State v. Pope

Citations: 923 N.W.2d 177; 2019 WI App 1; 385 Wis. 2d 211Docket: Appeal No. 2017AP1720-CR

Court: Court of Appeals of Wisconsin; November 12, 2018; Wisconsin; State Appellate Court

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The State is appealing a decision from the postconviction court that granted Robert James Pope, Jr. a new trial following his conviction for two counts of first-degree intentional homicide on May 31, 1996. Pope was sentenced to two life terms without the possibility of parole. Although both Pope and his trial counsel indicated an intention to seek postconviction relief, no timely notice was filed. Pope initiated various pro se motions starting in 1997, seeking to extend the timeline for filing a notice of intent and to restore his direct appeal rights. A joint motion in 2016 resulted in the reinstatement of his appeal rights and the dismissal of his habeas corpus petition.

In March 2017, Pope filed a motion for a new trial, arguing that the absence of trial transcripts—due to the court reporters no longer having their notes—warranted this relief. The postconviction court granted his motion, prompting the State's appeal. The State contends that the court erred by not requiring Pope to demonstrate valid claims of reversible error that the transcripts would have supported. The appellate court concluded that Pope failed to establish a valid claim of error, thus reversing the postconviction court's order and reinstating Pope's conviction.

The background reveals that Pope participated in a murder plot involving multiple co-defendants, leading to the shooting deaths of Joshua Viehland and Anthony Gustafson on September 27, 1995. Pope was arrested in January 1996, four months post-crime, and was ultimately convicted alongside Gross, while other co-defendants took plea deals. The State’s case relied on statements from co-defendants indicating that Pope fired the initial shot.

Pope and his trial counsel completed a WIS JI-CRIMINAL SM-33 form at sentencing, which informed Pope of his right to file a postconviction motion or appeal and specified a twenty-day window to file a notice of intent for postconviction relief. Pope indicated his intent to seek postconviction relief, with trial counsel assuring the court that the notice would be filed on his behalf. However, no notice was filed within the stipulated period.

On September 16, 1997, over fourteen months post-sentencing, Pope submitted a pro se motion to extend the time to file his notice. This motion was denied on September 25, 1997, as the court found Pope did not adequately explain the delay in pursuing postconviction relief independently after his counsel's failure to act.

Subsequently, on October 15, 1997, Pope filed a WIS. STAT. 974.06 postconviction motion claiming ineffective assistance of counsel for not filing the notice. The postconviction court denied this motion on October 20, 1997, prompting Pope to appeal on November 5, 1997. While the appeal was ongoing, Pope requested a waiver of transcript fees due to indigence, which the postconviction court denied on December 15, 1997, stating that Pope did not present a meritorious claim for relief.

On December 23, 1997, the court notified Pope of his failure to file a timely statement on transcript, granting him five days to comply. Pope submitted the necessary statement on January 2, 1998, indicating that only the sentencing transcript was required for his appeal. He later confirmed on January 20, 1998, that all necessary transcripts were already filed, leading to the transmission of the trial record, including preliminary and sentencing transcripts, to the appellate court.

Pope's appeal was considered by the court, which noted his willingness to dismiss the appeal in exchange for reinstatement of his direct appeal rights. On February 3, 1999, the court denied his request for an extension to file a direct appeal, citing a previous denial in September 1997 due to Pope's failure to demonstrate good cause. Pope attempted to explain a fifteen-month delay in seeking relief by claiming misinformation from a 'jailhouse lawyer' regarding appeal timelines. The court found this inadequate and noted an additional sixteen-month delay in presenting this explanation, concluding there was no good cause for the extension. Pope was given ten days to voluntarily dismiss his appeal but did not do so.

On March 5, 1999, the court affirmed the denial of Pope's postconviction motion, stating he had waived his right to appeal due to the unexplained fifteen-month delay in seeking relief. Pope's reliance on his attorney was deemed insufficient to justify the delay. Following this, Pope filed a pro se petition for review with the Wisconsin Supreme Court on March 8, 1999, which was dismissed as untimely on March 10, 1999, since it was a late challenge to the 1997 order. A subsequent petition for review of the March 5 decision was denied by the supreme court on June 7, 1999.

Years later, on June 20, 2003, Pope filed another motion seeking an extension of time to pursue postconviction relief, but the court denied this on July 11, 2003, stating it would not reconsider the previously settled issues. For eleven years, there were no further developments in the case. Finally, on July 21, 2014, eighteen years post-sentencing, Pope submitted a Knight petition for a writ of habeas corpus to reinstate his direct appeal rights, claiming ineffective assistance of counsel for not filing a notice of intent for postconviction relief. The State responded on May 21, 2015, and Pope's trial counsel later provided an affidavit stating he could not recall the case details or locate the file.

