                                                                2019 WI 106

                  SUPREME COURT             OF    WISCONSIN
CASE NO.:               2017AP1720-CR


COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Appellant,
                             v.
                        Robert James Pope, Jr.,
                                  Defendant-Respondent-Petitioner.

                             REVIEW OF DECISION OF THE COURT OF APPEALS
                             Reported at 385 Wis. 2d 211,923 N.W.2d 177
                                        (2018 – unpublished)

OPINION FILED:          December 17, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          September 6, 2019

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               Jeffrey A. Conen

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



ATTORNEYS:


       For the defendant-respondent-petitioner, there were briefs
filed        by     Andrea   Taylor   Cornwall,   assistant   state   public
defender. There was an oral argument by Andrea Taylor Cornwall.


       For the plaintiff-appellant, there was a brief filed by
Daniel J. O’Brien, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Daniel J. O’Brien.
                                                                        2019 WI 106
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.       2017AP1720-CR
(L.C. No.    1996CF960574)

STATE OF WISCONSIN                             :            IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Appellant,
                                                                      FILED
      v.                                                         DEC 17, 2019

Robert James Pope, Jr.,                                             Sheila T. Reiff
                                                                 Clerk of Supreme Court

             Defendant-Respondent-Petitioner.


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




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


      ¶1     ANNETTE KINGSLAND ZIEGLER, J.            This is a review of an

unpublished opinion of the court of appeals, State v. Pope, No.

2017AP1720-CR,      unpublished   slip   op.   (Wis.       Ct.    App.     Nov.    13,

2018), reversing the Milwaukee County circuit court's1 order.

The circuit court vacated Robert James Pope, Jr.'s ("Pope") 1996

      1The Honorable         Jeffrey A. Conen            presided over the
postconviction motion.        Other circuit court        judges presided over
the trial, sentencing,        and earlier motions         in this case.   But
only the postconviction      order is before this        court on review.
                                                                           No. 2017AP1720-CR



judgment    of      conviction       for       two      counts        of     first-degree

intentional      homicide,     party      to     a   crime,    and     granted       Pope's

postconviction      motion     for    a    new       trial.      The       circuit    court

concluded that a new trial was necessary because there was no

transcript of Pope's 1996 jury trial available.                             The court of

appeals reversed and reinstated Pope's conviction.                           The court of

appeals concluded that Pope was not entitled to a new trial

because he failed to meet his burden to assert a facially valid

claim of error.      We affirm the court of appeals.

    ¶2      Under    State    v.     Perry     and     State     v.    DeLeon,       when    a

transcript is incomplete, a defendant may be entitled to a new

trial, but only after the defendant makes a facially valid claim

of arguably prejudicial error.                 Perry, 136 Wis. 2d 92, 101, 401

N.W.2d 748 (1987); DeLeon, 127 Wis. 2d 74, 377 N.W.2d 635 (Ct.

App. 1985).       This court must decide whether the Perry/DeLeon

procedure   applies     even       when    the       entire    trial       transcript       is

unavailable.      Pope argues that the Perry/DeLeon procedure does

not apply, and that courts should presume prejudice when the
entire transcript is unavailable.                    The State argues that under

the Perry/DeLeon procedure Pope is not entitled to a new trial

because he has not asserted a facially valid claim of arguably

prejudicial error.

    ¶3      We decline to presume prejudice when the entire trial

transcript is unavailable.                We conclude that the Perry/DeLeon

procedure applies whether all or a portion of a transcript is

unavailable.        We also decline to create an exception to the
Perry/DeLeon      procedure     for       Pope       because     the       transcript       is
                                           2
                                                                               No. 2017AP1720-CR



unavailable due to Pope's own delay.                           Thus, we affirm the court

of appeals.


                                 I.    FACTUAL BACKGROUND

        ¶4     On     September        27,       1995,    City     of        Milwaukee      Police

Officers William Walsh and John Krason responded to reports of a

shooting       at   a    house.        When      they     arrived       at    the     house,    the

officers found Anthony Gustafson and Joshua Viehland suffering

from multiple gunshot wounds.                         Both young men were pronounced

dead at the scene of the crime.

        ¶5     On     January     12,        1996,      the    State     filed      a    criminal

complaint against Pope, charging him with two counts of first-

degree       intentional       homicide          while    armed,       party     to     a   crime,

contrary to Wis. Stat. §§ 940.01(1), 939.63, and 939.05 (1995-

96).2         Since      there    is        no   trial     transcript          available,       the

following       allegations           are    drawn      from    the     criminal        complaint

only.        The complaint alleged that Pope, Pope's girlfriend J.R.,

I.G., D.K., and D.R. all plotted to kill Joshua Viehland because
Viehland threatened their friend.                        According to J.R.'s statement

to   officers,          Pope   told     her      that     he    would    protect        her    from

Viehland.        According to I.G.'s statement to officers, the five

met at a house to discuss Viehland's threats.                                  J.R. told them

all that if they did not shoot Viehland and Jessie Letendre, she

and Pope would do it.                 The complaint alleges that the five made


       Where relevant, we reference the 1995-96 version of the
        2

Wisconsin Statutes.     All other references to the Wisconsin
Statutes are to the 2015-16 version unless otherwise indicated.

                                                  3
                                                                      No. 2017AP1720-CR



a plan to call Letendre and have Letendre and Viehland meet them

at the house.         I.G.'s statement to police was that D.R. called

Letendre from a phone booth.            D.R. kept talking to Letendre at

the phone booth and J.R. drove Pope, I.G., and D.K. to the

house.

       ¶6    Pope, I.G., and D.K. hid in the house, and J.R. waited

in a car down the hill.           At the house, Pope asked what the guys

they were going to kill looked like.                    He had never met them.

D.K. told Pope that they were waiting for a bald, white man with

glasses.     The complaint alleges that two people approached the

house.      As   it    turned   out,   these      two    men   were    Viehland    and

Gustafson, not Letendre.           Pope rounded a corner and fired his

gun at them.          Pope's gun jammed and then D.K. started firing

shots.      D.K. stated that he shot Viehland, and then shot the

other man, not knowing who he was.                  I.G. stated that when he

rounded the corner, he saw a young man lying on the floor.                          He

did not recognize him.          He then saw another man fall.                I.G. saw

this man was Viehland, and then shot him in the head.                            I.G.,
D.K., and Pope ran to the car and J.R. drove them away.

       ¶7    J.R. stated that Pope sat in the front seat with her

and that he was excited and breathing heavily.                    He told her that

they had shot two men, and he thought they were dead.                       Pope told

J.R. that he had fired one shot into a man's chest and then his

gun jammed; that he did not care who died because he did not

know   them.      Pope    threw    a   gun   in    the    river    and     the   group

dispersed, congratulating one another.


                                         4
                                                                           No. 2017AP1720-CR



                            II.      PROCEDURAL POSTURE

     ¶8     The      charges       against   Pope     proceeded           to    trial.     On

May 31,    1996,     the    jury     returned       its    verdict        and   found    Pope

guilty of two counts of first-degree intentional homicide as a

party to the crime.            But the jury did not find that the State

proved Pope committed either offense while using a dangerous

weapon.

     ¶9     On July 2, 1996, the circuit court sentenced Pope to

life imprisonment without parole.                   That same day, Pope and his

trial counsel signed an SM-33 form.3                       The form indicated that

Pope intended to pursue postconviction relief and that counsel

would     timely     file      a    formal       notice       of     intent      to    pursue

postconviction relief within 20 days——or by July 22, 1996.                                The

form also indicated that Pope knew the notice had to be filed

within 20 days.        If trial counsel had actually filed the notice

of intent to pursue postconviction relief, it would have set in

motion    the   procedures         for    obtaining       a     trial     transcript      and

appointment     of    appellate          counsel.         See      Wis.   Stat.       § (Rule)
809.30(2)(c)-(h) (1995-96).4               But trial counsel did not file that


     3 The SM-33 form has since been replaced by CR-233 Notice of
Right to Seek Postconviction Relief adopted by the Wisconsin
Judicial Conference.
     4   Rule 809.30(2) (1995-96) provided, as follows:

          (2) Appeal    or   postconviction   motion   by
     defendant.   (a) A defendant seeking postconviction
     relief in a felony case shall comply with this
     section.    Counsel representing the defendant at
     sentencing shall continue representation by filing a
     notice under par. (b) if the defendant desires to
                                             5
                                             No. 2017AP1720-CR




pursue postconviction relief unless sooner discharged
by the defendant or by the trial court.

     (b) Within 20 days of the date of sentencing,
the defendant shall file in the trial court and serve
on the district attorney a notice of intent to pursue
postconviction relief. . . .

     (c) Within 5 days after a notice under par. (b)
is filed, the clerk shall:

     1. If the defendant requests representation by
the   state    public   defender  for   purposes   of
postconviction relief, send to the state public
defender's appellate intake office a copy of the
notice, a copy of the judgment or order specified in
the notice, a list of the court reporters for each
proceeding in the action in which the judgment or
order was entered and a list of those proceedings in
which a transcript has been filed in the court record
at the request of trial counsel.

    . . .

     (e) Within 30 days after the filing of a notice
under par. (b) requesting representation by the state
public defender for purposes of postconviction relief,
the state public defender shall appoint counsel for
the defendant and order a transcript of the reporter's
notes, except that if the defendant's indigency must
first be determined or redetermined, the state public
defender shall do so, appoint counsel and order
transcripts within 50 days after the notice under par.
(b) is filed.

     (f) A     defendant   who    does not request
representation by the state public defender for
purposes of postconviction relief shall order a
transcript of the reporter's notes within 30 days
after filing a notice under par. (b).

    . . .

     (g) The court reporter shall file the transcript
with the trial court and serve a copy of the
transcript on the defendant within 60 days of the
ordering of the transcript. Within 20 days of the
                          6
                                                                             No. 2017AP1720-CR



notice of intent to pursue postconviction relief, as required by

Wis. Stat. § 809.30(2)(b), in order to commence a direct appeal.

As a result, Pope's direct appeal rights expired and no appeal

was initiated.

      ¶10     On       September    16,       1997,   about       14   months     after   the

filing deadline, Pope finally made his first effort to correct

trial counsel's error.              He filed a pro se motion to extend the

deadline       for       filing         the    notice        of     intent       to   pursue

postconviction relief in the court of appeals.                           Pope argued that

his   trial    counsel       had    failed      to    file    the      notice    of   intent,

despite Pope's instructions that he file it.                            Pope attached to

his   motion       a    letter     he    had    received      from     the    State   Public

Defender's office that explained,

      When [a Notice of Intent] is timely filed, appellate
      counsel is appointed, transcripts are ordered and the
      appeal proceeds in the normal fashion. If the Notice
      of Intent is not filed within 20 days of sentencing,
      it is necessary to ask the court of appeals to extend
      the time by filing a motion.
The letter also explained that the State Public Defender had "no

idea why the Notice was not timely filed and therefore you are

going to have to explain the reason to the court in a motion to

extend   the       time    for     filing      the    Notice."          The     letter    also

instructed Pope to send any order granting the extension to

their Appellate Intake office.


      ordering of a transcript of postconviction proceedings
      brought under sub. (2) (h), the court reporter shall
      file the original with the trial court and serve a
      copy of that transcript on the defendant.

