Criminal Appeals


The decision to appeal a criminal conviction, what procedure to utilize and the determination of the viability of successful issues on appeal is a very important decision.  Attorney Patrick Stangl has extensive experience in appellate practice and procedure.  He has represented numerous clients in all facets of the appellate process including direct appeals in both State and Federal Courts, the filing of post-conviction motions for a new trial, and motions alleging the ineffective assistance of both trial and appellate counsel.  He has argued many cases in the Seventh Circuit Court of Appeals and has argued in front of the Wisconsin Supreme Court. His appellate experience includes a body of published opinions in State and Federal courts.

Recently, he represented the defendant in the seminal case of  United States v. Garcia, 434 F.3d.  The Garcia case involved the warrantless attachment of a GPS tracking device on a motor vehicle which has garnered nationwide attention.  It has become one of the leading cases cited by defense attorneys, legal scholars, and commentators regarding GPS surveillance.

In the case of Knotts v. United States, 460 U.S. 276 the United States Supreme Court ruled that drivers on public streets do not have a reasonable expectation of privacy, a necessary predicate to Fourth Amendment protection and that police could place radio “beepers” on cars without a warrant.  However, the use of the electronic beeper device in the vehicle in Knotts was used to supplement law enforcement agents’ own observations as they followed Knotts through traffic but ultimately lost him.  Attorney Stangl argued that placing a GPS on a vehicle without establishing probable cause and obtaining a warrant violates reasonable expectations of privacy giving the sophisticated nature of the GPS tracking device. Renowned Jurist Richard Posner authored the opinion in Garcia and disagreed, finding that law enforcement had an ample reason to suspect Garcia of crimes but conceded that the technology one day could be used for massive police surveillance.  Given the pervasive scope of GPS technology and the nationwide importance of the privacy issues involved Attorney Stangl drafted and filed a Writ of Certiorari to the United States Supreme Court seeking review of the Seventh Circuit’s Decision but review was denied.

Attorney Stangl has been contacted by several law professors, reporters, and defense attorneys from across the nation to discuss the import of the Garcia decision.  Articles regarding the case have appeared in numerous newspapers across the nation including USA Today, the Chicago Sun Times, The Seattle Times and many other publications and blogs.  The issue of GPS surveillance will undoubtedly continue to attract great attention as issues of privacy and governmental over-reaching into the lives of private citizens seems to be becoming the rule rather than the exception.

The United States Supreme Court in United States v. Jones held that attaching a GPS device to a vehicle and then using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment. This was the precise argument that Attorney Stangl made in the Garcia case which the Supreme Court declined to accept five years earlier. Indeed Justice Scalia’s opinion adopted Attorney Stangl’s alternative argument that the placing of the GPS device on a vehicle constituted a legal trespass. The fact that the United States Supreme Court finally agreed with the arguments Attorney Stangl had previously made in his effort to get the Court to address the GPS issue was of great satisfaction and underscores his legal insight and ability in appellate advocacy.

Attorney Stangl has numerous other important decisions and successful results in the appellate courts including the reversal of convictions and appeals resulting in his clients’ being re-sentenced and receiving lesser punishment.  Recently, he established the ineffective assistance of two different appellate attorneys resulting in the Court of Appeals granting a Writ of Habeas Corpus which resulted in the reinstatement of his client’s appellate rights which had lapsed six (6) years earlier due to the attorneys’ ineffectiveness.

Appellate Decisions and Results

United States of America v. Quintero,
United States Court of Appeals for the Seventh Circuit, 572 F.3d 351
Published Opinion Regarding Court’s Authority to Amend Criminal Judgment

State of Wisconsin ex rel. W.C. J. v. Matthew Frank,
Secretary of Department of Corrections (L.C. 2001-CF-2565)
Appeal No. 2007-AP-1477-W
Writ of Habeas Corpus Granted
Ineffective Assistance of Appellate Counsel Established
United States of America v. Scott,
7th Circuit Court of Appeals No. 07-1698
District Court Reversed.
Sentence Vacated and Remanded to Trial Court for Resentencing
United States v. Stafford, 136 F.3d 1109 (7th Cir.)
Federal Convictions For Interstate Transportation of Stolen Property Reversed

Published Opinions – Federal Cases

United States v. Johnson, 729 F.3d 710 (7th Cir.)
United States v. Quintero, 572 F.3d 351 
United States v. Garcia, 434 F.3d 1994 (7th Cir.)
United States v. Crowley, 285 F.3d 553 (7th Cir.)
United States v. Stafford, 136 F.3d 1109 (7th Cir.)

