                                                            2019 WI 110

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2017AP880-W


COMPLETE TITLE:        State of Wisconsin ex rel. Joshua M. Wren,
                                 Petitioner-Petitioner,
                            v.
                       Reed Richardson Warden,
                                 Respondent.

                          REVIEW OF DECISION OF THE COURT OF APPEALS

OPINION FILED:         December 26, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 6, 2019

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              Carolina Stark

JUSTICES:
HAGEDORN, J., delivered the majority opinion of the court, in
which ROGGENSACK, C.J., ZIEGLER and KELLY, JJ., joined.
BRADLEY, ANN WALSH, J., filed a dissenting opinion, in which
BRADLEY, REBECCA GRASSL and DALLET, JJ., joined.
NOT PARTICIPATING:



ATTORNEYS:
     For the petitioner-petitioner, there were briefs filed by
John T. Wasielewski and Wasielewski & Erickson, Milwaukee. There
was an oral argument by John T. Wasielewki.


     For the respondent-respondent, there was a brief filed by
Sara Lynn Shaeffer, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Sara Lynn Shaeffer.
                                                                         2019 WI 110




                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.    2017AP880-W
(L.C. No.   2006CF2518)

STATE OF WISCONSIN                               :            IN SUPREME COURT

State of Wisconsin ex rel. Joshua M. Wren,

             Petitioner-Petitioner,
                                                                        FILED
       v.
                                                                   DEC 26, 2019
Reed Richardson Warden,
                                                                      Sheila T. Reiff
             Respondent.                                           Clerk of Supreme Court




HAGEDORN, J., delivered the majority opinion of the court, in
which ROGGENSACK, C.J., and ZIEGLER and KELLY, JJ., joined.
BRADLEY, ANN WALSH, J., filed a dissenting opinion, in which
BRADLEY, REBECCA GRASSL and DALLET, JJ., joined.




       REVIEW of a decision of the Court of Appeals.                  Affirmed.



       ¶1    BRIAN HAGEDORN, J.         After his conviction in 2007 for

reckless homicide, Joshua M. Wren alleges his counsel failed to

file   a    notice   of   intent   to   pursue       postconviction        relief      as

promised, causing Wren to lose his direct appeal rights.                            Wren

knew this, however, by sometime in 2010 or 2011.                      Over the next
several years, Wren filed four pro se motions relating to his
                                                                        No.    2017AP880-W



conviction, none of which raised his counsel's alleged blunders.

Then, in 2017, Wren filed a petition for a writ of habeas corpus

asserting        ineffective       assistance      of    counsel   for    failing       to

appeal, and seeking to reinstate his direct appeal rights.                              In

defense, the State pled laches, resting its case on the fact

that the attorney who made the alleged missteps passed away in

2014, and no case files or notes remained.                    The court of appeals

agreed with the State, imposed laches, and denied the petition.1

       ¶2        Before us, Wren asserts that our adoption of laches as

an available defense to a habeas petition was ill-considered and

should be reexamined.              But even if laches can bar his claim,

Wren maintains that the State failed to prove the elements, and

that the court of appeals erroneously exercised its discretion

in applying laches here.

       ¶3        We disagree.       This court held just a few months ago

that       the   State     may   assert   laches    as    a   defense    to     a   habeas

petition.           See State ex rel. Lopez-Quintero v. Dittmann, 2019

WI 58,       ¶10,    387    Wis. 2d 50,    928     N.W.2d 480.      We        decline   to
revisit that ruling today.                On the merits, we agree with the

court of appeals that the State established unreasonable delay

and prejudice, the two laches elements Wren challenges.                                 We

further conclude that the court of appeals did not erroneously

exercise its discretion by applying laches and barring relief.




       State ex rel. Wren v. Richardson, No.
       1                                                                 2017AP880-W,
unpublished slip op. (Wis. Ct. App. Nov. 12, 2018).

                                            2
                                                                      No.    2017AP880-W



                                    I.    BACKGROUND

       ¶4     In early 2006, 15-year-old Joshua Wren shot and killed

a man.2      He pled guilty to first-degree reckless homicide, and in

March 2007 was sentenced to 21 years of initial confinement and

nine       years   of    extended        supervision——considerably          more     than

Wren's counsel suggested and longer than was recommended in the

presentence investigation report (PSI).3

       ¶5     On   the       day   of   sentencing,      Wren's    attorney,       Nikola

Kostich,      filed     the    "Notice     of    Right   to   Seek   Postconviction

Relief"; this form contained a checked box indicating Wren was

undecided about pursuing postconviction relief.                       No notice of

intent to seek postconviction relief was ever filed.

       ¶6     During the next ten years, Wren filed and litigated

four pro se motions related to his conviction.

      In     2010,     he     unsuccessfully      moved      to   vacate     his     DNA

       surcharge.        The circuit court denied his 2011 motion for

       reconsideration.

      In 2013, Wren again challenged the DNA surcharge and also
       sought to amend the judgment of conviction regarding his


       The State charged Wren with one count of first-degree
       2

reckless homicide. The complaint alleged that, in an interview
conducted by a Milwaukee police detective, Wren admitted he
"took out a revolver from his left sweatshirt pocket and pointed
the gun up in the air and fired a shot." In the same interview,
Wren stated that "he shot this man on accident."

       The PSI recommended 13 years of initial confinement and
       3

five to six years of extended supervision.    In exchange for
Wren's guilty plea, the State agreed not to seek a specific
sentence.

                                             3
                                                                           No.   2017AP880-W



          restitution obligations.           The circuit court denied the DNA

          surcharge challenge once again, but did amend the judgment

          of conviction to clarify his restitution requirements.4

         In 2015, he sought a copy of the PSI.                This motion was also

          denied, in part on the grounds that Wren previously had an

          opportunity to review the report and "the direct appeal

          deadline ha[d] long since expired."

         In 2016, Wren sought sentence modification, arguing that

          the   circuit   court     relied    on    improper       facts    (an    alleged

          beating by Wren of a fellow prisoner).                      The motion was

          denied as untimely filed.

          ¶7    Finally, in 2017, more than a decade after sentencing,

Wren filed a Knight petition5 in the court of appeals seeking to

reinstate his direct appeal rights on the grounds of ineffective

assistance of counsel.              In Wren's telling, he and his family

wanted to appeal and made multiple attempts to communicate this

to       Kostich.     Yet    they    heard       nothing     back.         The    petition

described        Kostich's   disciplinary          history    to     substantiate       his
non-responsiveness.6          The long and short of it, according to

       Specifically, the circuit court amended the judgment "to
          4

reflect that restitution shall be paid from up to 25% of the
defendant's prison earnings (rather than funds)."

       "Habeas petitions to the court of appeals alleging
          5

ineffective assistance of appellate counsel are often referred
to as 'Knight petitions.'" State ex rel. Kyles v. Pollard, 2014
WI 38, ¶27 n.11, 354 Wis. 2d 626, 847 N.W.2d 805; see also State
v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).

       The petition notes that Wren's family discovered Kostich's
          6

"license to practice law in Wisconsin was suspended for 60 days
in November 2012"; that he "was reprimanded in 1986 for a
                                             4
                                                                            No.   2017AP880-W



Wren's petition, is that Kostich promised to appeal, did not do

so, and never responded to multiple inquiries by Wren and his

family.       Wren insists he was left entirely without counsel in

violation of his Sixth Amendment rights, and should therefore

have his direct appeal rights reinstated.

       ¶8      The      court    of     appeals      remanded      the     matter    to     the

circuit      court      for     an    evidentiary      hearing.          However,    Kostich

passed away in 2014, so the State had no witnesses, nor were any

of Kostich's case files located.                     Nonetheless, the circuit court

heard from Wren and three of his family members, and rendered

factual findings based on the evidence presented.

