Joshua M. Wren v. Reed Richardson ( 2019 )

2019 WI 110SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP880-W
COMPLETE TITLE: State of Wisconsin ex rel. Joshua M. Wren,
Petitioner-Petitioner,
v.
Reed Richardson Warden,
Respondent.
REVIEW OF DECISION OF THE COURT OF APPEALS
OPINION FILED: December 26, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 6, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Carolina Stark
JUSTICES:
HAGEDORN, J., delivered the majority opinion of the court, in
which ROGGENSACK, C.J., ZIEGLER and KELLY, JJ., joined. ANN
WALSH BRADLEY, J., filed a dissenting opinion, in which REBECCA
GRASSL BRADLEY, and DALLET, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner-petitioner, there were briefs filed by
John T. Wasielewski and Wasielewski & Erickson, Milwaukee. There
was an oral argument by John T. Wasielewki.
For the respondent-respondent, there was a brief filed by
Sara Lynn Shaeffer, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Sara Lynn Shaeffer.
2019 WI 110NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP880-W
(L.C. No. 2006CF2518)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin ex rel. Joshua M. Wren,
Petitioner-Petitioner,
FILED
v.
DEC 26, 2019
Reed Richardson Warden,
Sheila T. Reiff
Respondent. Clerk of Supreme Court
HAGEDORN, J., delivered the majority opinion of the court, in
which ROGGENSACK, C.J., and ZIEGLER and KELLY, JJ., joined. ANN
WALSH BRADLEY, J., filed a dissenting opinion, in which REBECCA
GRASSL BRADLEY, and DALLET, JJ., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 BRIAN HAGEDORN, J. After his conviction in 2007 for
reckless homicide, Joshua M. Wren alleges his counsel failed to
file a notice of intent to pursue postconviction relief as
promised, causing Wren to lose his direct appeal rights. Wren
knew this, however, by sometime in 2010 or 2011. Over the next
several years, Wren filed four pro se motions relating to his
No. 2017AP880-W
conviction, none of which raised his counsel's alleged blunders.
Then, in 2017, Wren filed a petition for a writ of habeas corpus
asserting ineffective assistance of counsel for failing to
appeal, and seeking to reinstate his direct appeal rights. In
defense, the State pled laches, resting its case on the fact
that the attorney who made the alleged missteps passed away in
2014, and no case files or notes remained. The court of appeals
agreed with the State, imposed laches, and denied the petition.1
¶2 Before us, Wren asserts that our adoption of laches as
an available defense to a habeas petition was ill-considered and
should be reexamined. But even if laches can bar his claim,
Wren maintains that the State failed to prove the elements, and
that the court of appeals erroneously exercised its discretion
in applying laches here.
¶3 We disagree. This court held just a few months ago
that the State may assert laches as a defense to a habeas
petition. See State ex rel. Lopez-Quintero v. Dittmann, 2019
WI 58, ¶10, 387 Wis. 2d 50, 928 N.W.2d 480. We decline to
revisit that ruling today. On the merits, we agree with the
court of appeals that the State established unreasonable delay
and prejudice, the two laches elements Wren challenges. We
further conclude that the court of appeals did not erroneously
exercise its discretion by applying laches and barring relief.
State ex rel. Wren v. Richardson, No.
1 2017AP880-W,
unpublished slip op. (Wis. Ct. App. Nov. 12, 2018).
2
No. 2017AP880-W
I. BACKGROUND
¶4 In early 2006, 15-year-old Joshua Wren shot and killed
a man.2 He pled guilty to first-degree reckless homicide, and in
March 2007 was sentenced to 21 years of initial confinement and
nine years of extended supervision——considerably more than
Wren's counsel suggested and longer than was recommended in the
presentence investigation report (PSI).3
¶5 On the day of sentencing, Wren's attorney, Nikola
Kostich, filed the "Notice of Right to Seek Postconviction
Relief"; this form contained a checked box indicating Wren was
undecided about pursuing postconviction relief. No notice of
intent to seek postconviction relief was ever filed.
¶6 During the next ten years, Wren filed and litigated
four pro se motions related to his conviction.
 In 2010, he unsuccessfully moved to vacate his DNA
surcharge. The circuit court denied his 2011 motion for
reconsideration.
 In 2013, Wren again challenged the DNA surcharge and also
sought to amend the judgment of conviction regarding his
The State charged Wren with one count of first-degree
2
reckless homicide. The complaint alleged that, in an interview
conducted by a Milwaukee police detective, Wren admitted he
"took out a revolver from his left sweatshirt pocket and pointed
the gun up in the air and fired a shot." In the same interview,
Wren stated that "he shot this man on accident."
The PSI recommended 13 years of initial confinement and
3
five to six years of extended supervision. In exchange for
Wren's guilty plea, the State agreed not to seek a specific
sentence.
3
No. 2017AP880-W
restitution obligations. The circuit court denied the DNA
surcharge challenge once again, but did amend the judgment
of conviction to clarify his restitution requirements.4
 In 2015, he sought a copy of the PSI. This motion was also
denied, in part on the grounds that Wren previously had an
opportunity to review the report and "the direct appeal
deadline ha[d] long since expired."
 In 2016, Wren sought sentence modification, arguing that
the circuit court relied on improper facts (an alleged
beating by Wren of a fellow prisoner). The motion was
denied as untimely filed.
¶7 Finally, in 2017, more than a decade after sentencing,
Wren filed a Knight petition5 in the court of appeals seeking to
reinstate his direct appeal rights on the grounds of ineffective
assistance of counsel. In Wren's telling, he and his family
wanted to appeal and made multiple attempts to communicate this
to Kostich. Yet they heard nothing back. The petition
described Kostich's disciplinary history to substantiate his
non-responsiveness.6 The long and short of it, according to
Specifically, the circuit court amended the judgment "to
4
reflect that restitution shall be paid from up to 25% of the
defendant's prison earnings (rather than funds)."
"Habeas petitions to the court of appeals alleging
5
ineffective assistance of appellate counsel are often referred
to as 'Knight petitions.'" State ex rel. Kyles v. Pollard, 2014
WI 38, ¶27 n.11, 354 Wis. 2d 626, 847 N.W.2d 805; see also State
v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).
The petition notes that Wren's family discovered Kostich's
6
"license to practice law in Wisconsin was suspended for 60 days
in November 2012"; that he "was reprimanded in 1986 for a
4
No. 2017AP880-W
Wren's petition, is that Kostich promised to appeal, did not do
so, and never responded to multiple inquiries by Wren and his
family. Wren insists he was left entirely without counsel in
violation of his Sixth Amendment rights, and should therefore
have his direct appeal rights reinstated.
¶8 The court of appeals remanded the matter to the
circuit court for an evidentiary hearing. However, Kostich
passed away in 2014, so the State had no witnesses, nor were any
of Kostich's case files located. Nonetheless, the circuit court
heard from Wren and three of his family members, and rendered
factual findings based on the evidence presented.
