduction. The letter also stated counsel's agreement with Ford's decision not to file an arguably meritorious plea withdrawal motion because of the potential for reinstatement of a dismissed charge that could result in exposing Ford to a longer sentence. Finally, counsel explained that he had declined to pursue a sentence reduction motion on Ford's behalf because counsel "saw no arguably meritorious grounds for such a motion."

¶ 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." 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 State v. Knight, 168 Wis. 2d 509, 522, 484 N.W.2d 540 (1992) (concluding that "to bring a claim of ineffective assistance of appellate counsel, a defendant must petition the appellate court that heard the appeal for a writ of habeas corpus"). In his petition, Ford asserts that he "never requested [his appointed postconviction counsel] to close his appeal" and that he was thus denied "his constitutional right to the effective assistance of counsel on his direct appeal." He requests that we "restore all. . . first appeal rights to petitioner and appoint an effective appellate counsel to litigate the petitioner's appellate claims."

¶ 10. We requested Ford's former counsel to respond to the petition and to specifically address "whether Ford intelligently and competently waived his right to the assistance of counsel." Counsel's response explained that during his conference with Ford, counsel offered to litigate a plea withdrawal motion that had arguable merit, but that Ford chose to forego that option because of the risk of increased sentence exposure. Counsel also said that he did not offer Ford "a No Merit report because [at the time] the plea withdrawal issue was arguably meritorious." Finally, counsel asserted that "Ford did not waive counsel; he waived his right to have me file an appeal for him," which in counsel's view, citing Flores, "relieved me of any obligation to continue my representation of him or to move to withdraw as counsel."

¶ 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.

ANALYSIS

¶ 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 the latter request, arguing that "appointed appellate counsel should always be required to file a motion to withdraw and, where necessary, a no-merit brief whenever counsel intends to end representation." The State would not have us reinstate Ford's direct appeal rights at this juncture, however, requesting instead that we "remand for an evidentiary hearing" on the question of knowing and intelligent waiver of counsel.

¶ 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 happened after counsel presented his client with options on how to proceed. Counsel has informed us that his former client affirmatively chose to forego further postconviction proceedings in this court or the circuit court, at least with representation by appointed counsel. Consequently, appointed counsel "closed the file" without filing a no-merit report or formally moving the court for permission to withdraw from further representation, which, he asserts (as does the SPD) is in accord with the supreme court's holding in Flores.

¶ 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, 183 Wis. 2d at 601. The court pointed out that the failure to file an appeal or no-merit report when a client desires such action would indeed constitute ineffective assistance, but that "there is no reason why a criminal defendant, who has been advised by counsel that an appeal of the defendant's case would have no merit, cannot agree with that assessment of counsel and voluntarily dismiss or forego the appeal." Id. at 616.

¶ 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 closing a case file," concluding that there was no constitutional basis for such a requirement when "both the attorney and the client agree that no appeal should be taken." Id. at 622. Finally, the court similarly declined an "invitation to formulate fixed and binding rules" regulating "how withdrawal is accomplished," id. at 622-23, although it did offer suggestions as to how counsel might document a client's consent to forego an appeal by employing confirmatory letters to the client which "could be considered strong evidence that counsel's actions were proper." Id. at 623.

¶ 20. Recently, in State v. Thornton, 2002 WI App 294, 259 Wis. 2d 157, 656 N.W.2d 45, we considered whether a defendant had been denied his constitutional right to counsel in his "matter of right" postconviction proceedings and appeal. Appointed postconviction counsel in Thornton moved this court to withdraw after he and his client disagreed regarding the existence of arguably meritorious grounds for appeal and the client rejected the no-merit option. Id., ¶ 3. We granted counsel's request to withdraw. Id., ¶ 4. In deciding Thornton's subsequent pro se appeal, we rejected his claim that his right to counsel on direct appeal had been violated because counsel had provided satisfactory documentation at the time of withdrawal that Thornton "received and acknowledged his understanding of the necessary information to render his waiver knowing and intelligent," and nothing in the record "call[ed] into question the voluntariness of Thornton's decision to proceed pro se or his competence to represent himself." Id., ¶ 24.