       ¶9      Relevant circuit court findings include the following:

Wren signed the Notice of Right to Seek Postconviction Relief

six days before sentencing, he did not personally check the box

indicating         he    was     undecided          about     pursuing      postconviction

relief,      and     Wren      was    unaware     which      box   would    end     up    being

checked.       Wren contacted Kostich in a timely manner, and Kostich

told    Wren    that      he    would     appeal.           Several   of    Wren's       family
members      spoke       with        Kostich    immediately        after    the     original

sentencing hearing, and Kostich told them an appeal would be

forthcoming.            After the deadline to appeal had passed, Wren

wrote Kostich regarding the status of the appeal and never heard

back.       Wren's mother, father, and sister made similar efforts to

criminal conviction of failing to file tax returns"; and that
"in 2010 he was reprimanded for representing a person on a
criminal charge, in which he had previously consulted with the
victim in the criminal case about potential civil action against
the person ultimately represented in the criminal matter."

                                                5
                                                                               No.   2017AP880-W



reach Kostich before and after the appeal deadline passed, all

to no avail.        Kostich "intentionally led" Wren and his family to

believe he was going to timely file postconviction relief, but

he failed to do so and notified no one.                                 Kostich failed to

contact     Wren    or     his    family      after       sentencing,       despite         their

persistent efforts.

      ¶10    In accordance with Wren's testimony, the circuit court

additionally found that sometime in 2010 or 2011, Wren knew no

appeal had been filed.                Though he sought relief of various kinds

through four other pro se motions, Wren was unaware that he

could   petition         to    reinstate      his       direct     appeal      rights.        He

"wanted     to     seek       postconviction           relief     regarding       ineffective

assistance of trial counsel and the sentence, but he did not

know how to do so."              Wren eventually learned what to do and how

to do it after communicating with an incarcerated uncle, and he

filed the present habeas petition within three to four months.

      ¶11    Following          the     evidentiary         hearing,        the      court    of

appeals     entertained          briefing         based    on     the     circuit         court's
findings.         The     State      did    not       challenge    the    facts      found    as

clearly     erroneous,         nor    did    it       address    the     merits      of    Wren's

ineffective assistance of counsel argument because it could not;

the State had no evidence or witnesses to present regarding what

happened and why.               Rather, it raised the defense of laches,

essentially arguing that its hands were tied due to Wren's delay

and   his    former       counsel's         intervening         death.      The      court    of

appeals     concluded         that    the    State      proved     the    requisite        legal
elements     of      laches,          and    exercising           its    own      discretion,
                                                  6
                                                                    No.   2017AP880-W



determined it was equitable to apply laches in this case.                         We

granted Wren's petition for review.



                                  II.   DISCUSSION

     ¶12      Wren raises three arguments against the application of

laches to his case.7           First, he contends the doctrine of laches

should not apply to habeas petitions at all.                   Second, he asserts

the State failed to prove two of the three elements of laches——

unreasonable delay and prejudice.                 Finally, Wren maintains the

court    of    appeals     erroneously          exercised     its   discretion    in

choosing to apply laches to his petition.



              A.     Laches Is a Defense to a Habeas Petition

     ¶13      Wren    begins    with    a   request    that    we   reexamine    our

adoption      of   the   laches    defense       to   habeas    petitions.       His

principal     argument     is    that   we      incorporated    laches    into   our

habeas corpus jurisprudence somewhat thoughtlessly in two court

of appeals opinions.8           Whatever merit those criticisms may have,


     7 Wren also argues the merits of his habeas petition and
asks us to reinstate his direct appeal rights. However, because
we affirm the court of appeals' application of laches, we need
not address this argument.
     8 Laches was first explicitly mentioned as a defense against
a habeas petition in Wisconsin in 1986. State ex rel. McMillian
v. Dickey, 132 Wis. 2d 266, 281, 392 N.W.2d 453 (Ct. App. 1986)
("While we recognize that a habeas proceeding may be dismissed
under the equitable doctrine of laches, the delay on the part of
the petitioner must be unreasonable."), abrogated on other
grounds by State ex rel. Coleman v. McCaughtry, 2006 WI 49, 290
Wis. 2d 352, 714 N.W.2d 900. A later court of appeals decision
cited McMillian for the proposition that "[a]s an equitable
                                            7
                                                              No.   2017AP880-W



however, we had occasion to directly answer this question last

term.     In Lopez-Quintero, we made clear that the State may raise

laches as an affirmative defense to a habeas petition.                     387

Wis. 2d 50, ¶16.         Moreover, Wren did not raise and brief this

issue below, nor was it presented in Wren's petition for review.

Having just considered the matter, we decline Wren's invitation

to reconsider it.



    B.     Laches Was Properly Applied to Wren's Habeas Petition

     ¶14    "Laches is founded on the notion that equity aids the

vigilant,    and   not    those   who   sleep   on   their   rights   to   the

detriment of the opposing party . . . ."             27A Am. Jur. 2d Equity

§ 108.9     It is, at root, an equitable defense to an equitable

claim.10    Though different jurisdictions structure the analytical

doctrine, habeas corpus is subject to the doctrine of laches."
State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 800, 565
N.W.2d 805 (Ct. App. 1997), overruled on other grounds by State
ex rel. Lopez-Quintero v. Dittmann, 2019 WI 58, 387 Wis. 2d 50,
928 N.W.2d 480.

     Outside the context of habeas corpus, laches is a well-
established equitable principle in Wisconsin jurisprudence.   As
early as 1859, this court stated that "[u]nreasonable delay, and
mere lapse of time, independently of any statute of limitations,
constitute a defense in a court of equity."          Sheldon v.
Rockwell, 9 Wis. 158 (*166), 162 (*181) (1859).
     9 See also Kenosha County v. Town of Paris, 148 Wis. 2d 175,
188, 434 N.W.2d 801 (Ct. App. 1988) ("equity aids the vigilant,
not those who sleep on their rights").
     10A habeas petition is an equitable claim, so application
of an equitable defense like laches makes sense, especially
where habeas petitions can be filed years after the conviction.
See State ex rel. Dowe v. Circuit Court for Waukesha Cty., 184
Wis. 2d 724, 728-29, 516 N.W.2d 714 (1994) ("As an equitable
                                        8
                                                                      No.    2017AP880-W



framework somewhat differently, the doctrine is consistent in

concept:    did a party delay without good reason in asserting its

rights, and did the delay prejudice the party seeking to defend

that claim.

    ¶15    In    Wisconsin,       application       of       laches         to   habeas

petitions proceeds in two steps.            First, the party asserting the

defense——the State in this instance——must prove the following

three elements:      "(1) unreasonable delay in filing the habeas

petition, (2) lack of knowledge on the part of the State that

the petitioner would be asserting the habeas claim, and (3)

prejudice to the State."          Lopez-Quintero, 387 Wis. 2d 50, ¶16.

Second, even if the State proves all three elements, the court

may——in    its   discretion——choose         not   to     apply      laches       if   it

determines that application of the defense is not appropriate

and equitable.      See State ex rel. Washington v. State, 2012

WI App 74, ¶26, 343 Wis. 2d 434, 819 N.W.2d 305.

    ¶16    Whether the State proved all three elements under step

one is a legal question we review de novo.                          State ex rel.
Coleman v. McCaughtry, 2006 WI 49, ¶17, 290 Wis. 2d 352, 714

N.W.2d 900.      Assuming   step     one    is    satisfied,        we      review    the

decision   to    apply   laches     under    step      two    for     an     erroneous

exercise of discretion.       Id.




doctrine . . . habeas corpus is confined to situations in which
there is a pressing need for relief or where the process or
judgment upon which a prisoner is held is void.").