¶9 Relevant circuit court findings include the following:
Wren signed the Notice of Right to Seek Postconviction Relief
six days before sentencing, he did not personally check the box
indicating he was undecided about pursuing postconviction
relief, and Wren was unaware which box would end up being
checked. Wren contacted Kostich in a timely manner, and Kostich
told Wren that he would appeal. Several of Wren's family
members spoke with Kostich immediately after the original
sentencing hearing, and Kostich told them an appeal would be
forthcoming. After the deadline to appeal had passed, Wren
wrote Kostich regarding the status of the appeal and never heard
back. Wren's mother, father, and sister made similar efforts to
criminal conviction of failing to file tax returns"; and that
"in 2010 he was reprimanded for representing a person on a
criminal charge, in which he had previously consulted with the
victim in the criminal case about potential civil action against
the person ultimately represented in the criminal matter."
5
No. 2017AP880-W
reach Kostich before and after the appeal deadline passed, all
to no avail. Kostich "intentionally led" Wren and his family to
believe he was going to timely file postconviction relief, but
he failed to do so and notified no one. Kostich failed to
contact Wren or his family after sentencing, despite their
persistent efforts.
¶10 In accordance with Wren's testimony, the circuit court
additionally found that sometime in 2010 or 2011, Wren knew no
appeal had been filed. Though he sought relief of various kinds
through four other pro se motions, Wren was unaware that he
could petition to reinstate his direct appeal rights. He
"wanted to seek postconviction relief regarding ineffective
assistance of trial counsel and the sentence, but he did not
know how to do so." Wren eventually learned what to do and how
to do it after communicating with an incarcerated uncle, and he
filed the present habeas petition within three to four months.
¶11 Following the evidentiary hearing, the court of
appeals entertained briefing based on the circuit court's
findings. The State did not challenge the facts found as
clearly erroneous, nor did it address the merits of Wren's
ineffective assistance of counsel argument because it could not;
the State had no evidence or witnesses to present regarding what
happened and why. Rather, it raised the defense of laches,
essentially arguing that its hands were tied due to Wren's delay
and his former counsel's intervening death. The court of
appeals concluded that the State proved the requisite legal
elements of laches, and exercising its own discretion,
6
No. 2017AP880-W
determined it was equitable to apply laches in this case. We
granted Wren's petition for review.
II. DISCUSSION
¶12 Wren raises three arguments against the application of
laches to his case.7 First, he contends the doctrine of laches
should not apply to habeas petitions at all. Second, he asserts
the State failed to prove two of the three elements of laches——
unreasonable delay and prejudice. Finally, Wren maintains the
court of appeals erroneously exercised its discretion in
choosing to apply laches to his petition.
A. Laches Is a Defense to a Habeas Petition
¶13 Wren begins with a request that we reexamine our
adoption of the laches defense to habeas petitions. His
principal argument is that we incorporated laches into our
habeas corpus jurisprudence somewhat thoughtlessly in two court
of appeals opinions.8 Whatever merit those criticisms may have,
7 Wren also argues the merits of his habeas petition and
asks us to reinstate his direct appeal rights. However, because
we affirm the court of appeals' application of laches, we need
not address this argument.
8 Laches was first explicitly mentioned as a defense against
a habeas petition in Wisconsin in 1986. State ex rel. McMillian
v. Dickey, 132 Wis. 2d 266, 281, 392 N.W.2d 453 (Ct. App. 1986)
("While we recognize that a habeas proceeding may be dismissed
under the equitable doctrine of laches, the delay on the part of
the petitioner must be unreasonable."), abrogated on other
grounds by State ex rel. Coleman v. McCaughtry, 2006 WI 49, 290
Wis. 2d 352, 714 N.W.2d 900. A later court of appeals decision
cited McMillian for the proposition that "[a]s an equitable
7
No. 2017AP880-W
however, we had occasion to directly answer this question last
term. In Lopez-Quintero, we made clear that the State may raise
laches as an affirmative defense to a habeas petition. 387
Wis. 2d 50, ¶16. Moreover, Wren did not raise and brief this
issue below, nor was it presented in Wren's petition for review.
Having just considered the matter, we decline Wren's invitation
to reconsider it.
B. Laches Was Properly Applied to Wren's Habeas Petition
¶14 "Laches is founded on the notion that equity aids the
vigilant, and not those who sleep on their rights to the
detriment of the opposing party . . . ." 27A Am. Jur. 2d Equity
§ 108.9 It is, at root, an equitable defense to an equitable
claim.10 Though different jurisdictions structure the analytical
doctrine, habeas corpus is subject to the doctrine of laches."
State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 800, 565
N.W.2d 805 (Ct. App. 1997), overruled on other grounds by State
ex rel. Lopez-Quintero v. Dittmann, 2019 WI 58, 387 Wis. 2d 50,
928 N.W.2d 480.
Outside the context of habeas corpus, laches is a well-
established equitable principle in Wisconsin jurisprudence. As
early as 1859, this court stated that "[u]nreasonable delay, and
mere lapse of time, independently of any statute of limitations,
constitute a defense in a court of equity." Sheldon v.
Rockwell, 9 Wis. 158 (*166), 162 (*181) (1859).
9 See also Kenosha County v. Town of Paris, 148 Wis. 2d 175,
188, 434 N.W.2d 801 (Ct. App. 1988) ("equity aids the vigilant,
not those who sleep on their rights").
10A habeas petition is an equitable claim, so application
of an equitable defense like laches makes sense, especially
where habeas petitions can be filed years after the conviction.
See State ex rel. Dowe v. Circuit Court for Waukesha Cty., 184
Wis. 2d 724, 728-29, 516 N.W.2d 714 (1994) ("As an equitable
8
No. 2017AP880-W
framework somewhat differently, the doctrine is consistent in
concept: did a party delay without good reason in asserting its
rights, and did the delay prejudice the party seeking to defend
that claim.
¶15 In Wisconsin, application of laches to habeas
petitions proceeds in two steps. First, the party asserting the
defense——the State in this instance——must prove the following
three elements: "(1) unreasonable delay in filing the habeas
petition, (2) lack of knowledge on the part of the State that
the petitioner would be asserting the habeas claim, and (3)
prejudice to the State." Lopez-Quintero, 387 Wis. 2d 50, ¶16.
Second, even if the State proves all three elements, the court
may——in its discretion——choose not to apply laches if it
determines that application of the defense is not appropriate
and equitable. See State ex rel. Washington v. State, 2012
WI App 74, ¶26, 343 Wis. 2d 434, 819 N.W.2d 305.
¶16 Whether the State proved all three elements under step
one is a legal question we review de novo. State ex rel.
Coleman v. McCaughtry, 2006 WI 49, ¶17, 290 Wis. 2d 352, 714
N.W.2d 900. Assuming step one is satisfied, we review the
decision to apply laches under step two for an erroneous
exercise of discretion. Id.doctrine . . . habeas corpus is confined to situations in which
there is a pressing need for relief or where the process or
judgment upon which a prisoner is held is void.").