¶ 21. Here, of course, appointed counsel did not move to withdraw, and the record does not contain the type of unequivocal, contemporaneous documentation that was present in Thornton of a knowing and voluntary decision by Ford to forego postconviction or appellate proceedings represented by appointed counsel. We noted in Thornton that Wis. Stat. Rule 809.30(4) now provides a procedure for appointed postconviction counsel to move to withdraw from representation in either the circuit court or this one, the choice of forum depending on whether a notice of appeal has been filed. Thornton, 259 Wis. 2d 157, ¶ 3 n.1. When deciding the withdrawal motion, the court must consider whether the defendant has knowingly and voluntarily waived the right to counsel. Id., ¶ 14. Because the question was not before us in Thornton, however, we did not address whether "Rule 809.30(4), or other law, requires that a motion to withdraw be filed any time an attorney appointed by the [SPD] terminates his or her postconviction/appellate representation of a defendant." Id., ¶ 14 n.4.

¶ 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 counsel terminated representation without obtaining court permission to withdraw.

¶ 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-viction relief. The SPD counters, however, that although circumstances like these do occur, judicial economy is still served by permitting appointed post-conviction counsel to terminate representation "off-record." The SPD asserts that "mandating withdrawal motions in every case would . . . unnecessarily burden the courts to an even greater extent," citing statistics that, of the 2,882 SPD appointed cases closed in 2002, "874 were closed without any court action" after either a determination that no meritorious issues existed or a client chose not to pursue issues having arguable merit.

¶ 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, and, most importantly, be contrary to the supreme court's holding in Flores. We agree on the last point. Like counsel in this case, counsel in Flores closed her file with no further court action after assessing the merits of potential postconviction actions, conferring with her client and determining that the client did not wish her to file a no-merit report. See Flores, 183 Wis. 2d at 618-19. As we have noted, the supreme court expressly concluded that no formal request to withdraw was required under those circumstances, id. at 622, and it refused to "formulate fixed and binding rules in this area at this time," id. at 623. Rather, the court rejected the claim of ineffective assistance of appellate counsel on the basis of evidence, presented long after the off-record withdrawal, that established (1) the defendant had been informed of his appeal rights and of the no-merit option, and (2) he had agreed ("albeit reluctantly") with counsel's conclusion that "the appeal had no merit and that the file should be closed." Id. at 621.

¶ 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, 241 F.3d 594, 596 (7th Cir. 2001) ("There is scant evidence of waiver .... [T]he state court did not hold a hearing or use any other procedure to ascertain the truth."); Jones v. Berge, 246 F. Supp. 2d 1045, 1058 (E.D. Wis. 2003) ("[T]he court of appeals' findings ... are clearly insufficient to show a knowing and intelligent waiver.... The record does not support the court's assumption."); Walker v. Mc- Caughtry, 72 F. Supp. 2d 1025, 1035 (E.D. Wis. 1999) ("[The Wisconsin Court of Appeals] made no factual findings regarding. .. the circumstances surrounding [counsel]'s withdrawal from the case. No state court.. . found that Walker had waived his right to counsel, either."); Wisconsin ex rel. Toliver v. McCaughtry, 72 F. Supp. 2d 960, 976 (1999) ("The only evidence before the Wisconsin Court of Appeals when it found waiver ... is wholly inadequate to support a finding of waiver.").

¶ 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 of his right to appeal, the defendant is presumed to have knowingly and voluntarily waived his right to a direct appeal of his conviction. See Flores, 183 Wis. 2d at 617 (citing Thiesen v. State, 86 Wis. 2d 562, 568, 273 N.W.2d 314 (1979)). We agree with the State that this presumption may no longer be valid once a defendant has invoked the right of direct appeal by filing a notice of intent to pursue postconviction relief, but this does not mean that a contemporaneous court inquiry is required when the defendant later chooses to forego that right by consenting to having postconviction counsel "close the file." See Flores, 183 Wis. 2d at 622.