                                       9
                                                                          No.   2017AP880-W



       ¶17     Wren asserts that the State failed to prove two of the

three elements——unreasonable delay and prejudice.11                         And even if

the    State      did      meet   its    burden,     Wren   maintains     the     court    of

appeals erroneously chose to apply laches in his case.



                      1.     The State Proved Unreasonable Delay

       ¶18     Whether a delay is reasonable is case specific; we

look at the totality of circumstances.                       State ex rel. McMillian

v. Dickey, 132 Wis. 2d 266, 281, 392 N.W.2d 453 (Ct. App. 1986)

("What is reasonable varies from case to case and involves the

totality of the circumstances."), abrogated on other grounds by

Coleman, 290 Wis. 2d 352; see also 27A Am. Jur. 2d Equity § 131

("Whether         a    party's        delay   is     unreasonable    depends       on     the

circumstances of the particular case.").

       ¶19     In     rendering        its    conclusion,     the   court    of    appeals

zeroed in on two factual findings.                         First, Wren was aware no

appeal      had       been    filed     by    2010    or    2011.    And     during       the

intervening time period, he filed four separate pro se motions,
none     of    which         raised     the   issue     presented    in     this    habeas

petition.         The court of appeals held that the six-year delay

from the time he knew no appeal had been filed——a full ten years

after       the        deadline         to    seek     postconviction        relief——was

unreasonably long.




       Wren concedes the second element, i.e., the State lacked
       11

knowledge that he would be asserting the habeas claim.

                                               10
                                                           No.    2017AP880-W



       ¶20    As an initial matter, unreasonable delay in laches is

based not on what litigants know, but what they might have known

with    the   exercise   of   reasonable    diligence.   This    underlying

constructive knowledge requirement arises from the general rule

that "ignorance of one's legal rights is not a reasonable excuse

in a laches case."       27A Am. Jur. 2d Equity § 138.12         "Where the

question of laches is in issue, the plaintiff is chargeable with

such knowledge as he might have obtained upon inquiry, provided

the facts already known by him were such as to put a man of

ordinary prudence upon inquiry."           Melms v. Pabst Brewing Co., 93

Wis. 153, 174, 66 N.W. 518 (1896) (citations omitted).                To be

sure, what we expect will vary from case to case and litigant to

litigant.      But the expectation of reasonable diligence is firm

nonetheless.13

       ¶21    Thus, the question is when Wren either knew or should

have known he had a potential claim.           We agree with the court of

appeals that the delay clock started running no later than 2010

or 2011 when Wren, by his own admission, learned no appeal had
been filed and had long since heard nothing from his attorney.

       See also Jones v. United States, 6 Cl. Ct. 531, 533
       12

(1984) ("Where laches is raised, knowledge of the law is imputed
to all plaintiffs.   Consequently, professed ignorance of one's
legal rights does not justify delay in filing suit.").

       See also 27A Am. Jur. 2d Equity § 139 ("The correct
       13

inquiry in determining whether a claimant's conduct resulted in
a want of due diligence requires focus not upon what the
plaintiff knows, but what he or she might have known, by the use
of the means of information within his or her reach, as the law
requires a party to discover those facts that were discoverable
through the exercise of reasonable diligence.").

                                     11
                                                                        No.    2017AP880-W



After obtaining this knowledge, Wren researched and leveraged

his available resources to craft four separate pro se motions

relating to his conviction and sentence——none even hinting at

the claims raised before us.14                   After four attempts to seek

various kinds of other postconviction relief, we agree with the

court of appeals that a habeas petition coming ten years after

his conviction and six years after he knew his attorney didn't

file the appeal he was allegedly promised is a delay without

good reason.

    ¶22       Wren    raises    two     principal      objections       in     response.

First, he didn't know he could make such a claim and didn't know

how to do so; and when he did discover this possible claim, he

timely brought it within three to four months.                          Second, Wren

proffers      that    any   delay     is   actually    the    State's         fault,   and

that's why he was supposed to have counsel in the first place.

    ¶23       Wren's    first    objection,       echoed     by   the    dissent,      is

really an effort to except Wren from the constructive knowledge

requirement we apply to all other litigants.                      The not-so-silent
argument being made is that Wren is less capable than others and

should   be    held    to   a   lower      standard.       However,     we     regularly


    14 His first two motions dealt with the DNA surcharge and
restitution award.   It was not until his third motion in 2015
that he turned his attention to his sentence, the issue he
states he would like to challenge if his direct appeal rights
are reinstated.      But even his 2016 motion for sentence
modification was based on the circuit court's purported reliance
on an improper fact——again, nothing suggesting a broader
challenge to his conviction or sentence, or to his trial
counsel's effectiveness.

                                            12
                                                                 No.   2017AP880-W



require legally untrained litigants to assert their rights in a

timely manner.15     Nothing prevented Wren from contacting another

attorney.       Nothing    prevented     Wren   from    researching    available

options to ensure he took advantage of every possible legal

argument he could make.           It surely cannot be that 20-year-olds

(Wren's     approximate     age   when    he    found     out   no   appeal   was

forthcoming) are deemed incompetent.               And while the PSI noted

Wren had a second grade reading level at the time of sentencing,

that detail alone does not mean he cannot research, consult

others, and find out what needs to be done.                 In fact, Wren did

just this when he filed four pro se motions regarding other

matters prior to filing his habeas petition.                     This reflects

someone who is more than capable of being resourceful.16

      ¶24   Wren's paramount objection seems to be that as a pro

se   litigant   whose     postconviction       attorney   abandoned    him,   any

delay is the State's fault, not his.              Incorrect.     As we explain




       See infra, ¶25.
      15                   Courts have long recognized that a
violation of constitutional rights——and ineffective assistance
of counsel is a violation of the Sixth Amendment——must be timely
asserted even in criminal cases.    See Yakus v. United States,
321 U.S. 414, 444 (1944) ("No procedural principle is more
familiar to this Court than that a constitutional right may be
forfeited in criminal as well as civil cases by the failure to
make timely assertion of the right before a tribunal having
jurisdiction to determine it.").

       For example, Wren noted in his habeas petition that his
      16

family discovered Kostich's disciplinary history. Moreover, the
circuit court made no findings suggesting that Wren had the kind
of severe mental limitations that might call for even broader
latitude than we normally give pro se litigants.

                                         13
                                                                      No.   2017AP880-W



below, we have long required pro se litigants, just like those

with an attorney, to act reasonably in defense of their rights.

       ¶25        Pro se litigants are generally granted "a degree of

leeway" in recognition of the fact that they                         are ordinarily

unfamiliar with the procedural rules and substantive law that

might govern their appeal.                  Rutherford v. LIRC, 2008 WI App 66,

¶27, 309 Wis. 2d 498, 752 N.W.2d 897.                    But by definition, "a

degree of leeway" means the additional leniency will run out at

some    point.          Thus,   for    example,      while    we   construe   pro     se

petitions, motions, and briefs to make the most intelligible

argument we can discern, we do not impute to pro se litigants

the best argument they could have, but did not, make.17                             And

while       pro    se   litigants     are    given   leeway   in   the   style   of    a

motion, we ordinarily hold them to strict deadlines, whether

they know about them or not.18                 In other words, we generally do

not hold pro se litigants only to deadlines or arguments that



       See State v. Romero-Georgana, 2014 WI 83, ¶69, 360
       17

Wis. 2d 522, 849 N.W.2d 668 ("Although we liberally construe
filings by pro se litigants, . . . there is a limit to our
lenience. A reviewing court might avert its eyes from the flaws
on   the   peripheries, but   it   will   not  ignore   obvious
insufficiencies at the center of a motion." (internal citation
omitted)).