9
No. 2017AP880-W
¶17 Wren asserts that the State failed to prove two of the
three elements——unreasonable delay and prejudice.11 And even if
the State did meet its burden, Wren maintains the court of
appeals erroneously chose to apply laches in his case.
1. The State Proved Unreasonable Delay
¶18 Whether a delay is reasonable is case specific; we
look at the totality of circumstances. State ex rel. McMillian
v. Dickey, 132 Wis. 2d 266, 281, 392 N.W.2d 453 (Ct. App. 1986)
("What is reasonable varies from case to case and involves the
totality of the circumstances."), abrogated on other grounds by
Coleman, 290 Wis. 2d 352; see also 27A Am. Jur. 2d Equity § 131
("Whether a party's delay is unreasonable depends on the
circumstances of the particular case.").
¶19 In rendering its conclusion, the court of appeals
zeroed in on two factual findings. First, Wren was aware no
appeal had been filed by 2010 or 2011. And during the
intervening time period, he filed four separate pro se motions,
none of which raised the issue presented in this habeas
petition. The court of appeals held that the six-year delay
from the time he knew no appeal had been filed——a full ten years
after the deadline to seek postconviction relief——was
unreasonably long.
Wren concedes the second element, i.e., the State lacked
11
knowledge that he would be asserting the habeas claim.
10
No. 2017AP880-W
¶20 As an initial matter, unreasonable delay in laches is
based not on what litigants know, but what they might have known
with the exercise of reasonable diligence. This underlying
constructive knowledge requirement arises from the general rule
that "ignorance of one's legal rights is not a reasonable excuse
in a laches case." 27A Am. Jur. 2d Equity § 138.12 "Where the
question of laches is in issue, the plaintiff is chargeable with
such knowledge as he might have obtained upon inquiry, provided
the facts already known by him were such as to put a man of
ordinary prudence upon inquiry." Melms v. Pabst Brewing Co., 93
Wis. 153, 174, 66 N.W. 518 (1896) (citations omitted). To be
sure, what we expect will vary from case to case and litigant to
litigant. But the expectation of reasonable diligence is firm
nonetheless.13
¶21 Thus, the question is when Wren either knew or should
have known he had a potential claim. We agree with the court of
appeals that the delay clock started running no later than 2010
or 2011 when Wren, by his own admission, learned no appeal had
been filed and had long since heard nothing from his attorney.
See also Jones v. United States, 6 Cl. Ct. 531, 533
12
(1984) ("Where laches is raised, knowledge of the law is imputed
to all plaintiffs. Consequently, professed ignorance of one's
legal rights does not justify delay in filing suit.").
See also 27A Am. Jur. 2d Equity § 139 ("The correct
13
inquiry in determining whether a claimant's conduct resulted in
a want of due diligence requires focus not upon what the
plaintiff knows, but what he or she might have known, by the use
of the means of information within his or her reach, as the law
requires a party to discover those facts that were discoverable
through the exercise of reasonable diligence.").
11
No. 2017AP880-W
After obtaining this knowledge, Wren researched and leveraged
his available resources to craft four separate pro se motions
relating to his conviction and sentence——none even hinting at
the claims raised before us.14 After four attempts to seek
various kinds of other postconviction relief, we agree with the
court of appeals that a habeas petition coming ten years after
his conviction and six years after he knew his attorney didn't
file the appeal he was allegedly promised is a delay without
good reason.
¶22 Wren raises two principal objections in response.
First, he didn't know he could make such a claim and didn't know
how to do so; and when he did discover this possible claim, he
timely brought it within three to four months. Second, Wren
proffers that any delay is actually the State's fault, and
that's why he was supposed to have counsel in the first place.
¶23 Wren's first objection, echoed by the dissent, is
really an effort to except Wren from the constructive knowledge
requirement we apply to all other litigants. The not-so-silent
argument being made is that Wren is less capable than others and
should be held to a lower standard. However, we regularly
14 His first two motions dealt with the DNA surcharge and
restitution award. It was not until his third motion in 2015
that he turned his attention to his sentence, the issue he
states he would like to challenge if his direct appeal rights
are reinstated. But even his 2016 motion for sentence
modification was based on the circuit court's purported reliance
on an improper fact——again, nothing suggesting a broader
challenge to his conviction or sentence, or to his trial
counsel's effectiveness.
12
No. 2017AP880-W
require legally untrained litigants to assert their rights in a
timely manner.15 Nothing prevented Wren from contacting another
attorney. Nothing prevented Wren from researching available
options to ensure he took advantage of every possible legal
argument he could make. It surely cannot be that 20-year-olds
(Wren's approximate age when he found out no appeal was
forthcoming) are deemed incompetent. And while the PSI noted
Wren had a second grade reading level at the time of sentencing,
that detail alone does not mean he cannot research, consult
others, and find out what needs to be done. In fact, Wren did
just this when he filed four pro se motions regarding other
matters prior to filing his habeas petition. This reflects
someone who is more than capable of being resourceful.16
¶24 Wren's paramount objection seems to be that as a pro
se litigant whose postconviction attorney abandoned him, any
delay is the State's fault, not his. Incorrect. As we explain
See infra, ¶25.
15 Courts have long recognized that a
violation of constitutional rights——and ineffective assistance
of counsel is a violation of the Sixth Amendment——must be timely
asserted even in criminal cases. See Yakus v. United States,
321 U.S. 414, 444 (1944) ("No procedural principle is more
familiar to this Court than that a constitutional right may be
forfeited in criminal as well as civil cases by the failure to
make timely assertion of the right before a tribunal having
jurisdiction to determine it.").
For example, Wren noted in his habeas petition that his
16
family discovered Kostich's disciplinary history. Moreover, the
circuit court made no findings suggesting that Wren had the kind
of severe mental limitations that might call for even broader
latitude than we normally give pro se litigants.
13
No. 2017AP880-W
below, we have long required pro se litigants, just like those
with an attorney, to act reasonably in defense of their rights.
¶25 Pro se litigants are generally granted "a degree of
leeway" in recognition of the fact that they are ordinarily
unfamiliar with the procedural rules and substantive law that
might govern their appeal. Rutherford v. LIRC, 2008 WI App 66,
¶27, 309 Wis. 2d 498, 752 N.W.2d 897. But by definition, "a
degree of leeway" means the additional leniency will run out at
some point. Thus, for example, while we construe pro se
petitions, motions, and briefs to make the most intelligible
argument we can discern, we do not impute to pro se litigants
the best argument they could have, but did not, make.17 And
while pro se litigants are given leeway in the style of a
motion, we ordinarily hold them to strict deadlines, whether
they know about them or not.18 In other words, we generally do
not hold pro se litigants only to deadlines or arguments that
See State v. Romero-Georgana, 2014 WI 83, ¶69, 360
17
Wis. 2d 522, 849 N.W.2d 668 ("Although we liberally construe
filings by pro se litigants, . . . there is a limit to our
lenience. A reviewing court might avert its eyes from the flaws
on the peripheries, but it will not ignore obvious
insufficiencies at the center of a motion." (internal citation
omitted)).