¶ 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, an evidentiary hearing may be required to resolve the dispute. See id. at 621 ("The nature and sufficiency of either the defendant's acquiescence or disagreement or the actions of counsel will depend upon the particular facts of each case."). It is not until such a claim is made, however, that a potential constitutional violation is raised, and although an after-the-fact waiver inquiry may be cumbersome for all concerned, we see no constitutional imperative for earlier judicial involvement.

¶ 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.

¶ 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 a given case. If a defendant rejects the no-merit option but intends to seek privately retained counsel or to proceed pro se, he clearly does not intend to waive the right to appeal. If, however, the defendant chooses for other reasons to forego seeking relief from a conviction, on grounds which appointed counsel believes may have merit and is willing to pursue, the defendant is arguably waiving both the right to appeal and the right to counsel as well. We thus apply the precedents discussing the waiver of both rights. We concluded in Thornton that a knowing and intelligent waiver of postconviction counsel requires a showing that the defendant was aware (1) of the rights discussed in Flores ("to an appeal, to the assistance of counsel for the appeal, and to opt for a no-merit report"); (2) of "the dangers and disadvantages of proceeding pro se"; and (3) that if appointed counsel withdraws from representation, successor counsel would not be appointed to represent the defendant in postconviction proceedings. Thornton, 259 Wis. 2d 157, ¶ 21. When the waiver of the right to appeal is at issue, a defendant must be shown to have known of that right and of his or her options, and "it must be apparent that the defendant 'either suggested, acquiesced in or concurred in or with the decision'" to forego an appeal, postconviction motion, or the no-merit option. Flores, 183 Wis. 2d at 617 (citation omitted).

¶ 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, 183 Wis. 2d at 606-07 (noting that information about the no-merit option "only becomes necessary when the No Merit option becomes relevant to the defendant's decision . . . [and] is not necessary when the defendant does not desire to pursue an appeal"). It is apparent from counsel's confirmatory letter, however, that counsel was aware of Ford's intention to seek "a time cut" from the trial court, apparently pro se. Ford claims in his Knight petition that he "never requested [appointed postconviction counsel] to close his appeal," that "he did not quite understand" a form he claims to have received outlining his options, and that he thought his counsel was filing a no-merit report.

¶ 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 motion was no modification motion at all." It asks us to conclude that Ford's "belated claim that counsel was to file a no merit report" is insufficient to "rebut the presumptions . . . that counsel provided effective representation and that a valid appeal waiver occurred . . . We cannot do so.

¶ 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, 183 Wis. 2d at 623.

¶ 36. We are not a fact-finding court. See Wurtz v. Fleischman, 97 Wis. 2d 100, 107 n.3, 293 N.W.2d 155 (1980) (noting that appellate courts cannot make findings of fact if the facts are disputed). Although we may be able to determine that a knowing and voluntary waiver occurred on the basis of uncontested documentation that necessary information was provided to a defendant and the defendant thereafter elected a certain option, see, e.g., Thornton, 259 Wis. 2d 157, ¶ 24, the present record contains no unequivocal acknowl-edgement by Ford that he received all necessary information or chose to have appointed counsel close the file. We are left with only unsworn assertions of counsel in letters to Ford and responses to this court, assertions that are disputed by Ford.

¶ 37. Accordingly, we refer the matter to the Rich-land County Circuit Court for a determination of whether Ford knowingly and voluntarily waived his right to pursue a direct appeal of his conviction or, alternatively, his right to be represented by counsel in postconviction proceedings. The circuit court should conduct an evidentiary hearing and make specific factual findings regarding what information was provided to Ford, what options and advice were provided by counsel and what choices Ford made and communicated to counsel before counsel closed his file. Given the State's contention that Ford's writ petition may be barred by laches, the circuit court should also make findings regarding the reasons Ford waited over three years to file his petition. The court's findings and a transcript of any proceedings on the referred issues shall be filed with this court within ninety days of remand. If the circuit court is unable to comply with this deadline, that fact should be communicated to us, along with a proposed alternate date for filing the necessary findings and transcript.