        See Waushara County v. Graf, 166 Wis. 2d 442, 452, 480
       18

N.W.2d 16 (1992) ("Pro se appellants must satisfy all procedural
requirements, unless those requirements are waived by the court.
They are bound by the same rules that apply to attorneys on
appeal.    The right to self-representation is '[not] a license
not to comply with relevant rules of procedural and substantive
law.'" (quoting Farretta v. California, 422 U.S. 806, 834 n.46
(1975))).

                                              14
                                                             No.   2017AP880-W



they know; we hold them to deadlines and arguments we expect

them to discover with reasonable diligence.            This means that

once Wren no longer had a lawyer representing him, he was not

free to do nothing to address the claims he raised in his habeas

petition.     Rather, he had an independent obligation to act——the

same standard we apply to all pro se litigants.

     ¶26     The postconviction relief process is instructive on

this point.      Following a direct appeal, defendants seeking to

attack their criminal convictions may do so through a motion

under Wis. Stat. § 974.06 (2017-18).19        But this form of relief

comes with a significant restriction.           Under subsection (4),

unless a "sufficient reason" is given, any legal issues that

could have been raised in a prior motion may not be brought in a

subsequent § 974.06 motion.         § 974.06(4).   And in 1994, this

court made clear that if the issue could have been raised on

direct appeal, the litigant has lost the opportunity to bring it

under     § 974.06.   State   v.   Escalona-Naranjo,   185    Wis. 2d 168,

173, 517 N.W.2d 157 (1994).20




     19All subsequent references to the Wisconsin Statutes are
to the 2017-18 version.
     20This is no outlier; State v. Escalona-Naranjo has been
cited thousands of times in Wisconsin courts. 185 Wis. 2d 168,
517 N.W.2d 157 (1994).

                                    15
                                                                     No.   2017AP880-W



     ¶27       The vast majority of motions under Wis. Stat. § 974.06

are filed by pro se litigants.21               The statute's strictures are

not ignored or relaxed for pro se litigants; we apply the same

rules     to    everyone.      This     means     that     even     a     potentially

meritorious       constitutional       claim     on    a       petitioner's     third

§ 974.06 motion——a claim for ineffective assistance of counsel,

for example——is a nonstarter if it could have been brought on

direct appeal or in the prior § 974.06 motions.22                       These pro se

litigants,       no   less   than     Wren     here,     are     almost     uniformly

untrained in the law.        Yet we expect them to exercise reasonable

diligence to learn all potentially meritorious claims and to

raise them in their first § 974.06 motion.                     If they don't, the

claim is procedurally barred, whatever its merits may be.23


     21This is in large part because there is no constitutional
right to counsel on a collateral attack.        Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987) ("We have never held that
prisoners have a constitutional right to counsel when mounting
collateral attacks upon their convictions, . . . and we decline
to so hold today.      Our cases establish that the right to
appointed counsel extends to the first appeal of right, and no
further." (internal citation omitted)).
     22See,    e.g.,   Escalona-Naranjo,    185   Wis. 2d at   186
("[Escalona-Naranjo] has not alleged a sufficient reason as to
why his allegation of ineffective assistance of trial counsel
could not have been raised when he filed his [Wis. Stat.
§] 974.02 motion for a new trial."); Romero-Georgana, 360
Wis. 2d 522, ¶5 ("[T]he defendant has not offered a sufficient
reason in his third postconviction motion for failing to raise
his [Wis. Stat.] § 974.06 claim [for ineffective assistance of
counsel]    in    his    second    postconviction    motion. . . .
Consequently, the defendant's claim is barred.").
     23Unless, of course, an exception in Wis. Stat. § 974.06 is
triggered.

                                        16
                                                                     No.   2017AP880-W



      ¶28     Wren   appears    to    believe——as      does    the   dissent——that

ineffective     assistance      of    counsel     is   an    exception     to   these

principles.      Yet no authority to this effect is cited, nor are

we aware of any.          Without question, if Wren told Kostich to file

an   appeal    and   Kostich     failed    to    do    so,    that   failure    would

establish constitutionally deficient performance, and prejudice

is presumed.         See Garza v. Idaho, 139 S. Ct. 738, 744 (2019)

("[P]rejudice        is    presumed    'when      counsel's      constitutionally

deficient performance deprives a defendant of an appeal that he

otherwise would have taken.'" (quoting Roe v. Flores-Ortega, 528

U.S. 470, 484 (2000))).              The law is clear that Wren is not

liable for the faults of his constitutionally deficient counsel.

See Coleman v. Thompson, 501 U.S. 722, 754 (1991).

      ¶29     But Wren and the dissent take this proposition far

afield from its more modest foundations.                 They argue that when a

defendant alleges he has been denied his Sixth Amendment right

to effective assistance of counsel, any subsequent delay must be

attributed to the State due to its failure to provide adequate
counsel in the first instance.                  Or said another way, if his

counsel failed, Wren is relieved of any further obligation to

assert his own rights.            Or maybe more charitably, because he

didn't know what actions to take, Wren was absolved from taking

any action at all.24           There are two problems with this line of

argument.

       Wren also argues he did not know he should file a habeas
      24

petition in the court of appeals until our 2014 decision in
Kyles, 354 Wis. 2d 626. But this decision only clarified where
such a claim should be filed.      Nothing in Kyles announced
                                          17
                                                              No.    2017AP880-W



      ¶30   First,   it   assumes    Wren's    Sixth    Amendment    right   to

counsel was denied.       But that is the very claim Wren wishes to

maintain if this habeas petition is successful.                     One cannot

assume his ultimate claim will be successful in order to assess

whether he delayed in bringing that very claim.

      ¶31   Second, and more to the point, Wren's argument that

laches cannot apply when counsel fails to appeal as promised is

without any legal support in Wisconsin.             The issue before us is

not, did Wren, with counsel, miss the deadline.                The question

is, knowing counsel did not file an appeal, did Wren himself

unreasonably delay in seeking relief.           If the dissent is correct

that any delay of the sort alleged here is attributable to the

State, then Wren could wait ten, twenty, or even thirty years to

raise his claim, regardless of any impact on the State's ability

to   address   the   merits   of    an    alleged   ineffective     assistance

claim.      This cannot be correct.           Pro se litigants, including

those who claim their trial counsel did not serve them by filing

an appeal, still have an independent obligation to timely raise
these issues with the court on their own.              A pro se litigant has

no license to "lay in the weeds and wait to raise an issue of


anything new related to the substance or timing of a petition to
reinstate direct appeal rights because of ineffective assistance
of trial counsel. The issue here is not that Wren timely raised
the claim in the wrong court. It is that he untimely raised the
claim.

     This argument is also unpersuasive in light of the fact
that, notwithstanding his filing of several postconviction
motions in the interim, Wren did not file his habeas petition
until three years after Kyles was decided.

                                         18
                                                               No.   2017AP880-W



potential   merit."        Washington,    343   Wis. 2d 434,    ¶23.      After

knowing no appeal had been filed, and after knowing his counsel

had not responded to him, Wren had an obligation to exercise

reasonable diligence and raise the issues in a timely manner.

Wren's delay of six to seven years from the time he knew this is

not attributable to the State; it is on Wren.            Put simply, Wren

had some time to figure this out, but not unlimited time.                Here,

his delay was unreasonable.