                                                7
                                                                No. 2017AP1720-CR



      ¶11    But,   on    September 25,     1997,   the   court    of   appeals

denied Pope's motion.        It reasoned:

      Even assuming the truth of Pope's representations
      regarding the performance of trial counsel, Pope has
      failed to provide the court with a sufficient
      explanation as to why, when counsel failed to initiate
      postconviction proceedings timely, he did not attempt
      to commence postconviction proceedings on his own.
      The court can see nothing in the motion that would
      warrant   a   fifteen-month[5] delay   in   commencing
      postconviction proceedings.
      ¶12    Thus, the court of appeals concluded that Pope had not
shown good cause for his delay in bringing the motion.                         It

denied the motion.          Importantly, this 1997 court of appeals'

decision is not before this court for review.             Rather, we review

its 2018 decision concluding that Pope is not entitled to a new

trial because he failed to assert a facially valid claim of

error.      Since 1997 Pope has made multiple attempts to reinstate

his   appeal    rights.      The   procedural   history    of     his   case   is

lengthy.     But it is Pope's inaction for 14 months from July 1996

to September 1997 that partially controls the outcome in this

case——both then in September 1997, and now in 2019.
      ¶13    On October 15, 1997, Pope filed a pro se Wis. Stat.

§ 974.06 motion to reinstate his rights to appeal in the circuit

court, arguing that trial counsel was ineffective for not filing



      5The court of appeals has repeatedly referred to a 15-month
delay in this case. That is not accurate. The deadline to file
the notice of intent was July 22, 1996. Pope filed his pro se
motion on September 16, 1997——just under 14 months later.     But
the difference between 14 and 15 months delay is immaterial to
our analysis in this case.

                                       8
                                                              No. 2017AP1720-CR



a notice of intent to pursue postconviction relief.                The circuit

court denied the motion, citing the court of appeals' September

1997 decision.       On November 5, 1997, Pope filed a notice of

appeal.     As part of that appeal, Pope filed a statement on

transcript, which the court of appeals construed as a motion to

waive transcript fees.        The court of appeals remanded to the

circuit court to determine whether Pope was entitled to a waiver

of transcript fees under Wis. Stat. § 814.29(1).6                  The circuit

court    issued   findings   of   fact    and   conclusions   of    law.    It

concluded that Pope had not made a claim for relief and was not

entitled to free transcripts.            On December 23, 1997, the court

of appeals noted that Pope had not yet filed a statement on

transcript as required under Wis. Stat. §§ (Rules) 809.11(4) and

809.16,7 and ordered him to do so.              On January 2, 1998, Pope

     6 Wisconsin     Stat.   § 814.29(1)(a)       (1995-96)     provided    as
follows:

          Any person may commence, prosecute or defend any
     action or proceeding in any court, or any writ of
     error or appeal therein, without being required to
     give security for costs or to pay any service or fee,
     upon order of the court based on a finding that
     because of poverty the person is unable to pay the
     costs of the action or proceeding, or any writ or
     error or appeal therein, or to give security for those
     costs.
     7   Rule 809.11(4) (1995-96) provided as follows:

          (4) Statement on transcript.       The appellant
     shall file with the clerk of the court of appeals
     within 10 days of the filing of the notice of appeal
     in the trial court, a statement that a transcript is
     not necessary for prosecution of the appeal or a
     statement by the court reporter that the transcript or
     designated   portions  thereof   have  been   ordered,
                                     9
                                                                No. 2017AP1720-CR



filed    a   statement   on    transcript,        asserting    that     the    only

transcript      necessary     for   his     appeal     was     the    sentencing

transcript.

    ¶14      On March 5, 1999, the court of appeals affirmed the

circuit court's order denying Pope's Wis. Stat. § 974.06 motion

to reinstate his right to appeal.                 The court of appeals once

again    concluded    that    "[b]ecause    Pope     failed    to    provide    any

reason    for   his   fifteen-month       delay    before     seeking    § 974.06

relief, he waived his right to appeal . . . ."                 Then Pope filed

a petition for review with this court.                On March 10, 1999, we


    arrangements have been made for the payment by the
    appellant of the cost of the original transcript and
    all copies for other parties, the date on which the
    transcript was ordered and arrangements made for
    payment, and the date on which the transcript is due.
    The appellant shall file a copy of the statement on
    transcript with the clerk of the trial court within 10
    days of the filing of the notice of appeal.

Rule 809.16(1) (1995-96) provided as follows:

         Within 10 days of the filing of the notice of
    appeal, the appellant shall make arrangements with the
    reporter for the preparation of a transcript of the
    reporter's notes of the proceedings and service of
    copies and file in the court a designation of the
    portions of the reporter's notes that have been
    ordered. Any other party may file within 10 days of
    service of the appellant's notice, a designation of
    additional portions to be included in the transcript.
    The appellant shall file within 10 days of the service
    of the other party's designation the          statement
    required by s. 809.11(4) covering the other party's
    designations.   If the appellant fails or refuses to
    order the designated portions, the other party may
    order the portions or file a motion with the trial
    court for an order requiring the appellant to do so.

                                      10
                                                                         No. 2017AP1720-CR



denied       it    as    untimely.         We    reasoned      that      the     petition

essentially asked this court to review the court of appeals'

September 1997 decision, meaning it should have been filed back

in 1997.

       ¶15     Four years later, on June 20, 2003, Pope filed a pro

se    motion      to    extend   the   time     for   filing    his      postconviction

motion in the court of appeals.                 On July 11, 2003, the court of

appeals      denied      the     motion,   concluding       that        the    issue   was

"settled and will not be relitigated."

       ¶16     Eleven years later, on July 21, 2014, Pope filed a

Knight8 petition for a writ of habeas corpus.                   He argued that his

direct appeal rights should be reinstated because trial counsel

was     ineffective       for    not   filing     a    notice      of     intent.       On

November 13, 2015, the court of appeals remanded to the circuit

court for fact-finding.             The circuit court appointed counsel for

Pope.       After a hearing, the circuit court issued findings of

fact on June 7 and 28, 2016.               The circuit court found that: (1)

Pope was represented at sentencing by counsel; (2) Pope and his
counsel filed the SM-33 form on July 2, 1996, indicating Pope's

intent to pursue postconviction relief; (3) his counsel did not

file the notice of intent; (4) his counsel's practice was to

file a defendant's notice of intent personally or via mail; (5)

Pope wrote two letters to his counsel on July 8 and 18, 1996,

regarding the status of his appeal and transcripts, of which his

counsel had no memory; (6) his counsel was publicly reprimanded

       8   State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).

                                           11
                                                                                No. 2017AP1720-CR



for     his    representation          of    clients          in     other      postconviction

matters; and (7) Pope had been attempting pro se to get his

appeal rights reinstated since 1996.9                         Additionally, the circuit

court found that: (1) Pope's testimony regarding his efforts to

reach his counsel was credible; (2) his counsel did not follow

up    with    Pope    or    preserve        his    files;          and    (3)   there     was   no

evidence that his counsel filed a notice of intent.

       ¶17     Following the circuit court's findings, on August 16,

2016,       Pope    and     the   State       filed       a    joint        stipulation         for

reinstatement of Pope's direct appeal deadlines and dismissal of

the    habeas       petition.       On      September         29,    2016,      based     on    the

parties' stipulation, the court of appeals ordered that Pope's

direct      appeal    rights      be    reinstated        and       dismissed       the   habeas

petition.          On October 4, 2016, 20 years after his conviction,

Pope filed a notice of intent to pursue postconviction relief in

the circuit court.             He also ordered trial transcripts for the

first time.          But the court reporters no longer had any notes

from       Pope's    1996    jury      trial.        In       the        end,   Pope    obtained




       While some might argue that this factual finding should
       9

change the outcome of our review here, the circuit court's
factual finding cannot change the law of Pope's case. In 1997,
the court of appeals concluded that Pope delayed in bringing his
motion to extend the deadline to file a notice of intent and he
failed to show good cause for his delay.

                                              12
                                                                  No. 2017AP1720-CR



transcripts of his preliminary hearing and sentencing only.                    The

transcript of Pope's 1996 jury trial is now unavailable.10

     ¶18       On March 7, 2017, Pope filed a Wis. Stat. § (Rule)

809.30 postconviction motion for a new trial.                 Pope argued that

the lack of a trial transcript denied him his constitutional and

statutory right to appeal his convictions and denied him due

process    under   the      Fourteenth   Amendment    to    the   United   States

Constitution.          The State opposed the motion and argued that,

under Perry, Pope was not entitled to a new trial because he

failed    to    make    a   claim   of   error.      On    July 19,    2017,   the

postconviction court held a hearing and ordered a new trial.                    It

issued a written order two days later.            The postconviction court

concluded that, without even a portion of the trial transcript,

it would be impossible to make a claim of error.                        Thus, it

concluded there was "no other option but to order a new trial in



     10Pursuant to Supreme Court Rule 72.01(47), court reporters
are required to keep their notes for 10 years after a court
proceeding. Pope did not order a trial transcript until over 20
years after his trial. Thus, by the time he ordered the trial
transcript, it was unavailable.    Supreme Court Rule 72.01(47)
provides as follows:

     SCR 72.01 Retention of original record.

          Except as provided in SCR 72.03 to 72.05, the
     original paper records of any court shall be retained
     in the custody of the court for the following minimum
     time periods: . . .

          (47) Court    reporter   notes. Verbatim   steno-
     graphic, shorthand, audio or video notes produced by a
     court reporter or any other verbatim record of in-
     court proceedings: 10 years after the hearing.

                                         13
                                                                   No. 2017AP1720-CR



this case."          The court of appeals applied Perry and reversed.

Pope, No. 2017AP1720-CR, unpublished slip op.                      It concluded:

"Pope had the initial burden in his postconviction motion of

claiming some facially valid claim of error.                    He failed to do

so."    Id., ¶38.

       ¶19    Pope filed a petition for review in this court.                    We

granted the petition.


                             III.   STANDARD OF REVIEW

       ¶20     The circuit court's decision whether to grant a new

trial due to lack of transcript is discretionary.                      Perry, 136

Wis. 2d at 109.          It will be upheld if "due consideration is

given to the facts then apparent, including the nature of the

claimed error and the colorable need for the missing portion——

and    to    the    underlying      right    under     our   constitution   to   an

appeal."           Id.   A     circuit      court    erroneously   exercises     its

discretion if it commits an error of law.                    State v. Raye, 2005

WI 68, ¶16, 281 Wis. 2d 339, 697 N.W.2d 407.


                                    IV.     ANALYSIS

                          A.    The Right To An Appeal

       ¶21    The Wisconsin Constitution guarantees the right to an

appeal.      Pursuant to Article I, Section 21(1) of the Wisconsin

Constitution, "Writs of error shall never be prohibited, and

shall be issued by courts as the legislature designates by law."

See also Perry, 136 Wis. 2d at 98.                   The legislature designated
the court of appeals as the court where the right to appeal


                                            14
                                                                    No. 2017AP1720-CR



should be exercised.           See Wis. Stat. § 808.02 ("A writ of error

may be sought in the court of appeals.")                     Regarding criminal

appeals, this court has said, "Basic to a criminal appeal is the

statement of the errors that an aggrieved defendant alleges were

committed in the course of the trial and a showing that such

errors (or error) were prejudicial."               Perry, 136 Wis. 2d at 99.

Accordingly,       when    a     defendant       asserts     that     an   arguably

prejudicial     error     occurred      at    trial,   the     defendant     has    a

constitutional right to assert that prejudicial error on appeal.

    ¶22     A   defendant's           argument     regarding        such   arguably

prejudicial trial error is based upon and identified in the

trial transcript.         Thus, a transcript of the trial proceedings

is crucial to such an appeal.