On November 13, 2015, the court remanded Pope's case to the postconviction court for a hearing on his claims. The postconviction court appointed counsel and held an evidentiary hearing on April 1, 2016. Findings of fact issued by Judge J.D. Watts on June 7 and June 28, 2016, revealed that Pope had sent two letters to his trial counsel regarding his appeal but found no evidence that the trial counsel had filed a notice of intent for postconviction relief. Following these findings, the Wisconsin State Public Defender's Office appointed appellate counsel for Pope, who, on August 16, 2016, stipulated with the State to reinstate Pope's direct appeal rights. Consequently, on September 29, 2016, the court reinstated these rights and dismissed Pope's habeas corpus petition.

On March 7, 2017, nearly 21 years post-conviction, Pope filed for direct postconviction relief under WIS. STAT. RULE 809.30, having discovered that trial transcripts had neither been ordered nor prepared due to the destruction of court reporters' notes. He sought a new trial based on the absence of these transcripts. The State opposed the motion, citing State v. Perry, requiring Pope to demonstrate a reviewable error supported by the missing transcripts, which they argued he failed to do. 

The postconviction court, led by Judge Jeffrey A. Conen, rejected the State's arguments and ordered a new trial on July 21, 2017. Following this, an appeal ensued. The key issue was whether Pope demonstrated entitlement to a new trial due to the missing transcripts. The State contended that Pope did not meet his burden of showing a reversible error. Ultimately, the court concluded that Pope failed to present a valid claim of error, leading to a reversal of the postconviction court's decision. Relevant legal precedent established that an appellant must assert a reviewable error related to the missing trial portions before an inquiry is warranted.

In Perry, the Wisconsin Supreme Court established that an appellant must assert that a missing portion of the trial transcript would demonstrate a reviewable error, referred to as a "facially valid claim of error." The court clarified that this requirement imposes a burden on the appellant to show a "colorable need" for the missing transcript, which must not be trivial or clearly harmless. Although the appellant is not required to prove that the alleged error is prejudicial, the claimed error must have potential substance. 

In Pope's case, the court noted that while he acknowledged the need to demonstrate a "colorable need," he failed to identify any specific, reviewable error in his postconviction motion. The court emphasized that the review is limited to the allegations within Pope's motion itself, excluding any further claims made in his brief. Thus, Pope did not meet the burden established in Perry by failing to assert a facially valid claim of error regarding the missing transcripts of the final pretrial conference and trial proceedings.

Pope has engaged in a lengthy postconviction and appellate process over twenty-one years, filing multiple motions and appeals, including one postconviction motion, three motions, an appeal, a Knight petition, and two petitions for review with the Wisconsin Supreme Court. He was notified of a failure to timely file a transcript statement during an appeal, to which he responded by asserting that the sentencing transcript was the only necessary document. His subsequent statements indicated he believed there was a valid claim of error related to his sentencing; however, he did not specify what that claim was in his postconviction motion and did not assert any actual error occurred during sentencing.

The court compared Pope's efforts to those of another appellant in the Perry case, noting that while the Perry appellant had done everything reasonable to perfect his appeal, Pope had not. Evidence, such as a letter from Pope in July 1996 inquiring about his appeal and transcripts, indicated he understood their importance. Additionally, he was advised multiple times that he needed to articulate a potentially meritorious claim for relief, which he failed to do. As a result, the court concluded that Pope did not meet his burden to assert a valid claim of error in his postconviction motion, leading to the reversal of the postconviction court's order for a new trial and the reinstatement of his conviction.

The court reversed the previous order and reinstated the conviction, noting that it is not recommended for publication. The appeal specifically concerns the postconviction order issued by Judge Jeffery A. Conen, despite multiple judges overseeing the criminal and postconviction proceedings. References to the Wisconsin Statutes pertain to the 2015-16 version, with no changes to the statutes under which Pope was charged. The sentencing transcript and conviction judgment do not clarify whether the sentences were concurrent or consecutive, leaving the trial court's intent ambiguous. The SM-33 form has been replaced by the CR-233 Notice of Right to Seek Postconviction Relief form. The court amended the year of the order in a prior decision dated October 4, 2016. Although records for Class A felonies are kept for seventy-five years, court reporters only retain notes for ten years. The State claimed Pope was guilty of laches for delaying his postconviction relief request, but the court did not address this argument as it decided the case on other grounds. The jury did not determine that Pope used a dangerous weapon during the commission of the crime, despite him being charged under the relevant statute.