                     2.    The State Proved Prejudice

     ¶32    Wren's unreasonable delay alone is not sufficient to

support the application of laches.              The State also must prove

that the unreasonable delay prejudiced its defense against the

habeas petition.25        Coleman, 290 Wis. 2d 352, ¶19.       "What amounts


     25Many jurisdictions include in their prejudice analysis
whether the delay prejudices the state's ability to address the
underlying merits should the petition be granted. The State has
made no such argument in this case, but it is a common position
around the country.   See, e.g., United States v. Darnell, 716
F.2d 479, 480 (7th Cir. 1983) ("The government's ability to meet
successfully the allegations of the motion or to present a case
against the defendant if he is granted a new trial may be
greatly diminished by the passage of time." (footnote omitted));
Telink, Inc. v. United States, 24 F.3d 42, 48 (9th Cir. 1994)
("In making a determination of prejudice, the effect of the
delay on both the government's ability to respond to the
petition and the government's ability to mount a retrial are
relevant." (citing Darnell, 716 F.2d at 480)); In re Douglas,
200 Cal. App. 4th 236, 246 (Cal. Ct. App. 2011) ("[T]he People
have been prejudiced both with regard to retrying Defendant and
to responding to issues raised in Defendant's petition.");
Armstrong v. State, 747 N.E.2d 1119, 1120 (Ind. 2001) ("For
post-conviction laches purposes, prejudice exists when the
unreasonable delay operates to materially diminish a reasonable
likelihood of successful re-prosecution." (citation omitted));
                                     19
                                                       No.   2017AP880-W



to prejudice, such as will bar the right to assert a claim after

the passage of time pursuant to laches, depends upon the facts

and circumstances of each case, but it is generally held to be

anything that places the party in a less favorable position."

27A Am. Jur. 2d Equity § 143.

    ¶33   Courts   commonly   describe   two   types   of    prejudice:

evidentiary and economic.26     The State here claims evidentiary


Woodberry v. State, 101 P.3d 727, 731 (Kan. Ct. App. 2004) ("The
length of th[e] delay is unreasonable, and the State would
undoubtedly   be    prejudiced  if    forced   to   retry   [the
petitioner]."); Jones v. State, 126 A.3d 1162, 1182 (Md. 2015)
("[W]e conclude that, for purposes of determining whether laches
bars an individual's ability to seek coram nobis relief,
prejudice involves not only the State's ability to defend
against the coram nobis petition, but also the State's ability
to reprosecute."); Johnson v. State, 714 N.W.2d 832, 838 (N.D.
2006) ("[P]rejudice exists when the unreasonable delay operates
to materially diminish a reasonable likelihood of successful re-
prosecution." (quoting Kirby v. State, 822 N.E.2d 1097, 1100
(Ind. Ct. App. 2005))); Ex Parte Perez, 398 S.W.3d 206, 215
(Tex. Crim. App. 2013) ("[We] expand the definition of prejudice
under the existing laches doctrine to permit consideration of
anything that places the State in a less favorable position,
including prejudice to the State's ability to retry a
defendant . . . .").
    26 See ABB Robotics, Inc. v. GMFanuc Robotics Corp., 828
F. Supp. 1386, 1393 (E.D. Wis. 1993) ("Material Prejudice 'may
be either economic or evidentiary.'" (quoted source omitted)).
American   Jurisprudence,  using  slightly   different  terms,
describes it this way:

    Generally, there are two main types of prejudice
    arising from delay by plaintiffs in bringing their
    claims that support the laches defense:   (1) "defense
    prejudice," whereby the defendant is impaired from
    successfully defending itself from suit given the
    passage of time; and (2) "economic prejudice," whereby
    the   costs  to   the   defendant  have  significantly
    increased due to the delay.

                                 20
                                                                          No.   2017AP880-W



prejudice.          "Evidentiary       prejudice . . . may              arise    where     a

plaintiff's      delay     in    bringing      an     action      has    curtailed       the

defendant's ability to present a full and fair defense on the

merits due to the loss of evidence, the death of a witness, or

the unreliability of memories."             30A C.J.S. Equity § 158.

       ¶34    The   loss   of    key   records        and   the    unavailability        of

essential witnesses are "classic elements" of prejudice in a

laches defense.          Id.     The death of key witnesses is precisely

the kind of thing laches is aimed at, particularly where the

"the        decedent's     knowledge        is        crucial       to      a     party's

defense . . . ."           27A   Am.    Jur.     2d    Equity      § 152.        American

Jurisprudence explains:

       The doctrine of laches is peculiarly applicable where
       the difficulty of doing justice arises through the
       death of the principal participants in transactions
       complained of, or of witnesses to transactions . . . .
       For example, documents may have been misplaced or
       destroyed, or it may be difficult or impossible for
       the party to defend a claim if essential witnesses are
       deceased . . . .
Id. § 149.27

27A Am. Jur. 2d Equity § 144.

       The Wisconsin Practice Series offers draft forms for
       27

practitioners.   One of its sample laches forms addresses
precisely this type of scenario as an archetypal issue. The
form reads:

       The plaintiff had knowledge of all of the facts set
       forth in the complaint at least _______ years before
       commencement of this action.     During that interval,
       all persons who would be material witnesses have died,
       the defendant's position has substantially changed as
       a result, and the defendant is materially prejudiced.
       The plaintiff should be barred by laches from
       obtaining relief in this action.
                                          21
                                                                   No.    2017AP880-W



      ¶35    Wren asserts that the State has not proven prejudice.

He rests his argument largely on the fact that the State's claim

of prejudice relies on the unavailability of Attorney Kostich.

And   in    that   vein,    Wren    points   specifically    to     the     circuit

court's factual findings that he believed Kostich would file an

appeal on his behalf and subsequently failed to respond to Wren

or his family, despite their attempts to contact him.                      If these

findings     are     accepted,      Wren     maintains,     that     establishes

ineffective        assistance      of   counsel,    and     no     contradictory

hypothetical evidence could matter.

      ¶36    Wren's argument on this point is superficially strong,

but it rests on a faulty foundation.            To be sure, the State does

not contest the circuit court's factual findings.                        But fairly

understood, the State advanced something even more fundamental:

it had no tools and no evidence to defend the habeas claim at

all because its necessary evidence——the files and testimony of

Kostich——were unavailable due to Wren's unreasonable delay in

raising the issue.         The State made this point most poignantly at
oral argument when it said it did not challenge the factual

findings because——due to Wren's delay——it had nothing with which

to challenge them.          Even the evidentiary hearing at which the

circuit court made its factual findings was a one-sided story.

This is the very definition of prejudice.




5 Wisconsin Practice Series:            Civil Procedure Forms § 40:433 (3d
ed. 2019).

                                        22
                                                                                 No.    2017AP880-W



       ¶37     It    is     no    excuse    to    say     that      we    do   not     know    what

testimony Kostich would have offered, or what evidence his case

files       may     have     contained.               Zizzo        v.    Lakeside       Steel       &

Manufacturing Co. is instructive on this point.                                2008 WI App 69,

312 Wis. 2d 463, 752 N.W.2d 889.                        There, a son who inherited

property sought to discharge the mortgage obligations on the

property       in    part    on    the     grounds      of    laches.          Id., ¶1.         His

deceased parents received a loan in 1989 and were supposed to

pay off the property in 1993, but no payments were ever made,

nor were efforts made to collect or foreclose on the mortgage.

Id.     The mortgage holder responded that no prejudice was shown,

essentially arguing the claim was "speculative because he does

not     know      exactly        what     information          his       [deceased]       parents

possessed . . . ."                Id., ¶20.        The court's response there is

true     here       as    well:          "Of     course       he     does      not     know    that

information——and that is exactly how he is prejudiced."                                  Id.

       ¶38     It is important to stress that prejudice to a party

for purposes of laches does not mean a party is so disadvantaged
that it cannot prosecute its case.                        The prerequisite under our

law    is    prejudice       due    to     the    delay,      i.e.,      disadvantage          to   a

party.       Thus, the legal element is met by showing the State's

defense of the habeas petition was meaningfully disadvantaged.