    In order that the right [to an appeal] be meaningful,
    our law requires that a defendant be furnished a full
    transcript——or a functionally equivalent substitute
    that, in a criminal case, beyond a reasonable doubt,
    portrays in a way that is meaningful to the particular
    appeal exactly what happened in the course of trial.
Perry, 136 Wis. 2d at 99.

    ¶23     Because a transcript is crucial to the right to an

appeal,     Wisconsin     courts      provide     additional       protection      for

appellants when they do not have a complete transcript.                            Id.

When a trial transcript is incomplete, the appellant need only

assert a facially valid claim of arguably prejudicial error in

the unavailable transcript.             Id. at 108-09.       The appellant need

not actually prove a claim of error.                   Id.     Rather, once the

appellant    has    asserted      a    facially    valid     claim    of   arguably
prejudicial     error,     the     appellant      triggers     a     procedure     to

                                         15
                                                                         No. 2017AP1720-CR



reconstruct the record.            Id.    If reconstruction is impossible,

then the appellant gets a new trial.                         Id.        We discuss that

procedure in detail below.

                       B.    The Perry/DeLeon Procedure

      ¶24   This     court's       decision       in    Perry        sets    forth        the

procedure that parties and the court must follow when a record

is   incomplete     during     post-trial       proceedings.             Perry    is     best

understood in conjunction with its predecessor, State v. DeLeon.

      ¶25   In      DeLeon     a   defendant          sought       reversal       of     his

conviction    for    first-degree        sexual       assault      because      the    court

reporter     somehow        lost   approximately         15        minutes       of    trial

testimony.       DeLeon, 127 Wis. 2d at 76.                  His trial was to the

court, not a jury.          The circuit court denied DeLeon's motion for

a new trial.        Id.     It concluded that, rather than a new trial,

the proper remedy was to recall the witnesses whose testimony

was lost and reconstruct the record.                   Id.     The court of appeals

affirmed.     Id.    It also set forth the procedure Wisconsin courts

should follow in similar situations.
      ¶26   First,     the    appellant        must    allege       a    facially      valid

claim of arguably prejudicial error.                     The appellant need not

demonstrate      actual      prejudice,    but        nonetheless        must     make    an

adequate showing.

           Before any inquiry concerning missing notes takes
      place, common sense demands that the appellant claim
      some reviewable error occurred during the missing
      portion of the trial. Obviously, the trial court need
      not conduct an inquiry if the appellant has no
      intention of alleging error in the missing portion of
      the proceedings.      If, however, the trial court

                                          16
                                                                       No. 2017AP1720-CR


      determines that the appellant has at least a facially
      valid claim of error, the inquiry should take place.
DeLeon, 127 Wis. 2d at 80 (emphasis added).                         If this prejudice

is not so demonstrated, then the analysis ends.

      ¶27    If,    however,      the      circuit   court    concludes          that   the

defendant has demonstrated a facially valid claim of arguably

prejudicial       error,   then      the    court    must    proceed       to    make   the

discretionary determination of whether the missing record can be

reconstructed.       DeLeon, 127 Wis. 2d at 81.                 This determination

is    case-specific.         Id.           The    circuit     court        utilizes     its

discretion to determine what information may be relevant to the

issue at hand, but some considerations might include "the length

of the missing transcript, the availability of witnesses and

trial counsel, and the amount of time which had elapsed . . . ."

Id.    If the circuit court determines that record reconstruction

is impossible, then it must order a new trial.                             Id.     If the

circuit court determines that record reconstruction is possible,

then the appellant bears the burden to reconstruct the record.

Id.
      ¶28   When    record     reconstruction         is    possible,       the   circuit

court proceeds to determine what the record would have been.

For example, the appellant may draft an affidavit describing the

missing record.        Id.     The respondent may then file objections,

propose amendments, or approve the affidavit.                        Id.     The parties

may also draft and file a joint statement.                     Id.     If the parties

dispute     the    record,   then       the      circuit    court    may     attempt     to
resolve the dispute.           Id.      The circuit court may not speculate


                                            17
                                                                             No. 2017AP1720-CR



regarding the contents of the original record.                           Id.    Rather, the

circuit court must try to establish what the record actually

was, relying on the parties' submissions, its own recollection,

hearings,      counsel,       and    other       sources.       Id.    at     81-82.         When

reconstructing the record, the level of proof required is the

same as at trial.             Id. at 82.          That means, in a criminal case,

the circuit court "must be satisfied beyond a reasonable doubt

that    the    missing       testimony      has    been       properly       reconstructed."

Id.     If the circuit court is so satisfied beyond a reasonable

doubt, then the record is reconstructed accordingly.                                  Id.      If

not, then the circuit court must order a new trial.                                 Id.     Thus,

the    court    of    appeals       in    DeLeon       established       a    procedure      for

record reconstruction.

       ¶29     In    Perry    this       court    was    called       upon     to    determine

whether the DeLeon procedure should apply when portions of the

court reporter's trial notes were destroyed in the mail.                                   Perry,

136 Wis. 2d at 95-96.                Perry, unlike DeLeon, had a trial to a

jury.     Id. at 95.          About one-eighth of the trial transcript was
lost,    including         the     testimony      of    two    witnesses        and       closing

arguments.          Id. at 107.          Perry moved for a new trial, arguing

that the transcript deficiency alone denied him his right to

appeal.        Id.    at     96.      The    circuit      court    denied       the       motion,

concluding that the available portions of the transcript were

sufficient to proceed on appeal.                       Id. at 96-97.           The court of

appeals        reversed,           concluding          that     the      transcript          was

insufficient and declining to follow the DeLeon procedure.                                   Id.
at 97, 102.          The court of appeals concluded that DeLeon should
                                              18
                                                                 No. 2017AP1720-CR



be limited to its facts and that a remand to the trial court to

undergo the DeLeon procedure would serve no purpose.                      Id. at

102.    On appeal to this court, we affirmed the court of appeals'

determination, but clarified that the DeLeon procedure is not

limited to its facts and indeed must be followed.                        Id.   We

stated, "[T]he essence of DeLeon is its methodology, which is as

appropriate for this case as it was for DeLeon."                 Id.     Thus, in

Perry, we concluded that the DeLeon procedure "can be applied to

a broad spectrum of cases."         Id. at 102-03.       The outcomes of the

procedure may vary; whether the record can be reconstructed is

an inquiry that depends on the facts of each case.                       But the

Perry/DeLeon procedure guides each inquiry.

       ¶30   Thus, in Perry we concluded that the procedure first

established in DeLeon would be applicable "to a broad spectrum

of cases."         Regarding its threshold requirement, we emphasized

that, while the appellant need not demonstrate actual prejudice,

the appellant must allege a facially valid claim of arguably

prejudicial error in order to trigger the reconstruction portion
of the Perry/DeLeon procedure.              Perry, 136 Wis. 2d at 108-09.

More than 30 years later, we are called upon to now decide

whether this procedure applies when the entire trial transcript

is unavailable.

                   C.   The Perry/DeLeon Procedure Applies.

       ¶31   Pope argues that the Perry/DeLeon procedure should not

apply to this case because the unavailability of the entire

trial   transcript       prevents   appellate    counsel   from     determining
whether      any    arguably   prejudicial      errors   exist     for    appeal.
                                       19
                                                                        No. 2017AP1720-CR



Instead, Pope argues that courts should here presume prejudice

because the entire trial transcript is unavailable.                            The State

argues that the Perry/DeLeon procedure applies and Pope must

first    assert    a    facially     valid       claim   of    arguably    prejudicial

error.      We     agree     with    the    State.       We     decline    to    presume

prejudice when the entire trial transcript is unavailable.                               We

conclude that the Perry/DeLeon procedure applies to a "broad

spectrum of cases" including when the entire trial transcript is

unavailable.       This conclusion is consistent with both Perry and

DeLeon.      We    find      additional     support      for    this    conclusion       in

federal law and appellate procedure generally.

    ¶32     Perry made clear that the Perry/DeLeon procedure is

broadly applicable.             Perry, 136 Wis. 2d at 102-03.                    It also

emphasized       that    the    appellant's        initial     burden     to    assert   a

facially valid claim of arguably prejudicial error was necessary

to trigger that procedure.               Id. at 108.          Additionally, for the

court of appeals in DeLeon, putting the initial burden on the

appellant was a matter of "common sense."                       DeLeon, 127 Wis. 2d
at 80.      We agree and conclude that "common sense demands that

the appellant claim some reviewable error occurred" whether a

portion or an entire transcript is missing.                      Id.    Logic dictates

that when the defendant claims an arguably prejudicial error

occurred     in     the      missing       trial     transcript,        that     missing

transcript is critical to the defendant's argument, regardless

of the missing portion's size——large, small, or all.

    ¶33     There       is     nothing     exceptional         about    requiring    the
appellant     to       assert    a   facially        valid      claim     of    arguably
                                            20
                                                                    No. 2017AP1720-CR



prejudicial error.      This is consistent with appellate procedure

generally.     All appellants must make a valid claim for appeal at

some point.      Put simply, there is no appeal without a claim.

Additionally, under the        Perry/DeLeon           procedure, the appellant

does not need to actually prove a claim of error.                         The circuit

court requires only an assertion of a facially valid claim in

order to trigger record reconstruction or, potentially, a new

trial.     Thus, rather than setting an exceptional burden, the

Perry/DeLeon    procedure     merely      requires      some   arguable       showing

before the efforts of reconstruction are undertaken.                           If an

adequate   record    cannot    be    so     reconstructed,      then,       unlike    a

traditional    appellant     who    would      need    to   prove   the     right    to

relief on the merits of the argument presented, the appellant

with an incomplete transcript would receive the requested relief

based upon the missing record.

    ¶34    Nor is there anything extraordinary about placing the

initial burden to present facts on the appellant or, at the

reconstruction      stage,    requiring        the    defendant      to     take    the
laboring oar even when the entire transcript is unavailable.                         In

fact, federal courts also place the burden to reconstruct the

record on the appellant.            Federal Rule of Appellate Procedure

10(c) establishes the procedure for reconstructing a record when

a transcript is unavailable:

    If   the  transcript  of   a   hearing  or   trial  is
    unavailable, the appellant may prepare a statement of
    the evidence or proceedings from the best available
    means, including the appellant's recollection.     The
    statement must be served on the appellee, who may
    serve objections or proposed amendments within 14 days

                                          21
                                                               No. 2017AP1720-CR


      after being served. The statement and any objections
      or proposed amendments must then be submitted to the
      district court for settlement or approval. As settled
      and approved, the statement must be included by the
      district clerk in the record on appeal.
Fed. R. App. P. 10(c).          This procedure is broadly applicable in

federal appeals, and it is very similar to the                   Perry/DeLeon

procedure.

      ¶35    Indeed, the court of appeals in DeLeon discussed Rule

10   prior    to   concluding    that     Wisconsin   courts   should    use   a

similar procedure.      The court of appeals summarized Rule 10 and
a case applying it.        DeLeon, 127 Wis. 2d at 78-80.                It then

stated:

           Using the Federal Rules of Appellate Procedure
      and the Cole[11] case as guides, we now develop the
      procedure   that   trial  courts   should   follow in
      Wisconsin.   Although the appeal is a criminal case,
      the same procedure will apply in civil cases.