See Waushara County v. Graf, 166 Wis. 2d 442, 452, 480
18
N.W.2d 16 (1992) ("Pro se appellants must satisfy all procedural
requirements, unless those requirements are waived by the court.
They are bound by the same rules that apply to attorneys on
appeal. The right to self-representation is '[not] a license
not to comply with relevant rules of procedural and substantive
law.'" (quoting Farretta v. California, 422 U.S. 806, 834 n.46
(1975))).
14
No. 2017AP880-W
they know; we hold them to deadlines and arguments we expect
them to discover with reasonable diligence. This means that
once Wren no longer had a lawyer representing him, he was not
free to do nothing to address the claims he raised in his habeas
petition. Rather, he had an independent obligation to act——the
same standard we apply to all pro se litigants.
¶26 The postconviction relief process is instructive on
this point. Following a direct appeal, defendants seeking to
attack their criminal convictions may do so through a motion
under Wis. Stat. § 974.06 (2017-18).19 But this form of relief
comes with a significant restriction. Under subsection (4),
unless a "sufficient reason" is given, any legal issues that
could have been raised in a prior motion may not be brought in a
subsequent § 974.06 motion. § 974.06(4). And in 1994, this
court made clear that if the issue could have been raised on
direct appeal, the litigant has lost the opportunity to bring it
under § 974.06. State v. Escalona-Naranjo, 185 Wis. 2d 168,
173, 517 N.W.2d 157 (1994).20
19All subsequent references to the Wisconsin Statutes are
to the 2017-18 version.
20This is no outlier; State v. Escalona-Naranjo has been
cited thousands of times in Wisconsin courts. 185 Wis. 2d 168,
517 N.W.2d 157 (1994).
15
No. 2017AP880-W
¶27 The vast majority of motions under Wis. Stat. § 974.06are filed by pro se litigants.21 The statute's strictures are
not ignored or relaxed for pro se litigants; we apply the same
rules to everyone. This means that even a potentially
meritorious constitutional claim on a petitioner's third
§ 974.06 motion——a claim for ineffective assistance of counsel,
for example——is a nonstarter if it could have been brought on
direct appeal or in the prior § 974.06 motions.22 These pro se
litigants, no less than Wren here, are almost uniformly
untrained in the law. Yet we expect them to exercise reasonable
diligence to learn all potentially meritorious claims and to
raise them in their first § 974.06 motion. If they don't, the
claim is procedurally barred, whatever its merits may be.23
21This is in large part because there is no constitutional
right to counsel on a collateral attack. Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987) ("We have never held that
prisoners have a constitutional right to counsel when mounting
collateral attacks upon their convictions, . . . and we decline
to so hold today. Our cases establish that the right to
appointed counsel extends to the first appeal of right, and no
further." (internal citation omitted)).
22See, e.g., Escalona-Naranjo, 185 Wis. 2d at 186("[Escalona-Naranjo] has not alleged a sufficient reason as to
why his allegation of ineffective assistance of trial counsel
could not have been raised when he filed his [Wis. Stat.
§] 974.02 motion for a new trial."); Romero-Georgana, 360
Wis. 2d 522, ¶5 ("[T]he defendant has not offered a sufficient
reason in his third postconviction motion for failing to raise
his [Wis. Stat.] § 974.06 claim [for ineffective assistance of
counsel] in his second postconviction motion. . . .
Consequently, the defendant's claim is barred.").
23Unless, of course, an exception in Wis. Stat. § 974.06 is
triggered.
16
No. 2017AP880-W
¶28 Wren appears to believe——as does the dissent——that
ineffective assistance of counsel is an exception to these
principles. Yet no authority to this effect is cited, nor are
we aware of any. Without question, if Wren told Kostich to file
an appeal and Kostich failed to do so, that failure would
establish constitutionally deficient performance, and prejudice
is presumed. See Garza v. Idaho, 139 S. Ct. 738, 744 (2019)
("[P]rejudice is presumed 'when counsel's constitutionally
deficient performance deprives a defendant of an appeal that he
otherwise would have taken.'" (quoting Roe v. Flores-Ortega, 528
U.S. 470, 484 (2000))). The law is clear that Wren is not
liable for the faults of his constitutionally deficient counsel.
See Coleman v. Thompson, 501 U.S. 722, 754 (1991).
¶29 But Wren and the dissent take this proposition far
afield from its more modest foundations. They argue that when a
defendant alleges he has been denied his Sixth Amendment right
to effective assistance of counsel, any subsequent delay must be
attributed to the State due to its failure to provide adequate
counsel in the first instance. Or said another way, if his
counsel failed, Wren is relieved of any further obligation to
assert his own rights. Or maybe more charitably, because he
didn't know what actions to take, Wren was absolved from taking
any action at all.24 There are two problems with this line of
argument.
Wren also argues he did not know he should file a habeas
24
petition in the court of appeals until our 2014 decision in
Kyles, 354 Wis. 2d 626. But this decision only clarified where
such a claim should be filed. Nothing in Kyles announced
17
No. 2017AP880-W
¶30 First, it assumes Wren's Sixth Amendment right to
counsel was denied. But that is the very claim Wren wishes to
maintain if this habeas petition is successful. One cannot
assume his ultimate claim will be successful in order to assess
whether he delayed in bringing that very claim.
¶31 Second, and more to the point, Wren's argument that
laches cannot apply when counsel fails to appeal as promised is
without any legal support in Wisconsin. The issue before us is
not, did Wren, with counsel, miss the deadline. The question
is, knowing counsel did not file an appeal, did Wren himself
unreasonably delay in seeking relief. If the dissent is correct
that any delay of the sort alleged here is attributable to the
State, then Wren could wait ten, twenty, or even thirty years to
raise his claim, regardless of any impact on the State's ability
to address the merits of an alleged ineffective assistance
claim. This cannot be correct. Pro se litigants, including
those who claim their trial counsel did not serve them by filing
an appeal, still have an independent obligation to timely raise
these issues with the court on their own. A pro se litigant has
no license to "lay in the weeds and wait to raise an issue of
anything new related to the substance or timing of a petition to
reinstate direct appeal rights because of ineffective assistance
of trial counsel. The issue here is not that Wren timely raised
the claim in the wrong court. It is that he untimely raised the
claim.
This argument is also unpersuasive in light of the fact
that, notwithstanding his filing of several postconviction
motions in the interim, Wren did not file his habeas petition
until three years after Kyles was decided.
18
No. 2017AP880-W
potential merit." Washington, 343 Wis. 2d 434, ¶23. After
knowing no appeal had been filed, and after knowing his counsel
had not responded to him, Wren had an obligation to exercise
reasonable diligence and raise the issues in a timely manner.
Wren's delay of six to seven years from the time he knew this is
not attributable to the State; it is on Wren. Put simply, Wren
had some time to figure this out, but not unlimited time. Here,
his delay was unreasonable.