The death of the essential witness to the events at issue, along

with the loss of his documentary files, unquestionably satisfies

this standard.




                                                 23
                                                                  No.    2017AP880-W


             3.   The Court of Appeals Appropriately Exercised
                     Its Discretion in Applying Laches
      ¶39     Though   we    agree       that   the   State   proved    all    three

elements of laches as a matter of law, the court of appeals

still had the duty and authority to decide whether to apply

laches in this case.           As noted above, we review this decision

for     an    erroneous     exercise       of   discretion.       Coleman,       290

Wis. 2d 352, ¶17.           Therefore, as long as the court applied a

proper standard of law and employed a demonstrated, rational

process to reach a conclusion that a reasonable court could

reach, the decision should be affirmed.                  State v. Cooper, 2019

WI 73, ¶13, 387 Wis. 2d 439, 929 N.W.2d 192.                   When we review a

discretionary decision, we look for reasons to affirm the lower

court's      decision,      even    if    its    reasoning    could     have    been

explained more fully.         See State v. Hurley, 2015 WI 35, ¶29, 361

Wis. 2d 529, 861 N.W.2d 174.

      ¶40     The court of appeals properly acknowledged it needed

to exercise its discretion whether to apply laches to Wren's

case.     In deciding to do so, the court reasoned that application
was appropriate because "Wren waited over ten years to raise

concerns about the lack of appointment of postconviction counsel

and a direct appeal, despite the fact that he sought relief

numerous times from the trial court."                   State ex rel. Wren v.

Richardson, No. 2017AP880-W, unpublished slip op. at 9 (Wis. Ct.

App. Nov. 12, 2018).               The court relied significantly on the

reasoning of Washington, 343 Wis. 2d 434, where the petitioner
waited five years to seek reinstatement of his appellate rights.


                                           24
                                                                    No.   2017AP880-W



      ¶41   Wren's     objections   to    the    court's     decision      to   apply

laches are predominantly echoes of his previous arguments:                            he

shouldn't be faulted for the State's failure to ensure he had

constitutionally adequate counsel; he didn't know he could do

this; and he wasn't familiar with the court system.

      ¶42   All   of    these   assertions,       however,    are    aimed       at    a

rebalancing of the equities in this court.                  That is not how we

review discretionary decisions.               The court of appeals' decision

is   sufficient   to    satisfy     our   standard     of    review.        It    was

reasonable for the court to conclude that even if the State

failed to provide him with constitutionally adequate counsel,

any subsequent delays by Wren should not be attributed to the

State.28     It   was    reasonable       to    conclude     that    the    State's



       Furthermore, while failure to file an appeal is deficient
      28

performance   for  which   prejudice  is   presumed,  claims  of
ineffective assistance of counsel generally fail absent some
form of corroboration of the attorney's actions.

      A defendant on a post-conviction motion may bring a
      claim of ineffective counsel.       If the counsel in
      question cannot appear to explain or rebut the
      defendant's contentions because of death . . . then
      the   defendant    should    not,   by    uncorroborated
      allegations,   be   allowed   to   make   a   case   for
      ineffectiveness.     The defendant must support his
      allegations   with   corroborating   evidence.      Such
      evidence could be letters from the attorney to the
      client, transcripts of statements made by the attorney
      or any other tangible evidence which would show the
      attorney's ineffective representation. . . . In other
      words, we will presume that counsel had a reasonable
      basis for his actions, and the defendant cannot by his
      own words rebut this presumption. Such a burden will
      assure that post-conviction proceedings will not be
      brought solely on the basis of ineffective counsel
                                         25
                                                                No.   2017AP880-W



inability to mount a defense due to Wren's delay should outweigh

Wren's interest in further challenging his conviction.29                     The

question before us is not whether we would have made the same

decision, but whether the court of appeals applied a proper

standard of law and employed a demonstrated, rational process to

reach a conclusion that a reasonable court could reach.30                    The

answer is yes it did.



                             III.     CONCLUSION

    ¶43     We   decline     Wren's    invitation      to   reconsider       our

decisions   holding   that    laches    is   an    available    defense    to   a

habeas petition.      The State raised the defense in response to

Wren's petition and proved all three elements of laches, in

particular, unreasonable delay and prejudice.                  We also affirm

the court of appeals' exercise of discretion in applying laches



    when counsel dies or for some other reason becomes
    unavailable to explain his or her prior actions.

State v. Lukasik, 115 Wis. 2d 134, 140, 340 N.W.2d 62 (Ct. App.
1983).
    29 The dissent would balance the equities differently,
giving more weight to the prejudice to Wren. Dissent, ¶75.
That is the very definition of rebalancing the scales in
violation of our standard of review.
    30 See Burkes v. Hales, 165 Wis. 2d 585, 590, 478 N.W.2d 37
(Ct. App. 1991) ("And where the record shows that the court
looked to and considered the facts of the case and reasoned its
way to a conclusion that is (a) one a reasonable judge could
reach and (b) consistent with applicable law, we will affirm the
decision even if it is not one with which we ourselves would
agree." (footnote omitted)).

                                       26
                                                           No.    2017AP880-W



to Wren's petition.    Therefore, we affirm the court of appeals'

denial of Wren's petition for a writ of habeas corpus.

    By   the   Court.—The   decision   of   the   court   of     appeals   is

affirmed.




                                  27
                                                                  No.       2017AP880-W.awb


      ¶44   ANN      WALSH     BRADLEY,         J.    (dissenting).              "It    is

incongruous to state that a defendant was denied the right to

counsel and then preclude the defendant from raising a claim

because of errors made due to the absence of counsel."                           State ex

rel. Kyles v. Pollard, 2014 WI 38, ¶56, 354 Wis. 2d 626, 847

N.W.2d 805.       Yet the majority opinion does just that.

      ¶45   In    doing      so,    the    majority       endorses      a    significant

failure in our system of justice.                     Abandoned by counsel and

hampered by a second grade reading level, Wren was left to fend

for himself.       Not surprisingly, he spent several years adrift in

a sea of pro se motions.                   Once he learned that the correct

mechanism to seek reinstatement of the appeal rights he had lost

due to his counsel's abandonment was to file a habeas petition,

he did so promptly.

      ¶46   I agree with the majority that laches is a defense

available to the State in response to a petition for habeas

corpus.     See majority op., ¶3.            Our case law is well established

on   this   point.      See,       e.g.,    State    ex   rel.   Lopez-Quintero         v.
Dittman, 2019 WI 58, ¶10, 387 Wis. 2d 50, 928 N.W.2d 480.

      ¶47   However, I part ways with the majority's application

of the doctrine of laches to the facts of this case.                                In my

view, the majority errs in its determination that Wren's delay

was unreasonable.            The majority further errs in refusing to

disturb the court of appeals' conclusion that the application of

laches in this case was equitable.




                                            1
                                                                No.    2017AP880-W.awb


    ¶48       Because   I     determine       that     Wren's    delay     was      not

unreasonable, and the application of laches to bar his claim is

hardly equitable, I respectfully dissent.

                                          I

    ¶49       At the age of 15, Wren was charged with first-degree

reckless homicide.          The next year, in 2007, he pleaded guilty as

charged in exchange for the State's agreement not to seek a

specific sentence.          As the majority acknowledges, the sentence

he received was "considerably more than Wren's counsel suggested

and longer than was recommended in the presentence investigation

report (PSI)."       Majority op., ¶4.

    ¶50       Wren   told     his   attorney,        Nikola    Kostich,     that    he

disagreed with the sentence.1             Attorney Kostich responded that

Wren should not worry because they would appeal.                        Immediately

after   the    sentencing     hearing,    members       of    Wren's   family      also

spoke with Attorney Kostich, and Attorney Kostich also assured

them that he would file an appeal on Wren's behalf.