Published Opinions – State Cases

State v. Hammill, WI App. 128, 29 Wis.2d 654 
State v. Moffett, WI 130
State v. Fearing, WI App. 229, 239 Wis.2d 105 
State v. Moffett, WI App. 67, 233 Wis.2d 268 
State v. Gant, 201 Wis.2d 206 (Ct. App.)
State v. Long, 190 Wis.2d 386 (Ct. App.)

Direct Appeal (State)

Every person convicted of a crime in Wisconsin has an absolute right to have the conviction reviewed by a higher court.  In Wisconsin, this is the Court of Appeals and potentially the Wisconsin Supreme Court.  The term “appeal” is a broad term which encompasses not only a direct appeal, as of right, to the Court of Appeals but also commonly includes other post-conviction remedies.  These remedies can include motions in the trial court following conviction including a motion for a new trial, a post-conviction motion alleging various errors in the trial itself as well as a post-conviction motion alleging the ineffective assistance of counsel.  The procedure governing a direct appeal of a criminal conviction or sentence is set forth in Rule 809.30 Wis. Stats.  A direct appeal is initiated by the filing of a document entitled a Notice of Intent to Pursue Post-Conviction Relief which must be filed in the trial court within twenty (20) days of the sentencing hearing.  An individual’s trial attorney is obligated to file a Notice of Intent to Pursue Post-Conviction Relief to initiate the appellate process if requested by the client.  After the filing of this document, Rule 809.30 sets forth procedural deadlines for the ordering of transcripts, the appointment of counsel (if appropriate), and the compilation and review of the trial court record.

If the sole basis for appeal includes all issues previously raised during the trial court proceedings and decided by the trial court then the defendant can directly appeal to the Court of Appeals, thus the term “direct appeal.”  If issues intended to be raised upon appeal are not set forth clearly in the record the issue must first be raised in the trial court by the filing of a post-conviction motion.  Any claim that trial counsel was ineffective must be raised with precise detail in a post-conviction motion or the issue is forever waived or lost

Direct Appeal  (Federal)

The appellate procedure for initiating an appeal from a federal conviction is much different than the procedure followed in Wisconsin Courts.  A direct appeal in a federal case is the primary method of challenging a conviction and sentence imposed in federal court. In federal court, absent unusual circumstances, a post-conviction motion is not filed in the trial court as part of a direct appeal.  Instead, the appeal is based upon any legal challenges or errors which already exist in the trial court record; that is the proceedings from the initiation of the prosecution through the sentencing hearing.  If a challenge is made to a conviction based on newly discovered evidence or an allegation of the ineffective assistance of trial counsel a motion to vacate the judgment pursuant to §28 U.S.C. 2255 is the appropriate vehicle to raise those issues.

In order to initiate a federal direct appeal the defendant must file a notice of appeal in the district court (trial court) within ten (10) days of the entry of the judgment of conviction excluding weekends and legal holidays.  Although this deadline can be extended based upon good cause or a showing of excusable neglect a request for an extension is not guaranteed.  A request for an extension from the ten (10) day deadline should be rarely, if ever, needed since trial counsel is obligated, upon the request of the defendant, to file the notice of appeal. Secondly, federal judges are very diligent with respect to advising a client of the ten (10) day requirement at the sentencing hearing.