2. The State Proved Prejudice
¶32 Wren's unreasonable delay alone is not sufficient to
support the application of laches. The State also must prove
that the unreasonable delay prejudiced its defense against the
habeas petition.25 Coleman, 290 Wis. 2d 352, ¶19. "What amounts
25Many jurisdictions include in their prejudice analysis
whether the delay prejudices the state's ability to address the
underlying merits should the petition be granted. The State has
made no such argument in this case, but it is a common position
around the country. See, e.g., United States v. Darnell, 716
F.2d 479, 480 (7th Cir. 1983) ("The government's ability to meet
successfully the allegations of the motion or to present a case
against the defendant if he is granted a new trial may be
greatly diminished by the passage of time." (footnote omitted));
Telink, Inc. v. United States, 24 F.3d 42, 48 (9th Cir. 1994)
("In making a determination of prejudice, the effect of the
delay on both the government's ability to respond to the
petition and the government's ability to mount a retrial are
relevant." (citing Darnell, 716 F.2d at 480)); In re Douglas,
200 Cal. App. 4th 236, 246 (Cal. Ct. App. 2011) ("[T]he People
have been prejudiced both with regard to retrying Defendant and
to responding to issues raised in Defendant's petition.");
Armstrong v. State, 747 N.E.2d 1119, 1120 (Ind. 2001) ("For
post-conviction laches purposes, prejudice exists when the
unreasonable delay operates to materially diminish a reasonable
likelihood of successful re-prosecution." (citation omitted));
19
No. 2017AP880-W
to prejudice, such as will bar the right to assert a claim after
the passage of time pursuant to laches, depends upon the facts
and circumstances of each case, but it is generally held to be
anything that places the party in a less favorable position."
27A Am. Jur. 2d Equity § 143.
¶33 Courts commonly describe two types of prejudice:
evidentiary and economic.26 The State here claims evidentiary
Woodberry v. State, 101 P.3d 727, 731 (Kan. Ct. App. 2004) ("The
length of th[e] delay is unreasonable, and the State would
undoubtedly be prejudiced if forced to retry [the
petitioner]."); Jones v. State, 126 A.3d 1162, 1182 (Md. 2015)
("[W]e conclude that, for purposes of determining whether laches
bars an individual's ability to seek coram nobis relief,
prejudice involves not only the State's ability to defend
against the coram nobis petition, but also the State's ability
to reprosecute."); Johnson v. State, 714 N.W.2d 832, 838 (N.D.
2006) ("[P]rejudice exists when the unreasonable delay operates
to materially diminish a reasonable likelihood of successful re-
prosecution." (quoting Kirby v. State, 822 N.E.2d 1097, 1100
(Ind. Ct. App. 2005))); Ex Parte Perez, 398 S.W.3d 206, 215
(Tex. Crim. App. 2013) ("[We] expand the definition of prejudice
under the existing laches doctrine to permit consideration of
anything that places the State in a less favorable position,
including prejudice to the State's ability to retry a
defendant . . . .").
26 See ABB Robotics, Inc. v. GMFanuc Robotics Corp., 828
F. Supp. 1386, 1393 (E.D. Wis. 1993) ("Material Prejudice 'may
be either economic or evidentiary.'" (quoted source omitted)).
American Jurisprudence, using slightly different terms,
describes it this way:
Generally, there are two main types of prejudice
arising from delay by plaintiffs in bringing their
claims that support the laches defense: (1) "defense
prejudice," whereby the defendant is impaired from
successfully defending itself from suit given the
passage of time; and (2) "economic prejudice," whereby
the costs to the defendant have significantly
increased due to the delay.
20
No. 2017AP880-W
prejudice. "Evidentiary prejudice . . . may arise where a
plaintiff's delay in bringing an action has curtailed the
defendant's ability to present a full and fair defense on the
merits due to the loss of evidence, the death of a witness, or
the unreliability of memories." 30A C.J.S. Equity § 158.
¶34 The loss of key records and the unavailability of
essential witnesses are "classic elements" of prejudice in a
laches defense. Id. The death of key witnesses is precisely
the kind of thing laches is aimed at, particularly where the
"the decedent's knowledge is crucial to a party's
defense . . . ." 27A Am. Jur. 2d Equity § 152. American
Jurisprudence explains:
The doctrine of laches is peculiarly applicable where
the difficulty of doing justice arises through the
death of the principal participants in transactions
complained of, or of witnesses to transactions . . . .
For example, documents may have been misplaced or
destroyed, or it may be difficult or impossible for
the party to defend a claim if essential witnesses are
deceased . . . .
Id. § 149.27
27A Am. Jur. 2d Equity § 144.
The Wisconsin Practice Series offers draft forms for
27
practitioners. One of its sample laches forms addresses
precisely this type of scenario as an archetypal issue. The
form reads:
The plaintiff had knowledge of all of the facts set
forth in the complaint at least _______ years before
commencement of this action. During that interval,
all persons who would be material witnesses have died,
the defendant's position has substantially changed as
a result, and the defendant is materially prejudiced.
The plaintiff should be barred by laches from
obtaining relief in this action.
21
No. 2017AP880-W
¶35 Wren asserts that the State has not proven prejudice.
He rests his argument largely on the fact that the State's claim
of prejudice relies on the unavailability of Attorney Kostich.
And in that vein, Wren points specifically to the circuit
court's factual findings that he believed Kostich would file an
appeal on his behalf and subsequently failed to respond to Wren
or his family, despite their attempts to contact him. If these
findings are accepted, Wren maintains, that establishes
ineffective assistance of counsel, and no contradictory
hypothetical evidence could matter.
¶36 Wren's argument on this point is superficially strong,
but it rests on a faulty foundation. To be sure, the State does
not contest the circuit court's factual findings. But fairly
understood, the State advanced something even more fundamental:
it had no tools and no evidence to defend the habeas claim at
all because its necessary evidence——the files and testimony of
Kostich——were unavailable due to Wren's unreasonable delay in
raising the issue. The State made this point most poignantly at
oral argument when it said it did not challenge the factual
findings because——due to Wren's delay——it had nothing with which
to challenge them. Even the evidentiary hearing at which the
circuit court made its factual findings was a one-sided story.
This is the very definition of prejudice.
5 Wisconsin Practice Series: Civil Procedure Forms § 40:433 (3d
ed. 2019).
22
No. 2017AP880-W
¶37 It is no excuse to say that we do not know what
testimony Kostich would have offered, or what evidence his case
files may have contained. Zizzo v. Lakeside Steel &
Manufacturing Co. is instructive on this point. 2008 WI App 69,
312 Wis. 2d 463, 752 N.W.2d 889. There, a son who inherited
property sought to discharge the mortgage obligations on the
property in part on the grounds of laches. Id., ¶1. His
deceased parents received a loan in 1989 and were supposed to
pay off the property in 1993, but no payments were ever made,
nor were efforts made to collect or foreclose on the mortgage.
Id. The mortgage holder responded that no prejudice was shown,
essentially arguing the claim was "speculative because he does
not know exactly what information his [deceased] parents
possessed . . . ." Id., ¶20. The court's response there is
true here as well: "Of course he does not know that
information——and that is exactly how he is prejudiced." Id.
