State v. Keith E. Williams

Opinion Filed:	May 18, 2005
Submitted on Cross-Appellant�s Motion:�	May 6, 2005
�

JUDGES:	Anderson, P.J., Nettesheim and Snyder, JJ.
�� Concurred:
�� Dissented:

Appellant
ATTORNEYS:	On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the cross-appellant�s motion for an extension of time to file notice of cross-appeal of Christopher William Rose of Rose & Rose, Kenosha.�

Respondent
ATTORNEYS:	On behalf of the plaintiff-appellant-cross-respondent, the cause was submitted on the memorandum in response of James M. Freimuth, assistant attorney general, and Peggy A. Lautenschlager, attorney general.�

COURT OF APPEALS

DECISION

DATED AND FILED

May 18, 2005

Cornelia G. Clark

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

Appeal No.�	2005AP453-CR	Cir. Ct. No.� 2002CF755
STATE OF WISCONSIN��			IN COURT OF APPEALS



State of Wisconsin, �� Plaintiff-Appellant-Cross-Respondent, �� v. Keith E. Williams, �� Defendant-Respondent-Cross-Appellant.

�� MOTION for an extension of time to file notice of cross-appeal.� Granted.�

Before Anderson, P.J., Nettesheim and Snyder, JJ.

�1�� PER CURIAM. The State appeals from an order granting Keith E. Williams a new trial.� Williams moves to extend the time for filing a notice of cross-appeal.� We conclude that because Williams initiated postconviction proceedings under Wis. Stat. Rule 809.30 (2003-04),[1] the time for filing a notice of cross-appeal may be extended.� We grant the motion to extend the time and confirm jurisdiction over the cross-appeal.

�2�� Williams was convicted of second-degree sexual assault and false imprisonment.� He filed a motion for postconviction relief under Wis. Stat. Rule 809.30(2)(h).� The circuit court granted a new trial in the interests of justice and on January 28, 2005, entered an order vacating the judgment of conviction.� On February 16, 2005, the State filed a notice of appeal.� Williams�s motion for an extension of time to file a notice of cross-appeal suggests that the time for filing a notice of cross-appeal expired on or about March 16, 2005.� See Wis. Stat. Rule 809.10(2)(b) (�A respondent who seeks a modification of the judgment or order appealed from or of another judgment or order entered in the same action or proceeding shall file a notice of cross-appeal within the period established by law for the filing of a notice of appeal, or 30 days after the filing of a notice of appeal, whichever is later.�).� Williams explains that it recently became apparent that a cross-appeal is necessary to obtain review of other issues in the event the circuit court�s decision granting a new trial is reversed.[2]� He asserts that the extension can be granted because this is a felony appeal under Rule 809.30.

�3�� Wisconsin Stat. Rule 809.82(2)(b) provides that the time for filing a notice of appeal or cross-appeal of a final judgment or order may not be enlarged except in an appeal under Wis. Stat. Rule 809.30.� The State�s right to appeal in a criminal matter is statutorily defined.� See State v. Newman, 162 Wis. 2d 41, 46, 469 N.W.2d 394 (1991).� Here, the State appeals pursuant to Wis. Stat. � 974.05(1)(b).� At first blush this is not an appeal brought under Rule 809.30.�

�4�� However, as the State points out, the jurisdiction of the circuit court was initially invoked by the motion for postconviction relief under Wis. Stat. Rule 809.30(2)(h).� Williams�s right to appeal or to cross-appeal stems from his pursuit of postconviction relief under Rule 809.30.� The time for a person[3] to take various steps in pursuing postconviction relief under Rule 809.30, including the time for filing a notice of appeal, can be extended.� See State v. Harris, 149 Wis. 2d 943, 946, 440 N.W.2d 364 (1989).� The filing of a notice of cross-appeal is a continuation of the pursuit of postconviction relief under Rule 809.30.� Thus, the time for a person to file a notice of cross-appeal from the Rule 809.30(2)(i) postconviction order can be extended.�

�5�� Applying the same procedures to the defendant�s right to appeal and to cross-appeal comports with due process.� See Harris, 149 Wis. 2d at 947 n.5.� It also preserves the defendant�s constitutional right to raise possible error on appeal.� See State v. Perry, 136 Wis. 2d 92, 99, 401 N.W.2d 748 (1987) (�Any failure of the appellate process which prevents a putative appellant from demonstrating possible error constitutes a constitutional deprivation of the right to appeal.�).

�6�� Williams has established good cause for an extension of time to file a notice of cross-appeal.� See Wis. Stat. Rule 809.82(2)(a).� The time for filing the notice of cross-appeal is extended to April 19, 2005, the day the notice was actually filed.

�� By the Court.�Motion granted.

��

[1]� All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

[2] We take no position on whether a cross-appeal is necessary to obtain review of other issues raised in the postconviction motion.� A respondent need not file a cross-appeal �when the error complained of, if corrected, would sustain the judgment, order, or portion thereof appealed from� on an alternative ground.� State v. Alles, 106 Wis. 2d 368, 391, 316 N.W.2d 378 (1982).� As the State observes in its response to the motion to extend the time to file a notice of cross-appeal, without filing a cross-appeal Williams may raise in his respondent�s brief any adverse ruling that, if erroneous, would provide an alternative justification for a new trial.

[3] Wisconsin Stat. Rule 809.30(1)(b) defines �person� to be a defendant seeking postconviction relief in a criminal matter and does not include the State.� The State�s time to appeal in a criminal matter may not be extended.�

Case No.:	2005AP453-CR
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