    ¶51       Such an appeal never came.              Wren and members of his
family attempted to contact Attorney Kostich over a period of




    1  The facts as set forth in this dissent are largely taken
from the circuit court's findings of fact.    The State has not
challenged these facts as clearly erroneous. Majority op., ¶11.

                                          2
                                                               No.    2017AP880-W.awb


several years, but they received no response.2                  Accordingly, the

circuit     court   found    as     a         fact    that    "Attorney      Kostich

intentionally led Wren and third parties acting on his behalf to

believe that he would timely complete the requirements necessary

for the defendant to seek postconviction relief, and then he

failed to do so without notifying Wren or third parties acting

on his behalf."     Attorney Kostich passed away in 2014.

    ¶52     The circuit court additionally found as a fact that

"[s]ometime    in   2010    or    2011,       Wren    concluded      that   Attorney

Kostich had not filed an appeal on his behalf.                     After reaching

this conclusion, Wren still wanted to seek postconviction relief

regarding     ineffective    assistance          of   trial    counsel      and   the

sentence, but he did not know how to do so."                      Consistent with

such an intent, Wren filed various motions in the circuit court

from 2010 to 2016.     Id., ¶6.         However, Wren did not know that he

could file a habeas petition that could reinstate his appeal

rights.




    2  Attorney Kostich was brought before this court for
professional discipline on four prior occasions, including
during the relevant period here.       See In re Disciplinary
Proceedings Against Kostich (Kostich IV), 2012 WI 118, 344
Wis. 2d 534, 824 N.W.2d 799; In re Disciplinary Proceedings
Against Kostich (Kostich III), 2010 WI 136, 330 Wis. 2d 378, 793
N.W.2d 494; In re Disciplinary Proceedings Against Kostich
(Kostich II), 2005 WI 90, 282 Wis. 2d 206, 700 N.W.2d 763;
Matter of Disciplinary Proceedings Against Kostich (Kostich I),
132 Wis. 2d 227, 391 N.W.2d 208 (1986).       In two of these
instances, Attorney Kostich was disciplined for failing to
communicate with a client or a client's family member or failing
to act with reasonable diligence as are the allegations in this
case. Kostich IV, 344 Wis. 2d 534; Kostich II, 282 Wis. 2d 206.

                                          3
                                                                           No.    2017AP880-W.awb


      ¶53    Wren       testified          that    he    eventually          learned        of    the

mechanism        of     a    habeas        petition      from       his     uncle,         who    was

incarcerated in another institution.                          He further testified that

within "three to four months" of learning this information, he

filed the petition for writ of habeas corpus that is the subject

of   this   case,       seeking       to    reinstate         his    right      to   pursue       the

postconviction relief he thought he would be seeking through

Attorney Kostich.            Specifically, Wren argued that he was denied

the right to a direct appeal and the right to the assistance of

counsel     on        that   appeal,        because      he     was       abandoned         by    his

attorney.

                                                  II

                                                  A

      ¶54    The majority's first error lies in its determination

that Wren's delay in seeking to reinstate his appeal rights was

unreasonable.

      ¶55    In       the    majority's        view,      "the       delay       clock      started

running     no    later      than     2010        or   2011    when       Wren,      by    his    own
admission, learned no appeal had been filed . . . ."                                      Id., ¶21.

After he learned no appeal had been filed, the majority reasons,

"Wren researched and leveraged his available resources to craft

four separate pro se motions relating to his conviction——none

even hinting at the claims raised before us."                             Id.

      ¶56    While the majority places the delay at Wren's feet, it

glosses over the underlying reason that an appeal was never

filed——that           Wren    was     abandoned         by     his       counsel          and    thus
completely       denied      the    right         to   counsel      on    direct      appeal       in

                                                  4
                                                                       No.    2017AP880-W.awb


violation of the Sixth Amendment.                    See State ex rel. Seibert v.

Macht,       2001    WI   67,    ¶10,     244       Wis. 2d 378,         627    N.W.2d 881

(recognizing a constitutional right to counsel on appeal); Page

v.    Frank,    343    F.3d     901,    909    (7th       Cir.   2003)       ("It    is   well

established that a criminal defendant possesses the right to

effective      assistance       of    counsel       through      his   first     appeal     of

right."); Evitts v. Lucey, 469 U.S. 387, 396 (1985).

       ¶57     Indeed, such abandonment by counsel has been described

by the Seventh Circuit as a "per se violation of the sixth

amendment."         Castellanos v. United States, 26 F.3d 717, 718 (7th

Cir. 1994).          "If the defendant told his lawyer to appeal, and

the    lawyer       dropped     the    ball,       then    the    defendant         has   been

deprived, not of effective assistance of counsel, but of any

assistance of counsel on appeal."                   Id.

       ¶58     United States Supreme Court precedent dictates that,

as a constitutional matter, the responsibility for the denial of

counsel on direct appeal is imputed to the State.                            And it is the

State which must bear the cost——dare I say the burden——of the
resulting default.            In Coleman v. Thompson, 501 U.S. 722, 754

(1991), the Court wrote:

       Where a petitioner defaults a claim as a result of the
       denial of the right to effective assistance of
       counsel, the State, which is responsible for the
       denial as a constitutional matter, must bear the cost
       of any resulting default and the harm to state
       interests that federal habeas review entails.
In other words, "if the procedural default is the result of

ineffective assistance of counsel, the Sixth Amendment itself
requires that responsibility for the default be imputed to the


                                               5
                                                                       No.    2017AP880-W.awb


State."          Id.     (quoting     Murray      v.   Carrier,   477      U.S.     478,       488

(1986)).

       ¶59       These    principles        certainly     apply      here.         It    is    the

State's      responsibility           to    provide    Wren    with    counsel,          and    it

utterly      failed         in       that    endeavor.          To     say         that       Wren

"unreasonably" delayed when the delay must be imputed to the

State turns Supreme Court precedent on its head.

       ¶60       Nevertheless, the majority seems unfazed by the Sixth

Amendment        mandate     that      the    responsibility         for     the    delay       be

imputed to the State.                 According to the majority it is the pro

se   defendant,          with    a    second      grade   reading      ability          who    was

abandoned by counsel, that we hold responsible instead.

       ¶61       The majority admonishes that:                "Nothing prevented Wren

from contacting another attorney.                      Nothing prevented Wren from

researching available options to ensure he took advantage of

every possible legal argument he could make."                                Majority op.,

¶23.       Really?         First of all, such statements have no record

support.         But more importantly, is this really the high bar that
we   are     requiring          of   pro     se   litigants     like       Wren——"to          take

advantage of every possible legal argument he could make?"

       ¶62       It is the rare member of the public who even knows of

the existence of a writ of habeas corpus, let alone what it

means and how and when to file such a writ.                            Recall that even

experienced lawyers and courts were unsure how to proceed.                                    This

court      did    not    clarify      the    proper    forum    for    filing       a     habeas

petition until 2014,3 but the majority curiously expects a non-

       See State ex rel. Kyles v. Pollard, 2014 WI 38, ¶3, 354
       3

Wis. 2d 626, 847 N.W.2d 805.
                               6
                                                                          No.    2017AP880-W.awb


lawyer abandoned by counsel to have figured it all out before

then.

       ¶63      Further,       the    majority      wrongly       holds     Wren's       filings

prior to this habeas proceeding against him.                            It relies on the

assertion        that       "Wren    researched       and   leveraged           his    available

resources to craft four separate pro se motions relating to his

conviction——none even hinting at the claims raised before us" to

support the proposition that Wren sat on his rights.                              Id., ¶21.