¶38 It is important to stress that prejudice to a party
for purposes of laches does not mean a party is so disadvantaged
that it cannot prosecute its case. The prerequisite under our
law is prejudice due to the delay, i.e., disadvantage to a
party. Thus, the legal element is met by showing the State's
defense of the habeas petition was meaningfully disadvantaged.
The death of the essential witness to the events at issue, along
with the loss of his documentary files, unquestionably satisfies
this standard.
23
No. 2017AP880-W
3. The Court of Appeals Appropriately Exercised
Its Discretion in Applying Laches
¶39 Though we agree that the State proved all three
elements of laches as a matter of law, the court of appeals
still had the duty and authority to decide whether to apply
laches in this case. As noted above, we review this decision
for an erroneous exercise of discretion. Coleman, 290
Wis. 2d 352, ¶17. Therefore, as long as the court applied a
proper standard of law and employed a demonstrated, rational
process to reach a conclusion that a reasonable court could
reach, the decision should be affirmed. State v. Cooper, 2019
WI 73, ¶13, 387 Wis. 2d 439, 929 N.W.2d 192. When we review a
discretionary decision, we look for reasons to affirm the lower
court's decision, even if its reasoning could have been
explained more fully. See State v. Hurley, 2015 WI 35, ¶29, 361
Wis. 2d 529, 861 N.W.2d 174.
¶40 The court of appeals properly acknowledged it needed
to exercise its discretion whether to apply laches to Wren's
case. In deciding to do so, the court reasoned that application
was appropriate because "Wren waited over ten years to raise
concerns about the lack of appointment of postconviction counsel
and a direct appeal, despite the fact that he sought relief
numerous times from the trial court." State ex rel. Wren v.
Richardson, No. 2017AP880-W, unpublished slip op. at 9 (Wis. Ct.
App. Nov. 12, 2018). The court relied significantly on the
reasoning of Washington, 343 Wis. 2d 434, where the petitioner
waited five years to seek reinstatement of his appellate rights.
24
No. 2017AP880-W
¶41 Wren's objections to the court's decision to apply
laches are predominantly echoes of his previous arguments: he
shouldn't be faulted for the State's failure to ensure he had
constitutionally adequate counsel; he didn't know he could do
this; and he wasn't familiar with the court system.
¶42 All of these assertions, however, are aimed at a
rebalancing of the equities in this court. That is not how we
review discretionary decisions. The court of appeals' decision
is sufficient to satisfy our standard of review. It was
reasonable for the court to conclude that even if the State
failed to provide him with constitutionally adequate counsel,
any subsequent delays by Wren should not be attributed to the
State.28 It was reasonable to conclude that the State's
Furthermore, while failure to file an appeal is deficient
28
performance for which prejudice is presumed, claims of
ineffective assistance of counsel generally fail absent some
form of corroboration of the attorney's actions.
A defendant on a post-conviction motion may bring a
claim of ineffective counsel. If the counsel in
question cannot appear to explain or rebut the
defendant's contentions because of death . . . then
the defendant should not, by uncorroborated
allegations, be allowed to make a case for
ineffectiveness. The defendant must support his
allegations with corroborating evidence. Such
evidence could be letters from the attorney to the
client, transcripts of statements made by the attorney
or any other tangible evidence which would show the
attorney's ineffective representation. . . . In other
words, we will presume that counsel had a reasonable
basis for his actions, and the defendant cannot by his
own words rebut this presumption. Such a burden will
assure that post-conviction proceedings will not be
brought solely on the basis of ineffective counsel
25
No. 2017AP880-W
inability to mount a defense due to Wren's delay should outweigh
Wren's interest in further challenging his conviction.29 The
question before us is not whether we would have made the same
decision, but whether the court of appeals applied a proper
standard of law and employed a demonstrated, rational process to
reach a conclusion that a reasonable court could reach.30 The
answer is yes it did.
III. CONCLUSION
¶43 We decline Wren's invitation to reconsider our
decisions holding that laches is an available defense to a
habeas petition. The State raised the defense in response to
Wren's petition and proved all three elements of laches, in
particular, unreasonable delay and prejudice. We also affirm
the court of appeals' exercise of discretion in applying laches
when counsel dies or for some other reason becomes
unavailable to explain his or her prior actions.
State v. Lukasik, 115 Wis. 2d 134, 140, 340 N.W.2d 62 (Ct. App.
1983).
29 The dissent would balance the equities differently,
giving more weight to the prejudice to Wren. Dissent, ¶75.
That is the very definition of rebalancing the scales in
violation of our standard of review.
30 See Burkes v. Hales, 165 Wis. 2d 585, 590, 478 N.W.2d 37(Ct. App. 1991) ("And where the record shows that the court
looked to and considered the facts of the case and reasoned its
way to a conclusion that is (a) one a reasonable judge could
reach and (b) consistent with applicable law, we will affirm the
decision even if it is not one with which we ourselves would
agree." (footnote omitted)).
26
No. 2017AP880-W
to Wren's petition. Therefore, we affirm the court of appeals'
denial of Wren's petition for a writ of habeas corpus.
By the Court.—The decision of the court of appeals is
affirmed.
27
No. 2017AP880-W.awb
¶44 ANN WALSH BRADLEY, J. (dissenting). "It is
incongruous to state that a defendant was denied the right to
counsel and then preclude the defendant from raising a claim
because of errors made due to the absence of counsel." State ex
rel. Kyles v. Pollard, 2014 WI 38, ¶56, 354 Wis. 2d 626, 847
N.W.2d 805. Yet the majority opinion does just that.
¶45 In doing so, the majority endorses a significant
failure in our system of justice. Abandoned by counsel and
hampered by a second grade reading level, Wren was left to fend
for himself. Not surprisingly, he spent several years adrift in
a sea of pro se motions. Once he learned that the correct
mechanism to seek reinstatement of the appeal rights he had lost
due to his counsel's abandonment was to file a habeas petition,
he did so promptly.
¶46 I agree with the majority that laches is a defense
available to the State in response to a petition for habeas
corpus. See majority op., ¶3. Our case law is well established
on this point. See, e.g., State ex rel. Lopez-Quintero v.
Dittman, 2019 WI 58, ¶10, 387 Wis. 2d 50, 928 N.W.2d 480.
¶47 However, I part ways with the majority's application
of the doctrine of laches to the facts of this case. In my
view, the majority errs in its determination that Wren's delay
was unreasonable. The majority further errs in refusing to
disturb the court of appeals' conclusion that the application of
laches in this case was equitable.
1
No. 2017AP880-W.awb
¶48 Because I determine that Wren's delay was not
unreasonable, and the application of laches to bar his claim is
hardly equitable, I respectfully dissent.
I
¶49 At the age of 15, Wren was charged with first-degree
reckless homicide. The next year, in 2007, he pleaded guilty as
charged in exchange for the State's agreement not to seek a
specific sentence. As the majority acknowledges, the sentence
he received was "considerably more than Wren's counsel suggested
and longer than was recommended in the presentence investigation
report (PSI)." Majority op., ¶4.