           Before any inquiry concerning missing notes takes
      place, common sense demands that the appellant claim
      some reviewable error occurred during the missing
      portion of the trial.
Id. at 80.         Thus, from its inception, Wisconsin courts have

considered the Perry/DeLeon procedure, including its threshold

claim-of-error requirement, to be consistent with the federal

lead.       We agree, and we will continue to follow the federal

lead.

      ¶36    Pope's   request      that      we   presume   prejudice     could

actually provide the most relief to offenders who are serving

the longest sentences.          In Wisconsin, court reporters need only


      11   Cole v. United States, 478 A.2d 277 (D.C. 1984).

                                        22
                                                                    No. 2017AP1720-CR



maintain their notes for ten years.                See SCR 72.01(47).          If we

were    to    presume     prejudice       when    the    entire     transcript       is

unavailable, there would be nothing to stop criminal defendants

from sitting on their hands for ten years, and then claiming

that they told trial counsel to file a notice of intent.                       Under

Pope's proposed rule, criminal defendants would automatically be

entitled to a new trial after ten years regardless of their

sentence because their transcripts would be unavailable if not

previously requested.          We decline to provide such relief to

those who might unduly benefit from sitting on their right to

request      appellate    relief        contemporaneously     (with      the      best

available     evidence,    testimony,       and    transcripts),      and    instead

wait until no transcript is available.

       ¶37    Pope argues that requiring appellate counsel to assert

a facially valid claim of arguably prejudicial error conflicts

with    counsel's    ethical      and    statutory      obligations.        See     SCR

20:3.1(a)(1) (prohibiting lawyers from "knowingly advanc[ing] a

claim or defense that is unwarranted"); and Wis. Stat. § (Rule)
809.32 (requiring appellate counsel who concludes that a direct

appeal would be frivolous and without merit, upon the client's

request, to file a no-merit report identifying each potential

claim   and    why   it   lacks    merit).        We    disagree;    there     is   no

conflict.      The Perry/DeLeon procedure requires a facially valid

claim in order to proceed.              It does not require counsel to do

anything unethical or illegal.             Rather, the Perry/Leon procedure

is consistent with counsel's obligations.                 Under each framework,
if there is no valid claim, then the litigation must end.
                                          23
                                                                         No. 2017AP1720-CR



    ¶38        We   therefore    decline       to     presume    prejudice      when    the

entire trial transcript is unavailable.                         We conclude that the

Perry/DeLeon        procedure        applies      even    when     the      entire   trial

transcript is unavailable.                  This conclusion is consistent with

Perry        and    DeLeon,     federal        law,      and    appellate       procedure

generally.

        D.    The Transcript Is Unavailable Due To Pope's Delay.

    ¶39        Pope argues that we should carve out an exception to

the Perry/DeLeon threshold requirement that the appellant assert

a facially valid claim of arguably prejudicial error when the

entire       transcript   is    unavailable.             We    decline   to    create   an

exception to the Perry/DeLeon procedure for Pope because, as we

explain below, the transcript is unavailable due to his delay.

    ¶40        To begin, creating an exception to the Perry/DeLeon

procedure when the lack of transcript is attributable to the

appellant is inconsistent with Perry and DeLeon.                              Both cases

were premised on the fact that the defendants were not at fault

for the lost transcript.              In DeLeon the court reporter lost some
of her trial notes.            127 Wis. 2d at 76.               The court of appeals

concluded, "Where, as here, a portion of the record is lost

through no fault of the aggrieved party, that party should not

be made to bear the burden of this loss."                        Id. at 77 (emphasis

added).        And in Perry, portions of the court reporter's trial

notes were lost in the mail.                   136 Wis. 2d at 96.             Again, the

notes were lost "through no fault of the aggrieved party," the

appellant.          DeLeon,    127    Wis.     2d   at    77.     Furthermore,       Perry
"ha[d]       done   everything       that    reasonably        could   be    expected   in
                                             24
                                                                         No. 2017AP1720-CR



order to perfect his appeal."               Perry, 136 Wis. 2d at 108.                  Thus,

neither case supports the proposition that an appellant should

automatically get a new trial when the appellant caused the

transcript to be unavailable on appeal.                     Those cases simply did

not contemplate the situation presented here.                            Nor can it be

said that Pope "has done everything that reasonably could be

expected in order to perfect his appeal."                    Id.

       ¶41   In     this     case,    the        appellant,        Pope,     caused       the

transcript    to     be    unavailable      because     he    sat     on    his    rights.

First, Pope sat on his rights for 14 months after the notice of

intent was due.           Pope knew that his notice of intent was due on

July 22, 1996.        On July 2, 1996, the day of Pope's sentencing,

he and his counsel signed the SM-33 form, which indicated that

Pope knew the notice of intent had to be filed within 20 days.

Additionally, the postconviction court found that Pope wrote two

letters to counsel on July 8 and 18, 1996, regarding the status

of his appeal and transcripts.                   Pope knew that the deadline to

file his notice of intent was approaching.
       ¶42   That    deadline,       July    22,     1996,    came       and     went    and

counsel did not file the notice of intent.                           Pope could have

immediately moved for an extension of the deadline.                            But he did

not.     Rather,     Pope     sat    on   his     rights    for     14     months,      until

September 1997.           Even then, Pope could have argued that he had

good cause for his 14-month delay.                  But he did not.              Thus, the

court   of   appeals       denied    his    motion     to     extend       the    deadline

because he did not show good cause.                 It concluded:


                                            25
                                                                        No. 2017AP1720-CR


      Even assuming the truth of Pope's representations
      regarding the performance of trial counsel, Pope has
      failed to provide the court with a sufficient
      explanation as to why, when counsel failed to initiate
      postconviction proceedings timely, he did not attempt
      to commence postconviction proceedings on his own.
The court of appeals denied Pope's motion because he delayed 14

months     in    bringing      it    and   provided       no   justification.       That

decision became the law of Pope's case.

      ¶43       Subsequent decisions of the circuit court, court of

appeals,        and   even   this     court,      cited    the   court    of    appeals'
September 1997 decision to repeatedly deny Pope's motions to

extend the deadline or reinstate his appeal rights.                          Thus, over

20 years went by and Pope never filed a notice of intent.                             If

Pope had filed a notice of intent, it would have triggered the

statutory       procedure      for    ordering     a   transcript      and   appointing

appellate counsel.           See supra note 4 (quoting portions of Wis.

Stat. § (Rule) 809.30(2) (1995-96)).                   But Pope could not file a

notice of intent because no court granted his motions to extend

the deadline or reinstate his appeal rights due to his 14-month

delay.

      ¶44       Second, Pope failed to order the transcript on his own

at   any    point     during    the    ten   years     after     his   trial.      Court

reporters in Wisconsin are required to keep their trial notes

for only ten years.                 See SCR 72.01(47) (court reporter notes

"shall be retained" for "10 years after the hearing").                            Pope's

trial transcript is unavailable because Pope did not order it at

any point during the ten-year period when the court reporter was
required to keep it pursuant to SCR 72.01(47).                         After those ten


                                             26
                                                                      No. 2017AP1720-CR



years passed, the court reporter was not required to and did

not,    in    fact,     keep     a    copy   of    the   trial     transcript.       The

transcript is unavailable in this case because Pope sat on his

rights.12      Accordingly, we decline to create an exception to the

Perry/DeLeon          procedure——which            specifically       contemplated      a

faultless       appellant——for           Pope      because   the      transcript      is

unavailable due to his delay.13

       ¶45     In support of his argument that he should be granted a

new trial, Pope cites cases from other jurisdictions where the

appellant was granted a new trial.                       But none of those cases

supports       the    proposition        that     an   appellant     who   causes    the

transcript      to    be   unavailable          should   automatically     get   a   new

trial.       See Cole v. United States, 478 A.2d 277, 279 (D.C. 1984)

(appellant timely noticed appeal and ordered a trial transcript,

but the court reporter's notes were lost); State v. Yates, 821

S.E.2d       650,    652-53      (N.C.    Ct.     App.   2018)     (appellant    timely

noticed       appeal,      but       court   reporter's      recording      equipment

malfunctioned); Johnson v. State, 524 S.W.3d 338, 339-40 (Tex.

       The parties' 2016 joint stipulation to reinstate Pope's
       12

direct appeal rights and the court of appeals' subsequent order
to that effect do not change the fact that the trial transcript
is unavailable due to Pope's delay.   The stipulation and order
permitted Pope to file an appeal.   They did not guarantee that
Pope's appeal would be successful or that he would automatically
win a new trial.

       One could argue that Pope is somehow due relief, but that
       13

argument would rely on our discretionary authority under Wis.
Stat. § 751.06 to reverse a judgment if "the real controversy
has not been fully tried" or "it is probable that justice has
for any reason miscarried."      § 751.06.    Neither of those
criterion is met here.

                                             27
                                                             No. 2017AP1720-CR



Ct. App. 2017) (appellant did not abandon his appeal, but "a

significant portion of the record had been lost or destroyed

through no fault of the appellant . . . "); Johnson v. State,

805 S.E.2d 890, 891-93 (Ga. 2017) (appellant timely moved for a

new trial, but the entire trial transcript was destroyed in a

fire at the court reporter's house);              In re Shackleford, 789

S.E.2d 15, 17 (N.C. Ct. App. 2016) (respondent timely noticed

appeal, but the courtroom recording equipment failed, and no

court reporter was present); see also People v. Jones, 178 Cal.

Rptr. 44, 45 (Cal. Ct. App. 1981) (appellant did not timely

appeal,     but   court   of   appeal   granted   appellant's    motion    for

relief and court reporter voluntarily destroyed her notes from

appellant's 1973 trial); State v. Hobbs, 660 S.E.2d 168, 169-70

(N.C. Ct. App. 2008) (appellant did not timely notice appeal,

but court of appeals allowed appellant's writ petition and court

reporter's notes and audiotapes were lost).

      ¶46      Pope also argues that the burden of his procedural

shortcomings should lie with the State because he was acting as
a   pro   se    litigant,   abandoned    by   counsel.     See   Coleman    v.

Thompson, 501 U.S. 722, 754 (1991) (quoting Murray v. Carrier,

477 U.S. 478, 488 (1986)) ("[I]f 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 State.").          Both parties and this court all agree that

counsel's failure to file the notice of intent was inexcusable.

But that does not excuse Pope's failure to timely move to extend
the deadline to file the notice of intent.               Nor does it excuse
                                        28
                                                                 No. 2017AP1720-CR



his failure to order the trial transcript for over ten years.

Pro    se    litigants,       though    acting   without    counsel,    are    still

required to timely assert their rights.                    If they do not, then

they may forfeit those rights.                   There are other contexts in

Wisconsin        law    where    an   appellant's   untimeliness      forfeits    an

appeal.

       ¶47    For example, in State v. Escalona-Naranjo we concluded

that an appellant who fails to assert a claim that could have

been asserted on direct appeal or a Wis. Stat. § 974.02 motion

is barred from subsequently asserting that claim for the first

time    in   a    postconviction        motion   under   Wis.   Stat.    § 974.06.

185 Wis. 2d 168,          173,   517   N.W.2d 157    (1994).     In     support   of

imposing the Escalona-Naranjo bar for failure to timely assert a

claim, we reasoned:

       Section   974.06(4)  was  not   designed  so   that   a
       defendant,    upon  conviction,   could   raise    some
       constitutional issues on appeal and strategically wait
       to raise other constitutional issues a few years
       later.     Rather, the defendant should raise the
       constitutional issues of which he or she is aware as
       part of the original postconviction proceedings.     At
       that point, everyone's memory is still fresh, the
       witnesses and records are usually still available, and
       any remedy the defendant is entitled to can be
       expeditiously awarded.
Id. at 185-86.           Thus, we determined that appellants' rights are

best protected when they assert their claims in a timely manner.