The Federal Rules of Appellate Procedure provide the rules and framework for the filings of briefs, motions for extension of time, and other important matters.  A federal appeal is a complicated matter.  All legal issues must be raised and legal arguments developed in the appellant’s opening brief.  Any arguments improperly raised and/or not fully developed will be denied as a matter of course.  After the defendant-appellant files his opening brief the government files its responsive brief, normally within thirty (30) days. The defendant-appellant then has the opportunity to file a reply brief addressing the arguments raised in the government’s responsive brief.  Oral argument is usually granted in federal appeals and decisions, depending on the complexity and importance of the case, can be issued, in the form of a written opinion, anywhere from one to several months and up to a year or more later. Attorney Patrick Stangl has extensive experience in federal appellate practice.

Knight Petition (State Court Petition for Habeas Corpus)

In the event an appellate attorney is hired or appointed to represent a defendant in a direct appeal in the State of Wisconsin and that attorney renders the ineffective assistance of counsel on appeal or for example, abandons the client’s interests by failing to comply with the procedural requirements and time limits for initiating an appeal a claim of ineffective assistance of appellate counsel can be raised.  In State v. Knight, 168 Wis.2d 509 (1992) the Wisconsin Supreme Court ruled that the appropriate method for raising a claim of ineffective assistance of appellate counsel is the filing of a petition for writ of habeas corpus.  The remedy sought in a writ of habeas corpus (Knight Petition) is to reinstate the defendant’s right to appeal.  §809.51 Wis. Stats sets forth the requirements for a petition which must identify the issues, provide the case’s complete factual background and set forth with specificity the reasons why the Court of Appeals should grant the requested relief.

There is no time limit for filing a petition for Writ of Habeas Corpus in the Court of Appeals but the best practice is to pursue this remedy in as timely a fashion as possible.  Unnecessary delays attributed to the defendant through a legal theory known as “laches” can be a defense raised by the State to bar the habeas corpus relief sought.

Federal Habeas Corpus (28 U.S.C. §2254)

28 U.S.C. §2254 sets forth a procedure known as federal habeas corpus which allows a person convicted in state court and currently in custody to raise a challenge to that custody on the grounds that the sentence or underlying conviction was imposed in violation of the federal Constitution.  The reality is that most federal habeas petitions are filed by state prisoners pro se, that is, without the assistance of an attorney.  However habeas corpus relief is ordered with a mind field of very restrictive procedures and requirements which if not strictly followed will likely lead to the denial of the petition even in those cases where the conviction or sentences clearly violate the federal Constitution.  For example, the claims raised in a federal habeas corpus petition can only be based upon the federal Constitution and those issues must have been properly raised in the state courts including through the Supreme Court of Wisconsin. Also the issues must not have been waived or given up or somehow forfeited in the state court proceedings.  The petition must be filed in the correct federal court and the petitioner must be in “custody” under a state conviction at the time the petition is filed.  While all procedural requirements are important, none is more important than the actual time limit for filing a federal habeas petition.  The petition must be filed within one year after the direct appeal from the state conviction becomes final.  If the petition is filed from a direct appeal and the appeal proceeded through a decision by the Supreme Court, meaning either the Supreme Court actually accepted the case or denied review, the one year time period for filing starts to run ninety (90) days after the state supreme court’s decision.  There is an exception to the one year time limit in the event a collateral attack is raised against the conviction or a Knight petition is filed in state court prior to the one year deadline expiring. The one year deadline for filing the federal habeas petition is stopped or “tolled” for the period of time the collateral motion or Knight petition remains pending in the state court. Once that motion and if any, an appeal from that motion is finalized, the deadline starts to run from the point back to the filing state motion.

Given the procedural pitfalls and strict time limits involved in seeking federal habeas relief, it is critical to obtain the assistance of counsel with federal appellate experience, like Stangl Law Offices, S.C., as soon as possible after the direct appeal is finalized.

Collateral Attack (§974.06 Wis. Stats.)