¶50 Wren told his attorney, Nikola Kostich, that he
disagreed with the sentence.1 Attorney Kostich responded that
Wren should not worry because they would appeal. Immediately
after the sentencing hearing, members of Wren's family also
spoke with Attorney Kostich, and Attorney Kostich also assured
them that he would file an appeal on Wren's behalf.
¶51 Such an appeal never came. Wren and members of his
family attempted to contact Attorney Kostich over a period of
1 The facts as set forth in this dissent are largely taken
from the circuit court's findings of fact. The State has not
challenged these facts as clearly erroneous. Majority op., ¶11.
2
No. 2017AP880-W.awb
several years, but they received no response.2 Accordingly, the
circuit court found as a fact that "Attorney Kostich
intentionally led Wren and third parties acting on his behalf to
believe that he would timely complete the requirements necessary
for the defendant to seek postconviction relief, and then he
failed to do so without notifying Wren or third parties acting
on his behalf." Attorney Kostich passed away in 2014.
¶52 The circuit court additionally found as a fact that
"[s]ometime in 2010 or 2011, Wren concluded that Attorney
Kostich had not filed an appeal on his behalf. After reaching
this conclusion, Wren still wanted to seek postconviction relief
regarding ineffective assistance of trial counsel and the
sentence, but he did not know how to do so." Consistent with
such an intent, Wren filed various motions in the circuit court
from 2010 to 2016. Id., ¶6. However, Wren did not know that he
could file a habeas petition that could reinstate his appeal
rights.
2 Attorney Kostich was brought before this court for
professional discipline on four prior occasions, including
during the relevant period here. See In re Disciplinary
Proceedings Against Kostich (Kostich IV), 2012 WI 118, 344
Wis. 2d 534, 824 N.W.2d 799; In re Disciplinary Proceedings
Against Kostich (Kostich III), 2010 WI 136, 330 Wis. 2d 378, 793
N.W.2d 494; In re Disciplinary Proceedings Against Kostich
(Kostich II), 2005 WI 90, 282 Wis. 2d 206, 700 N.W.2d 763;
Matter of Disciplinary Proceedings Against Kostich (Kostich I),
132 Wis. 2d 227, 391 N.W.2d 208 (1986). In two of these
instances, Attorney Kostich was disciplined for failing to
communicate with a client or a client's family member or failing
to act with reasonable diligence as are the allegations in this
case. Kostich IV, 344 Wis. 2d 534; Kostich II, 282 Wis. 2d 206.
3
No. 2017AP880-W.awb
¶53 Wren testified that he eventually learned of the
mechanism of a habeas petition from his uncle, who was
incarcerated in another institution. He further testified that
within "three to four months" of learning this information, he
filed the petition for writ of habeas corpus that is the subject
of this case, seeking to reinstate his right to pursue the
postconviction relief he thought he would be seeking through
Attorney Kostich. Specifically, Wren argued that he was denied
the right to a direct appeal and the right to the assistance of
counsel on that appeal, because he was abandoned by his
attorney.
II
A
¶54 The majority's first error lies in its determination
that Wren's delay in seeking to reinstate his appeal rights was
unreasonable.
¶55 In the majority's view, "the delay clock started
running no later than 2010 or 2011 when Wren, by his own
admission, learned no appeal had been filed . . . ." Id., ¶21.
After he learned no appeal had been filed, the majority reasons,
"Wren researched and leveraged his available resources to craft
four separate pro se motions relating to his conviction——none
even hinting at the claims raised before us." Id.
¶56 While the majority places the delay at Wren's feet, it
glosses over the underlying reason that an appeal was never
filed——that Wren was abandoned by his counsel and thus
completely denied the right to counsel on direct appeal in
4
No. 2017AP880-W.awb
violation of the Sixth Amendment. See State ex rel. Seibert v.
Macht, 2001 WI 67, ¶10, 244 Wis. 2d 378, 627 N.W.2d 881(recognizing a constitutional right to counsel on appeal); Page
v. Frank, 343 F.3d 901, 909 (7th Cir. 2003) ("It is well
established that a criminal defendant possesses the right to
effective assistance of counsel through his first appeal of
right."); Evitts v. Lucey, 469 U.S. 387, 396 (1985).
¶57 Indeed, such abandonment by counsel has been described
by the Seventh Circuit as a "per se violation of the sixth
amendment." Castellanos v. United States, 26 F.3d 717, 718 (7th
Cir. 1994). "If the defendant told his lawyer to appeal, and
the lawyer dropped the ball, then the defendant has been
deprived, not of effective assistance of counsel, but of any
assistance of counsel on appeal." Id.¶58 United States Supreme Court precedent dictates that,
as a constitutional matter, the responsibility for the denial of
counsel on direct appeal is imputed to the State. And it is the
State which must bear the cost——dare I say the burden——of the
resulting default. In Coleman v. Thompson, 501 U.S. 722, 754
(1991), the Court wrote:
Where a petitioner defaults a claim as a result of the
denial of the right to effective assistance of
counsel, the State, which is responsible for the
denial as a constitutional matter, must bear the cost
of any resulting default and the harm to state
interests that federal habeas review entails.
In other words, "if the procedural default is the result of
ineffective assistance of counsel, the Sixth Amendment itself
requires that responsibility for the default be imputed to the
5
No. 2017AP880-W.awb
State." Id. (quoting Murray v. Carrier, 477 U.S. 478, 488
(1986)).
¶59 These principles certainly apply here. It is the
State's responsibility to provide Wren with counsel, and it
utterly failed in that endeavor. To say that Wren
"unreasonably" delayed when the delay must be imputed to the
State turns Supreme Court precedent on its head.
¶60 Nevertheless, the majority seems unfazed by the Sixth
Amendment mandate that the responsibility for the delay be
imputed to the State. According to the majority it is the pro
se defendant, with a second grade reading ability who was
abandoned by counsel, that we hold responsible instead.
¶61 The majority admonishes that: "Nothing prevented Wren
from contacting another attorney. Nothing prevented Wren from
researching available options to ensure he took advantage of
every possible legal argument he could make." Majority op.,
¶23. Really? First of all, such statements have no record
support. But more importantly, is this really the high bar that
we are requiring of pro se litigants like Wren——"to take
advantage of every possible legal argument he could make?"
¶62 It is the rare member of the public who even knows of
the existence of a writ of habeas corpus, let alone what it
means and how and when to file such a writ. Recall that even
experienced lawyers and courts were unsure how to proceed. This
court did not clarify the proper forum for filing a habeas
petition until 2014,3 but the majority curiously expects a non-
See State ex rel. Kyles v. Pollard, 2014 WI 38, ¶3, 354
3
Wis. 2d 626, 847 N.W.2d 805.
6
No. 2017AP880-W.awb
lawyer abandoned by counsel to have figured it all out before
then.
¶63 Further, the majority wrongly holds Wren's filings
prior to this habeas proceeding against him. It relies on the
assertion that "Wren researched and leveraged his available
resources to craft four separate pro se motions relating to his
conviction——none even hinting at the claims raised before us" to
support the proposition that Wren sat on his rights. Id., ¶21.