We    concluded        that   Escalona-Naranjo      forfeited   his    ineffective

assistance of trial counsel claim because he failed to timely

assert it and did not allege good cause for the delay.                        Id. at
186.

                                           29
                                                                          No. 2017AP1720-CR



       ¶48     We did something similar in State ex rel. Flores v.

State, 183 Wis. 2d 587, 516 N.W.2d 362 (1994).                          In that case, we

held that once a defendant has been adequately informed of his

right to request a no-merit report under Wis. Stat. § (Rule)

809.32, the defendant is presumed to have waived that right

unless he exercises it.              Id. at 617-18.          "A defendant may rebut

this presumption by showing exceptional circumstances or good

cause . . . ."         Id. at 618.

       ¶49     We have also long held that unreasonable delay may bar

a    petition    for    a   writ    of        habeas   corpus     under      the   equitable

doctrine of laches.            See State ex rel. Coleman v. McCaughtry,

2006 WI 49, 290 Wis. 2d 352, 714 N.W.2d 900; see also State ex

rel. Lopez-Quintero v. Dittmann, 2019 WI 58, 387 Wis. 2d 50, 928

N.W.2d 480.        In sum, there is nothing particularly remarkable

about    the    notion      that    a    pro     se    litigant    cannot      sit   on    his

rights.

       ¶50     Pope knew that his trial counsel needed to file a

notice of intent to pursue postconviction relief by July 22,
1996.     When trial counsel failed to file the notice of intent,

Pope failed to defend his rights for 14 months.                                    When Pope

finally filed a motion to extend the deadline to file, the court

of    appeals    denied      his    motion       because    he    had   delayed      for   14

months and there was no good cause shown.                          Thus, Pope did not

file a notice of intent for 20 years.                      Nor did he timely order a

trial    transcript.          Now       the    trial    transcript      is    unavailable.

Accordingly,       we       decline       to     create     an     exception         to    the


                                                30
                                                              No. 2017AP1720-CR



Perry/DeLeon     procedure    for   Pope    because     the   transcript     is

unavailable due to his delay.14

                              V.    CONCLUSION

     ¶51    We decline to presume prejudice when the entire trial

transcript is unavailable.          We conclude that the Perry/DeLeon

procedure applies whether all or a portion of a transcript is

unavailable.      We also decline to create an exception to the

Perry/DeLeon     procedure    for   Pope    because     the   transcript     is

unavailable due to Pope's own delay.            Thus, we affirm the court

of appeals.



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

affirmed.




     14 The State argued that, if we adopted Pope's exception to
the   Perry/DeLeon  procedure,   we  should  vacate   the   joint
stipulation reinstating Pope's right to direct appeal and remand
to the court of appeals to consider a laches defense.     Because
we decline to create an exception in this case, we do not
consider the State's arguments regarding the stipulation or
laches.

     Additionally, the court of appeals' decision relied in part
on Pope's assertion on his 1998 pro se statement on transcript
that the only transcript necessary for his appeal was the
sentencing transcript.      Pope argued that a statement on
transcript should not bind a pro se litigant in subsequent
appeals.   Because we base our conclusions on the Perry/DeLeon
procedure and Pope's delay, we do not decide the extent to which
a pro se litigant is bound by his assertions on a statement on
transcript.

                                     31
                                                              No.   2017AP1720-CR.rgb


       ¶52     REBECCA GRASSL BRADLEY, J.              (dissenting).     The Sixth

Amendment       to    the   United     States    Constitution       guarantees   all

criminal defendants the right to effective counsel on direct

appeal, even defendants convicted of heinous crimes.                     Douglas v.

California, 372 U.S. 353, 355-58 (1963); Evitts v. Lucey, 469

U.S. 387, 396-97 (1985).              The Sixth Amendment's guarantee of the

assistance           of     counsel      means        that    an     attorney     is

"constitutionally ineffective [when he] fail[s] to file a notice

of appeal."          Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).

When       a   defendant     establishes       that    his   counsel's    deficient

performance deprived him of his direct appeal, "prejudice is

presumed" and his direct appeal rights are restored with "no

need for a 'further showing' of his claims' merit."                        Garza v.

Idaho, 139 S. Ct. 738, 744, 747 (2019) (quoted source omitted).1

"If the defendant told his lawyer to appeal, and the lawyer

dropped the ball, then the defendant has been deprived, not of


       See also Roe v. Flores-Ortega, 528 U.S. 470, 477, 483-84
       1

(2000) (loss of the "entire [appellate] proceeding itself, which
a defendant wanted at the time and to which he had a
right . . . demands a presumption of prejudice"; "[w]e have 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," and "'when counsel fails to file a
requested appeal, a defendant is entitled to [a new] appeal
without showing that his appeal would likely have had merit'")
(quoted source omitted); Rodriquez v. United States, 395 U.S.
327, 330 (1969) ("Those whose right to appeal has been
frustrated should be treated exactly like any other appellants;
they should not be given an additional hurdle to clear just
because their rights were violated at some earlier stage in the
proceedings."); see also Strickland v. Washington, 466 U.S. 668,
692 (1984) ("Actual or constructive denial of the assistance of
counsel   altogether   is   legally   presumed  to   result   in
prejudice.").

                                           1
                                                                           No.    2017AP1720-CR.rgb


effective      assistance            of     counsel,       but      of     any    assistance          of

counsel on appeal," which is a "per se violation of the sixth

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

Cir. 1994) (citation omitted).

       ¶53    The majority acknowledges the failure of Robert James

Pope Jr.'s trial counsel to file the Notice of Intent to Pursue

Postconviction Relief——the prerequisite to the appointment of

appellate counsel——which resulted in the deprivation of Pope's

constitutionally-guaranteed direct appeal rights.                                     Majority op.,

¶9.     Nevertheless, the majority repeats the error made by the

court of appeals in 1997 when it denied Pope's first attempt to

resurrect his direct appeal rights:                           the majority burdens a pro

se criminal defendant with commencing postconviction proceedings

on    his    own    and    without         the    assistance          of   counsel          the    Sixth

Amendment otherwise promises him.                             When this pro se criminal

defendant inevitably committed errors, this court seized upon

his    inability          to    correctly         follow        the       rules       of    appellate

procedure          to   deny         him     what       the     Constitution               guarantees.
Statutes       cannot          override          constitutional            rights.                "[O]ne

principal      reason          why    defendants         are       entitled       to       counsel   on

direct      appeal      is     so     that       they    will       not    make       the     kind    of

procedural errors that unrepresented defendants tend to commit.

The    Constitution            does        not    permit       a    state        to    ensnare       an

unrepresented defendant in his own errors and thus foreclose

access to counsel."                  Betts v. Litscher, 241 F.3d 594, 596 (7th

Cir. 2001) (emphasis added).



                                                    2
                                                    No.    2017AP1720-CR.rgb


     ¶54    After more than twenty years of attempts to reinstate

his direct appeal rights following his attorney's failure to

initiate an appeal, the State stipulated to affording Pope a

direct appeal and the court of appeals ordered Pope's rights

reinstated.2     Pope's constitutionally-guaranteed direct appeal

was back on track until his appellate counsel, new to the case,

discovered that no transcripts from Pope's trial existed.            Court

reporters are required to keep trial notes for only 10 years and

the notes from Pope's trial were destroyed in 2006.                See SCR

72.01(47)    (requiring   that   court   reporter   notes      "shall    be

retained" for "10 years after the hearing").              Because she had

nothing to review, Pope's appellate counsel could not proceed

with Pope's constitutionally and statutorily secured right to

meaningful appellate review.3


     2 The State requests the opportunity to assert laches, but
the current posture of this case precludes consideration or
application of that equitable doctrine, which is available in
response to a petition for a writ of habeas corpus but not as a
defense to postconviction motions.        The court of appeals
dismissed   Pope's   habeas  petition   following   the   parties'
stipulation to the reinstatement of Pope's direct appeal rights.
These appellate proceedings dispose of Pope's postconviction
motion for a new trial. Laches may not be asserted in defense
of such a motion.     See State v. Evans, 2004 WI 84, ¶35, 273
Wis. 2d 192, 682 N.W.2d 784, abrogated on other grounds by State
ex rel. Coleman v. McCaughtry, 2006 WI 49, 290 Wis. 2d 352, 714
N.W.2d 900 ("unlike [Wis. Stat.] § 974.06 motions, a habeas
petition   under   [State   v.]Knight[,   168   Wis. 2d 509,   484
N.W.2d 540 (1992)] is subject to the doctrine of laches because
a petition for habeas corpus seeks an equitable remedy.").
     3 Wis. Const. art. I, § 21(1); Wisconsin Stat. § 808.03(1);
State v. Perry, 136 Wis. 2d 92, 99, 401 N.W.2d 748 (1987)
(recognizing defendant's right to appeal must be a "meaningful
one").

                                   3
                                                        No.    2017AP1720-CR.rgb


    ¶55   Accordingly,    Pope's     appellate     counsel      filed     a    Wis.

Stat. § 809.30 motion for a new trial, which she asserted was

the only relief available because no trial transcripts existed,

Pope's trial counsel had destroyed his file and had no memory of

the case, and 20 years had passed since the trial.                  The circuit

court agreed, vacated Pope's conviction, and granted the motion

for a new trial.      The court of appeals reversed, applying the

partially-missing     transcript     rule   from   State      v.     Perry,     136

Wis. 2d 92, 401 N.W.2d 748 (1987), under which a defendant must

allege that a colorable claim of error exists in the missing

portion of the trial transcript as a prerequisite to relief.

The majority affirms the court of appeals, holding:                      (1) the

Perry rule applies to cases where no trial transcripts exist,

see majority op., ¶¶3, 38, 51; (2) Pope is at fault because he

"sat on his rights for 14 months" before seeking to restore

them, id., ¶¶41-42; (3) Pope is to blame for the unavailability

of the transcripts, id., ¶¶3, 39, 50-51; and (4) after being

deprived of his constitutional right to effective assistance of
counsel   for   his   direct    appeal,     Pope   bore       the    burden     of

successfully    navigating     the   justice   system     pro       se   and   his

failure to do so sooner than "14 months" after sentencing means

he forfeited all of his rights, id., ¶¶42-44, 46, 50.

    ¶56   Compounding the calamity of errors that deprived Pope

of his direct appeal, the majority casts aside constitutional

and statutory rights, misapplies cases, and wrongfully blames

Pope for his attorney's errors.           Even though a jury found Pope
guilty of two counts of first-degree homicide as party to a

                                      4
                                                                   No.    2017AP1720-CR.rgb


crime, he nevertheless retains the constitutional and statutory

rights our laws secure.             Cruz v. Beto, 405 U.S. 319, 321 (1972)

("Federal courts sit . . . to enforce the constitutional rights

of all 'persons,' including prisoners[.]"); Turner v. Safley,

482 U.S. 78, 84 (1987) ("[P]risoners retain the constitutional

right     to     petition        the     government          for    the     redress           of

grievances . . . and             they    enjoy        the     protections          of        due

process[.]" (internal citations omitted)).

