District IV
February 18, 2014
To:
Hon. John R. Storck
Circuit Court Judge
Justice Facility
210 West Center St.
Juneau, WI 53039
Lynn M. Hron
Clerk of Circuit Court
Dodge Co. Justice Facility
210 West Center Street
Juneau, WI 53039
Kurt F. Klomberg
District Attorney
Dodge County
210 W. Center Street
Juneau, WI 53039
Brandon Kuhl
Kuhl Law LLC
P.O. Box 266
Stevens Point, WI 54481-0266
Gregory M. Weber
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Keeyon Nathaniel Barker 296131
Waupun Corr. Inst.
P.O. Box 351
Waupun, WI 53963-0351
Joseph N. Ehmann
First Asst. Public Defender
P.O. Box 7862
Madison, WI 53707-7862
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Keeyon Nathaniel Barker (L.C. # 2011CF328) |
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Before Lundsten, Higginbotham and Kloppenburg, JJ.
Appointed counsel for Keeyon Barker has filed a no-merit report under Wis. Stat. Rule 809.32 (2011-12).[1] We dismiss the appeal as improperly filed.
The no-merit report asserts that Barker’s plea colloquy was defective and that he is entitled to a fact-finding hearing on that issue, if he chooses. The report further notes that, if Barker were to be successful at withdrawing his plea, that would also have the effect of reinstating other charges that were dismissed. The report states: “The decision as to whether to pursue this remedy is solely that of Mr. Barker.” The conclusion of the report states: “Mr. Barker may pursue post-conviction relief due to defects in the plea colloquy, but doing so would be accompanied by a substantial risk of increased penalties.”
We are unable to see at this point why counsel filed a no-merit appeal. A no-merit appeal, by definition, is to be filed in cases where counsel concludes there are no issues with arguable merit. Wis. Stat. Rule 809.32(1)(a). Here, it appears that counsel has concluded there is one issue with arguable merit.
What is not clear is whether Barker has made a decision about whether to pursue that issue. If that decision has not occurred, Barker must make that choice. However, whichever path Barker chooses, a no-merit report is not appropriate. If Barker chooses to seek plea withdrawal, counsel would then file a postconviction motion seeking that relief, not a no-merit appeal.
If Barker chooses not to seek plea withdrawal, a no-merit report would again be inappropriate, because counsel has not concluded that there are no issues with arguable merit. After counsel finds one non-frivolous issue but a defendant chooses not to pursue it, the defendant is not entitled to a no-merit review to find a second issue that might be more to the defendant’s liking. See State ex rel. Ford v. Holm, 2006 WI App 176, ¶¶9-12, 296 Wis. 2d 119, 722 N.W.2d 609.
Therefore,
IT IS ORDERED that this appeal is dismissed without prejudice.
IT IS FURTHER ORDERED that the time to file a postconviction motion is extended to thirty days from the date of this order.
Diane M. Fremgen
Clerk of Court of Appeals