¶64 But Wren is not trained in the law, and he was a mere
15 years old at the time of his crime. The record indicates
that he read at a second grade level. He was completely
abandoned by counsel and left to fend for himself through no
fault of his own.
¶65 The majority asserts that it is simply holding Wren to
"the same standard we apply to all pro se litigants." Id., ¶25.
Citing to secondary sources, the majority declares that Wren's
ignorance of his legal rights does not absolve him of any
obligation. Id., ¶20. It cites general maxims regarding pro se
litigants, but its platitudes fail to address a defendant who
has been denied his constitutional right to direct appeal due to
the complete desertion of his counsel. See id., ¶25.
¶66 Indeed, the majority conflates a willing pro se
litigant with a criminal defendant blamelessly abandoned by
counsel.4 If the justice system worked as it should have, Wren
The majority further conflates the denial of the right to
4
counsel on direct appeal with a postconviction motion where the
defendant already had the benefit of a direct appeal with the
assistance of counsel. See majority op., ¶27.
7
No. 2017AP880-W.awb
would not have been pro se in the first place. He was not pro
se by choice, but was forced into an untenable position by his
counsel's complete abandonment.5
¶67 In the majority's view, "once Wren no longer had a
lawyer representing him, he was not free to do nothing to
address the claims he raised in his habeas petition." Id., ¶25.
However, Wren did not "do nothing." He did what he could with
the resources and knowledge he had.6 The fact that Wren filed
other pro se motions on unrelated issues with the assistance of
other inmates indicates that Wren remained engaged in his case,
not that he had abandoned his quest to reinstate his appeal
rights.
¶68 Once Wren learned about petitions for a writ of habeas
corpus, he filed one straight away. Indeed, he testified that
he filed his habeas petition "three to four months" after
learning that such a petition was an option available to him.
Contrary to the suggestion of the majority, these facts do not
paint a picture of a litigant "lay[ing] in the weeds and
5The United States Supreme Court has "long held that a
lawyer who disregards specific instructions from the defendant
to file a notice of appeal acts in a manner that is
professionally unreasonable." Roe v. Flores-Ortega, 528 U.S.
470, 477 (2000) (citations omitted). "This is so because a
defendant who instructs counsel to initiate an appeal reasonably
relies upon counsel to file the necessary notice." Id.6See Kyles, 354 Wis. 2d 626, ¶57 (rejecting the State's
argument that Kyles' prior unsuccessful pro se attempts to seek
relief that "were thwarted due to his lack of legal knowledge
and the lower courts' confusion over where and how he should
file his claims" barred a subsequent petition for habeas
corpus).
8
No. 2017AP880-W.awb
wait[ing] to raise an issue of potential merit." See State ex
rel. Washington v. State, 2012 WI App 74, ¶23, 343 Wis. 2d 434,
819 N.W.2d 305; Betts v. Litscher, 241 F.3d 594, 596 (7th Cir.
2001) ("The Constitution does not permit a state to ensnare an
unrepresented defendant in his own errors and thus foreclose
access to counsel.").
¶69 I therefore conclude that Wren's delay was not
unreasonable. Wren acted promptly upon learning the correct
mechanism for seeking to reinstate his appeal rights and, in any
event, as a constitutional matter, such a delay is properly
imputed to the State in the first instance.7
B
¶70 The majority also errs in upholding the court of
appeals' determination that the equities favor the State.
Cautioning against "rebalancing . . . the equities in this
court[,]" the majority concludes that the court of appeals
"applied a proper standard of law and employed a demonstrated,
rational process to reach a conclusion that a reasonable court
could reach." Majority op., ¶42.
¶71 As a starting point, I do not dispute that the State
is prejudiced by the delay that resulted from Attorney Kostich's
7 The majority posits that this dissent stands for a rule
that "Wren could wait ten, twenty, or even thirty years to raise
his claim, regardless of any impact on the State's ability to
address the merits of an alleged ineffective assistance claim."
Majority op., ¶31. Nonsense. Contrary to this suggestion, this
dissent addresses only the facts before us, and does not
speculate as to what the result would have been if Wren had
waited a longer period of time before filing his habeas
petition.
9
No. 2017AP880-W.awb
abandonment of his client. If an attorney's lack of
recollection of events coupled with the destruction of the
attorney's files is enough to establish prejudice to the State,
then the unavailability of an attorney for testimony due to the
attorney's death must also be sufficient. See Washington, 343
Wis. 2d 434, ¶25.
¶72 However, the analysis cannot end there. Even if all
elements of laches are proven, a court still must determine, in
its discretion, whether to apply laches and deny the petition.
Id., ¶20. Laches is, after all, an equitable defense. Sawyer
v. Midelfort, 227 Wis. 2d 124, 159, 595 N.W.2d 423 (1999).
¶73 In my view, the court of appeals erroneously exercised
its discretion by giving short shrift to the competing prejudice
suffered by Wren. Although it is true that the State suffers
prejudice by not being able to question Kostich, the State is
not the only party prejudiced by Kostich's absence. See Garza
v. Idaho, 139 S. Ct. 738, 744 (2019) (explaining that prejudice
is presumed when a defendant is "left entirely without the
assistance of counsel on appeal" or "when counsel's
constitutionally deficient performance deprives a defendant of
an appeal that he otherwise would have taken") (citations and
internal quotations omitted). Certainly Wren would have liked
to have Kostich on the stand just as much, if not more, than the
State.
¶74 Given the record indicating a complete lack of
response from Attorney Kostich to Wren or his family members,
Wren would have likely benefited from having Attorney Kostich on
10
No. 2017AP880-W.awb
the stand to confirm that the attorney did nothing to pursue
Wren's appeal. Indeed, the circuit court found as a fact that
"Attorney Kostich intentionally led Wren and third parties
acting on his behalf to believe that he would timely complete
the requirements necessary for the defendant to seek
postconviction relief, and then he failed to do so without
notifying Wren or third parties acting on his behalf." If
Kostich's testimony would confirm the finding that Wren asked
Attorney Kostich to file an appeal and he simply didn't do it,
then Wren is prejudiced to a far greater extent than is the
State.
¶75 Giving proper weight to the prejudice to Wren, the
equities clearly favor Wren and militate against the application
of laches.8 Further, it was the State that denied Wren counsel
on appeal, and it would be inequitable to now hold Wren
accountable for the State's failing. I therefore conclude that
the court of appeals erroneously exercised its discretion
because it did not give the competing prejudice suffered by Wren
the weight it is due.
¶76 For the foregoing reasons, I respectfully dissent.
¶77 I am authorized to state that Justices REBECCA GRASSL
BRADLEY and REBECCA FRANK DALLET join this dissent.
In the majority's estimation, this conclusion represents
8
an impermissible "rebalancing" of the equities. Majority op.,
¶42 n.29. Rather than "rebalancing" the scale, this dissent
seeks to make sure that all considerations are properly on the
scale in the first place.
11
No. 2017AP880-W.awb
2