       ¶64      But Wren is not trained in the law, and he was a mere

15 years old at the time of his crime.                            The record indicates

that       he   read    at    a     second    grade    level.       He      was       completely

abandoned by counsel and left to fend for himself through no

fault of his own.

       ¶65      The majority asserts that it is simply holding Wren to

"the same standard we apply to all pro se litigants."                                 Id., ¶25.

Citing to secondary sources, the majority declares that Wren's

ignorance        of    his    legal     rights      does    not    absolve        him    of   any

obligation.           Id., ¶20.       It cites general maxims regarding pro se
litigants, but its platitudes fail to address a defendant who

has been denied his constitutional right to direct appeal due to

the complete desertion of his counsel.                      See id., ¶25.

       ¶66      Indeed,       the     majority      conflates       a     willing       pro    se

litigant        with    a    criminal        defendant      blamelessly          abandoned     by

counsel.4        If the justice system worked as it should have, Wren


       The majority further conflates the denial of the right to
       4

counsel on direct appeal with a postconviction motion where the
defendant already had the benefit of a direct appeal with the
assistance of counsel. See majority op., ¶27.

                                                7
                                                                   No.    2017AP880-W.awb


would not have been pro se in the first place.                       He was not pro

se by choice, but was forced into an untenable position by his

counsel's complete abandonment.5

      ¶67     In the majority's view, "once Wren no longer had a

lawyer    representing       him,   he   was   not    free    to     do     nothing    to

address the claims he raised in his habeas petition."                         Id., ¶25.

However, Wren did not "do nothing."               He did what he could with

the resources and knowledge he had.6                  The fact that Wren filed

other pro se motions on unrelated issues with the assistance of

other inmates indicates that Wren remained engaged in his case,

not that he had abandoned his quest to reinstate his appeal

rights.

      ¶68     Once Wren learned about petitions for a writ of habeas

corpus, he filed one straight away.                  Indeed, he testified that

he   filed    his   habeas    petition       "three    to    four        months"   after

learning that such a petition was an option available to him.

Contrary to the suggestion of the majority, these facts do not

paint     a   picture   of   a   litigant      "lay[ing]      in     the     weeds    and


      5The United States Supreme Court has "long held that a
lawyer who disregards specific instructions from the defendant
to file a notice of appeal acts in a manner that is
professionally unreasonable."    Roe v. Flores-Ortega, 528 U.S.
470, 477 (2000) (citations omitted).      "This is so because a
defendant who instructs counsel to initiate an appeal reasonably
relies upon counsel to file the necessary notice." Id.
      6See Kyles, 354 Wis. 2d 626, ¶57 (rejecting the State's
argument that Kyles' prior unsuccessful pro se attempts to seek
relief that "were thwarted due to his lack of legal knowledge
and the lower courts' confusion over where and how he should
file his claims" barred a subsequent petition for habeas
corpus).

                                         8
                                                               No.    2017AP880-W.awb


wait[ing] to raise an issue of potential merit."                      See State ex

rel. Washington v. State, 2012 WI App 74, ¶23, 343 Wis. 2d 434,

819 N.W.2d 305; Betts v. Litscher, 241 F.3d 594, 596 (7th Cir.

2001) ("The Constitution does not permit a state to ensnare an

unrepresented defendant in his own errors and thus foreclose

access to counsel.").

     ¶69    I     therefore    conclude      that    Wren's     delay       was     not

unreasonable.       Wren acted promptly upon learning the correct

mechanism for seeking to reinstate his appeal rights and, in any

event, as a constitutional matter, such a delay is properly

imputed to the State in the first instance.7

                                       B

     ¶70    The    majority    also   errs    in    upholding        the   court     of

appeals'     determination     that   the     equities      favor      the       State.

Cautioning      against   "rebalancing . . . the            equities        in     this

court[,]"    the    majority    concludes     that    the     court    of    appeals

"applied a proper standard of law and employed a demonstrated,

rational process to reach a conclusion that a reasonable court
could reach."      Majority op., ¶42.

     ¶71    As a starting point, I do not dispute that the State

is prejudiced by the delay that resulted from Attorney Kostich's


     7 The majority posits that this dissent stands for a rule
that "Wren could wait ten, twenty, or even thirty years to raise
his claim, regardless of any impact on the State's ability to
address the merits of an alleged ineffective assistance claim."
Majority op., ¶31. Nonsense. Contrary to this suggestion, this
dissent addresses only the facts before us, and does not
speculate as to what the result would have been if Wren had
waited a longer period of time before filing his habeas
petition.

                                       9
                                                                   No.   2017AP880-W.awb


abandonment      of     his    client.           If   an    attorney's        lack    of

recollection     of     events    coupled      with   the       destruction    of    the

attorney's files is enough to establish prejudice to the State,

then the unavailability of an attorney for testimony due to the

attorney's death must also be sufficient.                       See Washington, 343

Wis. 2d 434, ¶25.

      ¶72   However, the analysis cannot end there.                       Even if all

elements of laches are proven, a court still must determine, in

its discretion, whether to apply laches and deny the petition.

Id., ¶20.       Laches is, after all, an equitable defense.                     Sawyer

v. Midelfort, 227 Wis. 2d 124, 159, 595 N.W.2d 423 (1999).

      ¶73   In my view, the court of appeals erroneously exercised

its discretion by giving short shrift to the competing prejudice

suffered by Wren.            Although it is true that the State suffers

prejudice by not being able to question Kostich, the State is

not the only party prejudiced by Kostich's absence.                         See Garza

v. Idaho, 139 S. Ct. 738, 744 (2019) (explaining that prejudice

is   presumed    when    a    defendant     is    "left     entirely      without    the
assistance       of     counsel     on      appeal"        or     "when      counsel's

constitutionally deficient performance deprives a defendant of

an appeal that he otherwise would have taken") (citations and

internal quotations omitted).             Certainly Wren would have liked

to have Kostich on the stand just as much, if not more, than the

State.

      ¶74   Given     the     record     indicating        a     complete     lack    of

response from Attorney Kostich to Wren or his family members,
Wren would have likely benefited from having Attorney Kostich on

                                          10
                                                                          No.    2017AP880-W.awb


the stand to confirm that the attorney did nothing to pursue

Wren's appeal.          Indeed, the circuit court found as a fact that

"Attorney       Kostich        intentionally        led    Wren      and        third    parties

acting on his behalf to believe that he would timely complete

the        requirements        necessary        for       the     defendant             to   seek

postconviction        relief,      and    then      he    failed     to     do     so    without

notifying      Wren     or     third    parties     acting      on   his        behalf."       If

Kostich's testimony would confirm the finding that Wren asked

Attorney Kostich to file an appeal and he simply didn't do it,

then Wren is prejudiced to a far greater extent than is the

State.

       ¶75     Giving proper weight to the prejudice to Wren, the

equities clearly favor Wren and militate against the application

of laches.8       Further, it was the State that denied Wren counsel

on    appeal,     and     it    would     be    inequitable          to    now     hold      Wren

accountable for the State's failing.                      I therefore conclude that

the    court     of     appeals        erroneously        exercised        its     discretion

because it did not give the competing prejudice suffered by Wren
the weight it is due.

       ¶76     For the foregoing reasons, I respectfully dissent.

       ¶77     I am authorized to state that Justices REBECCA GRASSL

BRADLEY and REBECCA FRANK DALLET join this dissent.




       In the majority's estimation, this conclusion represents
       8

an impermissible "rebalancing" of the equities.   Majority op.,
¶42 n.29.    Rather than "rebalancing" the scale, this dissent
seeks to make sure that all considerations are properly on the
scale in the first place.

                                               11
    No.   2017AP880-W.awb




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