§974.06 Wis. Stats. provides an avenue for attacking a conviction and/or sentence after the time for filing a direct appeal has lapsed.  This is known as a “collateral attack.”  A motion under §974.06 is limited to constitutional claims under the United States and Wisconsin Constitutions as well as jurisdictional grounds.  In order to bring a §974.06 motion the person must be “in custody under sentence of a court” which includes people on probation, parole and/or extended supervision.  There is no deadline for filing the motion.  This avenue of relief is available even if there was already a direct appeal in the case, however a person who has already raised constitutional claims on direct appeal generally will be prevented from raising them again in a §974.06 motion.  Both §974.06 and the case of Escalona-Naranjo prevent a person from raising claims in a subsequent appeal that could have been raised in his or her direct appeal unless the person provides a “sufficient reason” for failure to raise the claim initially.

Revocation Proceedings

If a defendant is sentenced to a term of probation, extended supervision or is paroled under the old law he or she is required by his probation/parole agent to follow certain rules imposed as conditions of supervision.  The probation/parole agent works for the Department of Corrections and has the authority to begin revocation proceedings of the supervision and return the person to jail or prison if the agent alleges that one or more rules of supervision have been broken.

The agent has the authority or discretion to hold the supervised individual in custody while investigating whether in fact rules of supervision were indeed violated.  As part of this investigation the agent will always try to obtain a statement from the person on supervision. Oftentimes, as a condition of their supervision an individual is required to give a statement when allegations and violations of conditions of supervision have been broken.  This statement can not be used later against the client if criminal proceedings are initiated as a result of the violations.  After the investigation is completed the agent will either start revocation proceedings or offer the person on supervision an “alternative to revocation” or simply return the person to continuing supervision.  If the agent starts revocation proceedings a revocation hearing is then set before an administrative law judge. If the individual is offered an “alternative to revocation,” the alternative usually includes some type of treatment or other program which must be satisfactorily completed in order to avoid revocation.  If the matter proceeds to a revocation hearing a person is entitled to be represented by counsel. Even if a person has admitted to the allegations, revocation can only be ordered if reasonable alternatives to revocation exist.  The administrative law judge must apply what has become known as the plotkin factors.  See State ex rel Plotkin v. H & SS, 63 Wis.2d, 535, 544. Revocation can only be ordered if (i) confinement is necessary to protect the public from further criminal activity by the offender; or (ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined or (iii) it would unduly depreciate the seriousness of the violation if probation were not revoked.”

Stangl Law Offices, S.C. has successfully defended revocation proceedings on behalf of its clients.  In representing clients who are the subject of revocation proceedings we have successfully defended revocation proceedings at hearings in front of administrative law judges, have worked out possible Alternatives to Revocation prior to the hearing, and represented individuals on appeal to the Administrator of the Division of Hearings and Appeals. Contact Stangl Law Offices, S.C. at any stage of the revocation process.

Sentence Modification

After a defendant has gone through the direct appeal process an additional method of attempting to challenge the sentence is to move the Court for sentence modification based on “new factors” which were not known to the Court at the time of the original sentencing.  A new factor is a factor of circumstance which is highly relevant to the sentence imposed which either did not exist at the time of sentencing or was overlooked by the parties.  Further modification involves a two step process.  State v. Franklin, 148 Wis.2d 1, 8.  First, the defendant must show the existence of a new factor thought to justify the motion to modify sentence.  Id.  If the defendant has demonstrated the existence of a new factor, the trial court must then decide whether the new factor warrants sentence modification.  Additionally, the information or development must “frustrate the purpose of the original sentencing.”  See State v. Johnson, 158 Wis.2, 58, 466 (Ct. App.).  The burden is upon the defendant to establish the existence of a new factor by clear and convincing evidence.  A motion to modify a sentence based on new factors is not governed by a time limitation and may be made at any time.  However, it is always best to bring a motion for sentence modification as soon as practicable.


Disclaimer:  Information obtained from this website is not, nor is it intended to be legal advice.  You should consult an attorney directly for advice that is specifically tailored to the factual and procedural posture of your specific legal situation.  Feel free to contact Stangl Law Offices, S.C. to further discuss your specific situation.  Contacting us does not, in and of itself, create an attorney-client relationship.