      ¶57      The Constitution guarantees every criminal defendant

the right to an attorney for an obvious reason.                            Attorneys are

properly trained in the law and know how to navigate the court

system.        Nevertheless,       the   majority       absurdly         holds   convicted

prisoners      to    the   same     standards      as       trained      lawyers.            The

Constitution        grants       criminal       defendants         the     right        to     a

meaningful direct appeal, aided by counsel.                         The majority pays

lip service to these rights but then violates them.                              According

to this court, if appointed counsel abandons his client and

forfeits his appeal, then the criminal appellant must proceed on
his own, without any counsel at all.                    If he does not follow the

rules closely enough or within whatever unspoken period of time

the   court     believes     appropriate        for    deciphering         the   rules        of

appellate procedure, the appellant is simply out of luck.                                    The

Constitution        does   not    countenance         such    a    perversion       of       the

criminal justice system.

      ¶58      The Constitution compels the opposite conclusions the

majority reaches:          (1) Perry cannot apply when the entire trial
transcript is unavailable; (2) Pope did not sit on his rights;

                                            5
                                                                  No.    2017AP1720-CR.rgb


(3)    Pope    is    not     to      blame    for    the    unavailability        of       the

transcripts; and (4) the law does not impose on an imprisoned

convict      the    burden      to   pursue    his    own     direct     appeal      pro    se

because the Constitution guarantees him an effective appellate

counsel and a meaningful appeal.                    I would reverse the decision

of    the    court    of   appeals      and       reinstate    the     circuit    court's

decision; therefore, I respectfully dissent.4

                                              I

       ¶59    After the circuit court sentenced Pope to two life

terms,      Pope    went   to     prison     with    the    belief      that   his     trial

attorney would initiate his direct appeal.                      As Pope would later

learn, his attorney not only ignored him, but abandoned him

completely.         Pope signed a form indicating he wanted to pursue

postconviction relief and his attorney assured Pope he would

take care of filing the Notice of Intent, which would have put



       This is not a case where a defendant manipulated the
       4

system to secure a new trial. Pope signed the SM-33 form on the
day he was sentenced stating he would seek relief from the
judgment of conviction.   Not surprisingly, Pope counted on his
counsel to initiate his direct appeal as counsel promised to do.
If Pope had instructed his counsel not to file the Notice of
Intent to Pursue Postconviction Relief and then intentionally
let the 10-year time period for trial transcript retention
expire before seeking relief, he would clearly not be entitled
to relief.    That is not what happened in this case and the
majority's assertion that "there would be nothing to stop
criminal defendants from sitting on their hands for ten years"
in order to get a new trial is absurd. Majority op., ¶36. Our
statutory procedures obviously foreclose such tactics.     Surely
the majority does not mean to insinuate that criminal defense
lawyers would intentionally violate appellate procedures or
purposefully abandon their clients in order to secure a new
trial——the only scenarios under which the majority's fear of the
appellate floodgates opening could possibly come to fruition.

                                              6
                                                          No.   2017AP1720-CR.rgb


the direct appeal in motion.           Had Pope's attorney filed that

form, Pope would have received his direct appeal and this case

would have come to an end.           However, Pope's attorney, Michael

Backes, did not file that form, nor did he respond to the two

letters   Pope   wrote   inquiring    about   his   appeal.         Pope   tried

repeatedly to reach Backes by phone, as did Pope's mother, to

ask about the appeal.

    ¶60    The record suggests that after a year of waiting, Pope

gave up on Backes.       In August 1997, he wrote to the Wisconsin

State Public Defender's ("SPD") office asking about his appeal.

The SPD responded that it had not received any paperwork for his

appeal.     Apparently,    Pope      then   asked   the     SPD    to   appoint

appellate counsel to represent him because on September 8, 1997,

the SPD acknowledged Pope's request for counsel and advised that

no Notice of Intent was filed in his case and if Pope wanted an

SPD lawyer, Pope would have "to take some steps to reinstate

your appeal rights."     The SPD explained:

         The applicable appellate rules require the filing
    of a Notice of Intent to Pursue Postconviction Relief
    in the trial court within 20 days of sentencing. When
    that notice is timely filed, appellate counsel is
    appointed, transcripts are ordered and the appeal
    proceeds in the normal fashion.     If the Notice of
    Intent is not filed within 20 days of sentencing, it
    is necessary to ask the court of appeals to extend the
    time by filing a motion.

         The State Public Defender is willing to appoint
    counsel to represent you on appeal if the court of
    appeals extends the time for filing the Notice of
    Intent in your case.    I have no idea why the Notice
    was not timely filed and therefore you are going to
    have to explain the reason to the court in a motion to
    extend the time for filing the Notice.

                                      7
                                                 No.   2017AP1720-CR.rgb


The SPD enclosed two forms to help Pope file his motion seeking

reinstatement of his direct appeal.

    ¶61   Within a week of receiving the SPD letter, Pope filed

a pro se motion asking the court of appeals "to reinstate his

(appellant's)    rights   to   direct   appeal   to    his    criminal

conviction."    Pope explained that his trial counsel told Pope he

"would file a notice of appeal and ensure that the appellant's

case was reviewed by the state court of appeals," but Pope "lost

all communication with attorney Backes, and no notice of appeal

has been filed and no appellate attorney has been appointed."

Pope further explained he was "unfamiliar" with how to initiate

an appeal "due to [his] lack of knowledge."      Nine days later, on

September 25, 1997, the court of appeals perfunctorily denied

Pope's motion with a single paragraph of analysis and (as the

majority acknowledges) a miscounting of the extent of Pope's

delay:

    Even assuming the truth of Pope's representations
    regarding the performance of trial counsel, Pope has
    failed to provide the court with a sufficient
    explanation as to why, when counsel failed to initiate
    postconviction proceedings timely, he did not attempt
    to commence postconviction proceedings on his own.
    The court can see nothing in the motion that would
    warrant   a    fifteen-month   delay   in   commencing
    postconviction proceedings.  Because no good cause is
    shown,

         IT IS ORDERED that the motion to extend the
    deadline for filing a notice of intent to pursue
    postconviction relief is denied.
(Emphasis added).    As the majority notes, less than 14 months

lapsed between sentencing and the filing of Pope's pro se motion



                                 8
                                                                  No.   2017AP1720-CR.rgb


to   extend        the     deadline    for    filing       the   Notice       of    Intent.

Majority op., ¶11 n.5.

     ¶62    After        the   court    of    appeals'     denial,      all     subsequent

attempts    by      Pope     to   restore     his     direct     appeal    rights      were

rejected until he filed a petition for writ of habeas corpus in

July 2014.5         The court of appeals sat on the habeas petition

until March 2015 when it ordered the State to respond to Pope's

petition.      In November 2015, the court of appeals sent Pope's

petition      to     the     circuit    court       with    directions        to    hold   a

factfinding        hearing     within    90       days.     Notably,      the      court   of

appeals' delay between the filing of the habeas petition and the

remand to the circuit court for a hearing was 16 months——two

months longer than Pope's delay while he waited for his attorney

to initiate an appeal.



     5 In October 1997, Pope filed a Wis. Stat. § 974.06 motion
alleging his attorney rendered ineffective assistance.       The
circuit court denied the motion, saying it was bound by the
court of appeals' September 25, 1997 order. Pope filed a notice
of appeal in November 1997 and a document construed to be a
request for waiver of transcript fees; the court of appeals
remanded to the circuit court to determine whether Pope was
entitled to free transcripts.      The circuit court ruled Pope
failed to allege any meritorious claim so he was not entitled to
free transcripts. In February 1999, the court of appeals denied
Pope's motion to extend the time to file a direct appeal,
referring to its earlier order.     In March 1999, the court of
appeals summarily affirmed the circuit court denial of the
§ 974.06 motion concluding that Pope waived his appeal.     Pope
petitioned this court for review and we denied the petition on
the ground that it was untimely.       In June 2003, Pope filed
another motion seeking to extend time, asserting he did not
waive his right to direct appeal with counsel but he was
completely denied direct appeal counsel.    The court of appeals
denied Pope's motion as "settled."

                                              9
                                                            No.   2017AP1720-CR.rgb


    ¶63     Despite the court of appeals order for the factfinding

hearing to take place within 90 days, it did not.                    In February

2016, Pope notified the court of appeals that the circuit court

had not complied with the 90-day order.                    In March 2016, the

circuit court sought an extension of time to hold the hearing,

which was granted.         The factfinding hearing finally occurred in

April      2016——21       months     after     Pope    filed       his    motion.

Paradoxically, the majority insists Pope's 14-month delay was

unreasonable, see majority op., ¶¶12, 41, 42, 50.                   In May 2016,

the circuit court made findings based on the testimony at the

hearing:     (1) Pope signed the SM-33 form indicating his desire

to file a direct appeal; (2) Backes never filed the Notice of

Intent   and    had     other   disciplinary    actions    regarding     improper

handling of postconviction matters; (3) Pope had been attempting

to reinstate his direct appeal rights since 1996;6 and (4) Pope

was credible about the efforts he took to contact Backes.

    ¶64     In August 2016, the State entered into a Stipulation

with Pope that it would jointly move the court of appeals to
reinstate      Pope's    direct    appeal    rights   if   Pope   dismissed    his

habeas petition.         Pope agreed to do so, and in September 2016,



    6  The majority mistakenly dismisses this factual finding
based on the "law of Pope's case" from the 1997 court of appeals
decision. Majority op., ¶16 n.9. The majority apparently fails
to recognize that the 1997 court of appeals decision no longer
stands as the "law of the case" because the 2015 court of
appeals decision sent Pope's case to the circuit court for
factfinding following the filing of his habeas petition.    This
factual finding is the law of the case unless an appellate court
says it was clearly erroneous, which no court, including this
one, has done.

                                        10
                                                                      No.    2017AP1720-CR.rgb


the     court     of    appeals      ordered       Pope's       direct       appeal      rights

reinstated.

       ¶65    At this point it appeared Pope would finally get the

direct appeal the Constitution guarantees him and which he had

been trying to secure for more than 20 years.                          However, when his

appellate counsel discovered that all trial transcripts had been

destroyed and Backes had no file or memory of the case, the only

relief available to Pope was to move for a new trial.

       ¶66    The      circuit     court     found      that    without      a    transcript,

there could be no meaningful direct appeal and the only option

was to grant a new trial.                  The State appealed the decision and

the court of appeals reversed.                     It held that Perry applied and

because      Pope      did   not    allege    any      errors    to    be    found       in   the

missing "part" of the transcript (which was actually the entire

trial), he was not entitled to relief.                            Pope petitioned for

review, which this court granted.

                                              II

       ¶67    The majority errs in extending Perry to cases where
the entire trial transcript is unavailable.                                 In    Perry, this

court    adopted        a    procedure       to    use    when    part       of    the     trial

transcript is missing.               136 Wis. 2d at 104-05.                  Initially, the

procedure had been used in a court of appeals case, State v.

DeLeon, 127 Wis. 2d 74, 80-82, 377 N.W.2d 635 (Ct. App. 1985).

Under the Perry/DeLeon procedure:                      (1) the defendant must allege

a     colorable        claim   of    error        in     the    missing      part     of      the

transcript; (2) if the defendant does so, then the circuit court
must determine whether the missing portion can be reconstructed;

                                              11
                                                                      No.   2017AP1720-CR.rgb


(3)   if     reconstruction        is    impossible,       the    circuit       court   must

order a new trial but if reconstruction is possible, the parties

may collaborate on reconstructing the record, which the circuit

court      must    then       approve    after        resolving       any    disagreements

between the parties.             Perry, 136 Wis. 2d at 100-102; DeLeon, 127

Wis. 2d at 80-82.