CONCLUSION

¶ 38. For the reasons discussed above, we refer to the circuit court for evidentiary proceedings.

By the Court. — Cause referred with directions.

       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, 372 U.S. 353, 357-58 (1963); but see McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 436 (1988) ("If a convicted defendant elects to appeal, he retains the Sixth Amendment right to representation by competent counsel....").

       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, 2002 WI App 294, 259 Wis. 2d 157, 656 N.W.2d 45. Because it appears that we were aware that Ford intended to proceed pro se in lieu of continued representation by appointed counsel, we should have made further inquiries of Ford at that time, as we did in State v. Marioneaux, No. 02-1791-CR, unpublished slip op. at ¶¶ 3-4 (WI App Jan. 29, 2004).

       The court in State v. Knight, 168 Wis. 2d 509, 522, 484 N.W.2d 540 (1992), referred to "appellate counsel," as opposed to "postconviction counsel." The terms are sometimes used interchangeably, but where a distinction is drawn, it usually involves whether the representation at issue involved proceedings before this court or the circuit court. See State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 678-81, 556 N.W.2d 136 (Ct. App. 1996) (holding that claims of ineffective assistance of "post-conviction counsel," such as the failure to file a postconviction motion in the trial court for plea withdrawal, must be raised in the trial court rather than by a Knight petition to this court). Although the allegation of ineffective assistance of counsel in this case involves the alleged actions or omissions of counsel prior to the filing of an appeal, it is nonetheless properly raised by way of a Knight petition in this court. See State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 798-99, 565 N.W.2d 805 (Ct. App. 1997) ("Counsel's failure to commence an appeal under either Rule 809.30 or 809.32, regardless of whether such an appeal had to be preceded by a postconviction motion, can be challenged by a Knight petition in this court because counsel's inaction in this court is at issue." Footnote omitted.).

       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 retroactive enlargement of time. Our dismissal of the attempted appeal has no effect on our separate consideration of Ford's Knight petition.

        See Betts v. Litscher, 241 F.3d 594 (7th Cir. 2001); Jones v. Berge, 246 F. Supp. 2d 1045 (E.D. Wis. 2003); Walker v. McCaughtry, 72 F. Supp. 2d 1025 (E.D. Wis. 1999). A defendant's habeas corpus petition was also granted in Wisconsin ex rel. Toliver v. McCaughtry, 72 F. Supp. 2d 960, 968, 979 (1999), even though Toliver's counsel had successfully moved this court to withdraw. The Federal District Court concluded in Toliver that we erroneously permitted counsel to withdraw absent a proper record showing that the defendant had knowingly waived his right to counsel. Id. at 979.

       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, that if appointed postconviction counsel moves to withdraw, he or she must disclose to the court counsel's assessment of the merits of the client's case.

       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, 183 Wis. 2d 587, 620, 516 N.W.2d 362 (1994). Similarly, the complete denial of the assistance of counsel, whether at trial or on appeal, is legally presumed to result in prejudice to the defendant. See Penson v. Ohio, 488 U.S. 75, 88 (1988).

       We actually said in Thornton that a defendant must be made aware that successor counsel "may" not be appointed. Thornton, 259 Wis. 2d 157, ¶ 21. It has become apparent to us, however, that when appointed counsel terminates representation after concluding that an appeal or postconviction motion would lack arguable merit, the SPD will not appoint successor counsel. And, unless a defendant prevails on a Knight petition such as the one before us now, we will not order the SPD to do so, nor will we make such an appointment ourselves. We thus conclude that defendants should be told that the nonavailability of successor appointed counsel is a certainty, not merely a possibility.