Appealing a criminal conviction involves making crucial decisions, such as determining the viability of success and which procedures should be utilized. 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, filing post-conviction motions for a new trial, and motions alleging the ineffective assistance of both trial and appellate counsel.

Attorney Stangl 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.

Direct Appeal Options

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 procedure governing a direct appeal of a criminal conviction or sentence starts by the filing a Notice of Intent to Pursue Post-Conviction Relief within 20 days of the sentencing hearing. An individual’s trial attorney is obligated to file this document to initiate the appellate process if requested by the client. After this filing, 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, the defendant can directly appeal to the Court of Appeals, thus the term “direct appeal.” If issues intended to be appealed are not stated 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.

Federal

A direct appeal in a federal case is the primary method of challenging a conviction and sentence imposed in federal court, and is much different than the procedure followed in Wisconsin Courts. In federal court, 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.

In order to initiate a federal direct appeal the defendant must file a notice of appeal in the district court within 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 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 10-day requirement at the sentencing hearing.

Additional Appeal Options

Knight Petition (State Court Petition for Habeas Corpus)

If an appellate attorney representing a defendant in a Wisconsin direct appeal cannot be effective counsel or abandons their client's interests by not complying with procedures or time limits, a claim of ineffective assistance of appellate counsel can be raised through writ of habeas corpus.

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

Federal habeas corpus 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. This 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 90 days after the state supreme court’s decision.

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

"Collateral Attack" is an avenue for attacking a conviction and/or sentence after the time for filing a direct appeal has lapsed. This is limited to constitutional claims under the United States and Wisconsin Constitutions as well as jurisdictional grounds. In order to bring a 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 through this motion.

Revocation Proceedings

If you are sentenced to probation, extended supervision, or paroled, you are required to follow certain rules imposed as conditions of supervision. Your probation/parole agent has the authority to begin revocation proceedings of the supervision and return you to jail or prison if they allege that one or more rules of supervision have been broken.

As part of their investigation, agents will always try to obtain a statement from you. Often, as a condition of your supervision, you are 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.

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.

Sentence Modification

After you have 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.

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.” 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.