       ¶68     The Perry/DeLeon procedure cannot be applied in a case

with no trial transcripts, a situation neither case reflects or

contemplates.           Both Perry and DeLeon involved cases with only

small portions of missing transcript.                     In DeLeon, merely fifteen

minutes of the transcript was missing, the error was discovered

not long after the sentencing, and the case was tried to the

court——not        a     jury.7          127        Wis. 2d at    76.          Under     those

circumstances,          the    details        of    DeLeon's    trial       were   fresh   in

everyone's minds.             More importantly, counsel had other portions

of the record to review in order to formulate colorable claims

of    error.          Following    the       procedure     DeLeon      adopted     prevents

insignificant or harmless errors from triggering a new trial.
"[N]ot     all     deficiencies         in    the     record    nor    all    inaccuracies

require a new trial."             Perry, 136 Wis. 2d at 100.

       ¶69     In Perry, substantial portions of two mornings of the

nine-day trial were missing.                  136 Wis. 2d at 95-96.            The circuit

court      heard       Perry's      motion          on   the     missing       transcripts



       DeLeon suggests that when the time between trial and
       7

discovery of the missing transcript is "several months," an
accurate reconstruction of the record "may be the exception
rather than the rule." State v. DeLeon, 127 Wis. 2d 74, 82, 377
N.W.2d 635 (Ct. App. 1985).

                                               12
                                                                   No.    2017AP1720-CR.rgb


approximately         one     year    after       the         trial.       Id.      at    97.

Nevertheless, the circuit court that presided over the trial

remembered       it     and     found       the        transcripts        that      existed

"substantially        cover[ed]       all     of        the     proceedings      as      [it]

recall[ed]    them."          Id.       Nevertheless,           this    court    reversed,

granting Perry a new trial.                  Id. at 104-109.               Although this

court adopted and applied the DeLeon procedure, it identified

significant problems precluding meaningful appellate review when

the missing transcripts represented one-eighth of the trial and

established the following principles the majority in this case

altogether ignores:

       "[T]he        right    of    appeal       to    the     court    of   appeals      is

        constitutionally guaranteed in the State of Wisconsin"

        and "the appeal [must] be a meaningful one."                            Id. at 98-

        99.

       "In order that the right be meaningful, our law requires

        that a defendant be furnished a full transcript——or a

        functionally equivalent substitute[.]"                         Id. at 99.
       "The usual remedy where the transcript deficiency is such

        that there cannot be a meaningful appeal is reversal with

        directions that there be a new trial."                            Id. (citations

        omitted).

    ¶70     In    Pope's        case,       the        majority        misapplies        Perry

entirely.     The factors that led this court to grant Perry a new

trial are even more compelling in Pope's case.                            In Perry, one

year passed since the trial; in this case, Pope's trial occurred
more than twenty years ago.                 Perry had new counsel on appeal,

                                            13
                                                                         No.    2017AP1720-CR.rgb


making the transcript appellate counsel's "principal guide."                                    In

this case, Pope's appellate counsel has no guide whatsoever.                                    In

both Perry and this case, trial counsel was unable to alert

appellate counsel to possible errors that may have occurred at

trial.       However, Perry's colorable claim arose from an assertion

of    prosecutorial         misconduct,       which       could     be    readily       resolved

using existing parts of the record.                         Perry was able to assert

that    he    needed    the       prosecutor's         closing      argument,         which     was

within the missing part.              136 Wis. 2d at 107.                 In contrast, Pope

and     his    appellate          counsel     are       completely             precluded      from

identifying any colorable claim because they have no transcripts

to review.

       ¶71     Finally,       this    court       in    Perry      recognized          that     the

"context       of    the     entire       record"      is     important          in    assessing

"whether error is prejudicial or harmless."                               Id. at 105.            In

Pope's case, there is no record whatsoever from which to glean

any context; as a result, appellate counsel is totally hamstrung

in     identifying          any    error,    much       less       assessing          whether    a
particular          error     may    be     prejudicial          or      harmless.            Most

significantly,         the        majority    in       this     case       disregards         "the

absolute and constitutional necessity for providing a criminal

defendant      a     transcript      that    will      make     possible         a    meaningful

appeal."       Id.

       ¶72     The     majority       mistakenly            interprets          this     court's

statement in Perry that the DeLeon procedure applies to a "broad

spectrum of cases" to mean the Perry/DeLeon procedure applies
even    when    NO    transcripts         exist     and     when      counsel's        deficient

                                              14
                                                                  No.    2017AP1720-CR.rgb


performance delays the direct appeal for more than two decades

post-trial.           Majority op., ¶¶30-32.              Neither Perry or DeLeon

said       anything    close      to    the   majority's    construction        of   them.

"Broad       spectrum"      cannot        possibly    encompass     an     appeal    like

Pope's, finally permitted more than 20 years post-trial, absent

any transcript whatsoever for appellate counsel to review.                            The

majority disregards DeLeon's reliance on Cole v. United States,

478 A.2d 277 (D.C. 1984), which shows the DeLeon procedure was

never intended to apply in cases with no available transcripts.

In Cole, two          days of trial transcripts              were almost entirely

reconstructed.              The        Cole   court    nevertheless        deemed     them

inadequate:        "We are convinced that under the circumstances of

this       case,   the      supplemental         record    on   appeal       lacks    the

completeness          and      the       reliability       necessary       to    protect

appellant's        right       to      pursue    an   appeal    and      this    court's

obligation to engage in meaningful review."8                    Id. at 287.

       ¶73     Pope's case stands in stark contrast to Perry.                         With

no trial transcripts for Pope's appellate attorney to review,
determining whether any claim of error exists is impossible.

Because Pope's trial was more than 20 years ago, the memories of


       Other jurisdictions recognize the indispensability of the
       8

transcript.   See, e.g., Johnson v. State, 805 S.E.2d 890, 898
(Ga. 2017) ("An appeal is Johnson's chance to point to the
record and overcome those presumptions [that a trial court
followed the law and that trial counsel rendered adequate
assistance].   He can only do that with an adequate transcript.
In this case, where the whole original verbatim transcript of
his trial is lost and the narrative recreation is manifestly
inadequate, Johnson has not been given a fair opportunity to
identify any trial errors and resulting harm or deficient
performance by counsel and resulting prejudice.").

                                                15
                                                              No.    2017AP1720-CR.rgb


those     who    participated          are   either     substantially       faded   or

nonexistent.          If only portions of a transcript are missing, the

appellant at least has some transcripts to review to allow him

to meet the burden.         Not so here.          The docket in this case shows

a total of 21 witnesses and 67 exhibits introduced during a

four-day trial.          If two days of missing transcripts in Cole and

something less than two mornings of missing transcripts in Perry

were inadequate for a meaningful appeal, then the absence of any

portion of the four-day trial transcript in Pope's case compels

the same conclusion and warrants a new trial, as in Perry.                          The

majority's denial of Pope's rights lacks any support under the

very law on which the majority bases its decision.                        In fact, the

controlling cases contradict the majority's conclusions.

       ¶74     This     court     in     Perry     recognized       the     overriding

importance of the trial transcript, something the majority in

this case utterly ignores:

       [T]he most basic and fundamental tool of [an appellate
       advocate's]   profession   is   the   complete   trial
       transcript, through which his trained fingers may leaf
       and his trained eyes may roam in search of an error, a
       lead to an error, or even a basis upon which to urge a
       change in an established and hitherto accepted
       principle of law.
Perry, 136 Wis. 2d at 106 (quoting Hardy v. United States, 375

U.S.    227,    288    (1964)     (Goldberg,      J.,   concurring)).         "[W]here

counsel on appeal is new to the case, it is the transcript which

must    be     his    principal    guide."         Perry,   136     Wis. 2d at      105

(emphasis added).           Perry noted the handicap under which new

counsel      operates    because       "[r]ecollections     and     notes    of   trial
counsel . . . are apt to be faulty and incomplete."                         Id. at 106
                                             16
                                                                    No.      2017AP1720-CR.rgb


(quoted source omitted).             "There is no way appellate counsel can

determine if there is arguable merit for the appeal without

either    having       been     the        trial         attorney      or     reading      the

transcript."         In the Interest of J.D., 106 Wis. 2d 126, 132, 315

N.W.2d 365 (1982) (emphasis added).

    ¶75       The majority neglects to explain how Pope's appellate

counsel could possibly identify a single meritorious issue for

the appeal without having been the trial attorney and with no

transcript to review.               Applying the procedures of                     Perry and

DeLeon   in    cases     with   no    trial          transcripts      defies       logic   and

denies   a    defendant       his   constitutional            right     to    a   meaningful

direct appeal.         Requiring Pope to allege a colorable claim with

no transcripts from the trial constitutes a "failure of the

appellate     process     which       prevents           a   putative       appellant      from

demonstrating possible error" and "a constitutional deprivation

of the right to appeal."             See Perry, 136 Wis. 2d at 99.

    ¶76       The    majority       says    "[t]here          is   nothing        exceptional

about requiring the appellant to assert a facially valid claim
of arguably prejudicial error."                      Majority op., ¶33.              This is

certainly true when an appellant has been afforded the effective

assistance      of    counsel       for    a        direct    appeal        and   the   trial

transcripts——the primary guide for asserting error on appeal——

are available.         However, when an appellant has been deprived of

those    constitutionally-guaranteed                     rights,    requiring        him     to

assert   a    facially    valid       claim         of   arguably     prejudicial       error

without any basis for doing so imposes a condition no appellant
could meet.         The law affords Pope a new trial but the majority

                                               17
                                                                     No.   2017AP1720-CR.rgb


denies    him       one,    thereby      perpetuating         the    trampling         of   his

constitutional rights that began with his counsel abandoning him

and the court of appeals looking the other way.

                                               III

       ¶77    The     majority      justifies          denying      Pope    a    meaningful

appeal       by    blaming    him       for     the    results      of     his   attorney's

inaction.         The majority inaccurately concludes that Pope "sat on

his rights for 14 months."                    Majority op., ¶¶41-42.             The record

itself refutes this statement.                      First, the circuit court found

that Pope has been trying to reinstate his appeal rights since

1996.     This finding is not clearly erroneous.                           Pope wrote and

called his trial counsel multiple times.                         Pope's mother called

Backes multiple times.              Perhaps Pope believed Backes initiated

the appeal as he promised to do and Pope simply waited to hear

the results.          Appeals are not resolved overnight and waiting a

year before taking action under Pope's circumstances was not

unreasonable.          The    record          shows    that   in    August       1997,      Pope

reached out to the SPD to ask about his appeal.                              Once the SPD
advised      Pope    what    to    do,    he     immediately        took    action.         The

majority ignores this record in concluding that Pope "sat on his

rights for 14 months."

       ¶78    Regardless,         any    missteps        Pope      made    attempting        to

assert       his    direct    appeal          rights     resulted        from    his     trial

counsel's         ineffective     assistance.            If   Backes       had    filed     the

Notice of Intent as he promised he would, Pope's appeal would

have    proceeded       in    a   timely        manner    with      the     assistance        of
appointed appellate counsel.                   When a "procedural default is the

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result of ineffective assistance of counsel, the Sixth Amendment

itself requires that responsibility for the default be imputed

to the State."         Coleman v. Thompson, 501 U.S. 722, 754 (1991)

(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).                                 The

Seventh Circuit ably explained why counsel on direct appeal is

so important:

      Yet one principal reason why defendants are entitled
      to counsel on direct appeal is so that they will not
      make the kind of procedural errors that unrepresented
      defendants tend to commit. The Constitution does not
      permit a state to ensnare an unrepresented defendant
      in his own errors and thus foreclose access to
      counsel.
Betts, 241 F.3d at 596.                The majority ignores these cases in

faulting and then penalizing Pope for procedural missteps.                             The

deprivation      of    constitutionally-guaranteed               counsel    on   direct

appeal is properly imputed to the State.

                                            IV

      ¶79    The majority makes a fundamental factual error that

undermines the foundation of the entire opinion:                        not only does

the   majority    base       its     "outcome"    on   "Pope's     inaction      for    14
months"9 the majority blames Pope for the destruction of the

trial transcripts.            The majority says that by waiting until

September     1997     to     file    his   first      motion,    Pope     caused      the

unavailability        of    the    trial    transcripts.         This    statement      is

patently false.            Pope's first motion was filed in 1997 and the

trial transcripts did not dematerialize until 2006, by operation

of Supreme Court Rule 72.01(47).                 Even if Pope waited until 2005


      9   Majority op., ¶12.

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to   file    his     first   motion,    he   would   not    have    caused     the

unavailability of the transcripts.

     ¶80     Blame    for    the   transcript   destruction      lies   with   the

court system and the State.            See SCR 72.01(47) (requiring that

court reporter notes "shall be retained" for "10 years after the

hearing").      If the court of appeals had realized in September

1997 that Pope had been deprived of his constitutional rights to

effective counsel and a direct appeal, it would have granted

Pope's motion and the SPD would have provided appellate counsel.

Transcripts would have been ordered in 1997 and available for

Pope's direct appeal.         The State could have apprehended the same

in 1997 and advised the court of appeals to grant Pope's motion.

If the courts or the State grasped the deprivation of Pope's

constitutional rights during any of Pope's multiple attempts to

restore his direct appeal rights, the transcripts could have

been obtained.         Instead, the courts and the State overlooked

Pope's rights until it was too late.              It is the court system's

errors that caused the unavailability of the transcripts, not
the filing of Pope's first motion 14 months after sentencing and

nine years before the records retention policy applicable to

court reporters resulted in the destruction of the transcripts.

     ¶81     Inexplicably, the majority repeatedly faults Pope for

not ordering the transcript within the 10 years following his

trial.      Majority op., ¶¶17 n.10, 44, 46.         Not surprisingly, the

majority neglects to explain how Pope was supposed to identify

or track down the correct court reporter, or pay the substantial
fees necessary to obtain a four-day trial transcript, or know

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that the court reporter's notes would be destroyed 10 years

after the trial unless he orders the transcript, all without the

assistance of counsel.             His trial counsel's failure to fulfill

his obligations to Pope, who was constitutionally entitled to

receive the transcript along with the assistance of counsel to

pursue his direct appeal, bears the initial fault for the delays

in    this   case.        The    court     system's       subsequent        failures       to

recognize    Pope's       constitutional         rights       to   counsel,      a     direct

appeal, and a transcript, caused the destruction of the trial

transcripts, not Pope.

       ¶82   Because        Pope      was        not      responsible            for      the

unavailability       of    the     transcripts,          he   should      not    bear     the

consequences of their destruction.                     When "the record is lost

through no fault of the aggrieved party, that party should not

be made to bear the burden of the loss."                       Perry, 136 Wis. 2d at

111 (quoting DeLeon, 127 Wis. 2d at 77); see also United States

v.    Ullrich,     580    F.2d   765,      773   n.13     (5th     Cir.    1978).        The

majority flouts the law by imposing the consequences of the lost
transcripts on Pope despite the fault plainly lying elsewhere.

                                            V

       ¶83   Despite the purely procedural nature of Pope's appeal,

the   majority     nevertheless       conveys       in    excruciating          detail    the

facts    underlying        Pope's       conviction,           filling     its     "Factual

Background" section with allegations pulled from the Complaint,

explaining it does so because there is no trial transcript.                                It

is    improper     for    this     court    to   recast        allegations       from     the
Complaint     as     "facts"     rather      than      citing      evidence       actually

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introduced at trial.                   Of course, neither this court nor Pope can

recount         any        evidence       from     the     trial       because        the     trial

transcripts           do    not    exist.         The    Complaint       cannot       accurately

substitute for what happened at trial.                               Because this case was

tried      to    a    jury,       it    cannot    be     determined      whether       what     was

alleged in the Complaint was entered into evidence or whether

witnesses         testified            differently       or     whether        objections        to

particular questions soliciting the facts the majority recites

were sustained.

      ¶84       The majority speculates regarding what may have been

presented as evidence during the trial, which illustrates the

impossibility of the task the majority imposes on Pope.                                     Without

a   transcript,            the    majority       invites      Pope    and     other    similarly

situated defendants to fabricate colorable claims of error.                                     At

least the majority could base its factual recitation on the

Complaint.            If the Complaint had been destroyed along with the

transcripts, the majority would not have been able to write

about any facts at all.                   Pope has no record whatsoever on which
to base an asserted colorable claim of error.

                                                  VI

      ¶85       Analogizing Pope's case to the waiver and forfeiture10

situations recognized in State v. Escalona-Naranjo,11 Wis. Stat.

       "Although cases sometimes use the words 'forfeiture' and
      10

'waiver' interchangeably, the two words embody very different
legal concepts. 'Whereas forfeiture is the failure to make the
timely assertion of a right, waiver is the 'intentional
relinquishment or abandonment of a known right.'"      State v.
Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612 (quoting
United States v. Olano, 507 U.S. 725, 733 (1993)).
      11   185 Wis. 2d 168, 173, 517 N.W.2d 157 (1994).
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§ 974.06 cases, or a defendant's failure to respond in a no-

merit         appeal            demonstrates          the         majority's                  profound

misunderstanding of criminal appellate procedure.                                       Pope's case

is markedly different from each of those situations because Pope

asked    for    but     never      received     his    constitutionally                  guaranteed

direct appeal.           The forfeiture rules established in Escalona-

Naranjo and governing § 974.06 cases typically apply when the

defendant       already         received    his      constitutional                  right     to     his

direct       appeal    or       initially   decided         not       to       appeal    but        later

changed his mind.                The forfeiture rules operate to foreclose

postconviction proceedings initiated after a direct appeal or

after     a    convicted          defendant       decided         to           forgo     an     appeal

altogether.           Those      defendants     already       had          an     opportunity          to

raise issues on appeal.               Pope never did.

       ¶86     Likewise, Wisconsin's no-merit procedure supplies no

support for this court's deprivation of Pope's constitutional

rights.        The     no-merit       procedure       is    triggered             when       appellate

counsel       reviews       a     defendant's       case     and           concludes          that    no
meritorious issues exist.               See Wis. Stat. § 809.32(1)(a).                               Even

then,    a    defendant         has   the   right     to     file          a    response       to     his

attorney's no-merit report and assert any issues he thinks do

have    merit——and       the      defendant     is    entitled             to    a     copy    of     the

transcripts in order to do so.                       § 809.32(1)(b).                   Even if the

defendant does not file a report in response, his attorney must

file a no-merit report if the defendant does not consent to

closing the file without one.                  § 809.32(1)(b).                  As an additional
safeguard       for    the       defendant,     whenever          a    no-merit          appeal        is

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taken, the court of appeals must independently review the record

to decide whether it agrees with the appellate counsel's no-

merit determination.            See Anders v. California, 386 U.S. 738,

744-45    (1967);     State     v.    Fortier,   2006    WI    App    11,    ¶21,    289

Wis. 2d 179,        709   N.W.2d 893.      In    other    words,      even    when    an

appellate attorney thinks there are no arguable claims of error

to appeal, a defendant's constitutional right to a meaningful

direct appeal is honored and protected——by the court.

       ¶87    In State ex rel. Flores v. State, 183 Wis. 2d 587, 516

N.W.2d 362 (1994), the SPD-appointed appellate counsel reviewed

Flores' case and concluded it had no merit.                   183 Wis. 2d at 607-

608, 618.      She met with Flores and told him he had no issues for

appeal and then closed the file.                 Id. at 618-19.             This court

held that Flores was adequately informed about his rights to

appeal and the no merit procedure because he had received a

written packet regarding the appellate process.                          Id. at 614.

This court held Flores waived his right to appeal because he did

not    tell   his    attorney    he    disagreed   with       her    about   the    non-
meritorious nature of his case or that he wanted her to file a

no merit report, and he did not object to her closing the file.

Id. at 618-19.        Significantly, we said in Flores "[t]his is not

a case in which counsel simply abandoned her client."                          Id. at

618.     In contrast, Pope's counsel did abandon him after Pope

made it clear he wanted to appeal.                  Pope never received the

appellate information packet from the SPD because his counsel

never filed the Notice of Intent, which would have put Pope on
the SPD's radar.          Pope told his counsel he wanted to appeal and

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his counsel said he would take care of it.                           Trusting his counsel

to   do    exactly     what        he    promised       to   do     cannot       be    reasonably

construed      as    either    a        forfeiture      or     a   waiver       of    his     direct

appeal.

                                                 VII

       ¶88    "The     hard        fact     is     that      sometimes          we     must     make

decisions we do not like.                  We make them because they are right,

right in the sense that the law and the Constitution, as we see

them, compel the result."                  Texas v. Johnson, 491 U.S. 397, 420-

21   (1989)     (Kennedy,          J.,    concurring).             Undoubtedly         many     will

celebrate——indeed,            be        relieved       by——the      result       the     majority

reaches in this case.                    A person convicted of double homicide

remains      confined.         However,          the     law       does    not       support     the

majority's         decision    in        this    case;       the     law    contradicts          it.

Achieving      a    preferred       result       should      never        influence      judicial

interpretations of the law and can never override constitutional

rights.       The price of the majority's decision in this case is

paid not just by Pope, but by all of the citizens of this State.
Pope's       conviction       stands,           unreviewed,         at     the        expense     of

constitutional guarantees designed by the framers to protect the

innocent, not free the guilty.                         While some may be tempted to

deny      defendants    their           fundamental       constitutional             rights     when

they have been convicted of heinous crimes, doing so erodes the

constitutional rights of all citizens——including the innocent——

by leaving their enforcement to the discretionary impulses of

the government at the expense of individual liberty.



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    ¶89        When counsel's inexcusable error deprives a criminal

defendant of his right to an appeal, the court of appeals should

promptly       reinstate         direct       appeal      rights.       The     Constitution

commands this.           If the court of appeals had granted Pope's first

motion,     his       direct         appeal       would    have      proceeded       with     the

assistance of an appellate public defender.                            In most cases, no

prejudicial         error       is    found    and      judgments      of    conviction       are

affirmed.          Properly handled, this case would have been over for

Pope and for the victims' families decades ago, affording the

latter some closure and finality.                         The court of appeals' early

misstep generated 23 years of battles, filings, court hearings,

and uncertainty.            The people of Wisconsin should be troubled by

any conviction or imprisonment that stands at the expense of

fundamental constitutional rights.                        Imprisoning a person without

following      the       rule    of    law     opens      the   door    for    the    sort    of

governmental         abuses          against      which     the      founders     sought      to

insulate the citizens of the United States.                            The constitutional

rights    of       Wisconsin's        citizens         cannot   be    conditioned        on   the
competency of counsel.                 Because the majority acquiesces to the

deprivation of constitutional rights caused solely by the errors

of appointed counsel, I respectfully dissent.

    ¶90        I    am    authorized         to    state    that     Justices      ANN      WALSH

BRADLEY and REBECCA FRANK DALLET join this dissent.




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