Petition for Writ of Certiorari — Liegakos v. Wisconsin
Supreme Court brief1995
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941259 yay 2 0 1995
OFFIOE OF LHE GLERK
No. 94-
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1994
JON T. LIEGAKOS,
Petitioner,
vs.
STATE OF WISCONSIN,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE WISCONSIN SUPREME COURT
PETITION FOR WRIT OF CERTIORARI
ROBERT R. HENAK
Counsel of Record
SHELLOW, SHELLOW & GLYNN, S.C.
222 East Mason Street
Milwaukee, Wisconsin 53202
(414) 271-8535
Attorneys for Petitioner
QUESTIONS PRESENTED FOR REVIEW
Ba Whether retroactive application
of a new state procedural rule to deny
State appellate review of federal con-
stitutional claims violates the Due
Process Clause of the Fourteenth Amend-
ment.
; # Whether a criminal defendant was
denied his constitutional right to testify
on his own behalf when he did not
personally waive that right in open court
and the trial court neither advised him
that he had a constitutional right to
testify nor determined at the time of
trial that he had_- voluntarily and
knowingly waived that right.
co Whether the right to effective
assistance of counsel under the Sixth and
Fourteenth Amendments requires that
counsel fully and objectively inform the
li
defendant of the costs and benefits both
of testifying and of not testifying on his
or her own behalf.
es
iii
PARTIES IN COURT BELOW
Other than the present Petitioner and
Respondent, there were no parties in the
proceedings in the Wisconsin Supreme Court
whose judgment is sought to be reviewed.
liv
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR ot! re |
PARTIES IN COURT BELOW .. a ag eee
TABLE OF CONTENTS .... +o et & - lta
TABLE OF AUTHORITIES .. ‘+s 6 « « Oe
OPINIONS BELOW ..... J a ee ee ee a
WURDMWEGEION «st tt ae a
CONSTITUTIONAL PROVISIONS
EMVOLVED ...ceee,s a ee ee ee
STATEMENT OF THE CASE .. ae a ee ee a
REASONS FOR ALLOWANCE OF THE WRIT . ., 13
I. RETROACTIVE DENIAL OF THE
RIGHT TO REVIEW OF FEDERAL
CONSTITUTIONAL CLAIMS . ee ta
II. WAIVER OF THE RIGHT TO
Sewweren * 4 yo we ls 4 - 20
A. Granting Certiorari in
this Case Will Resolve the
Widespread Conflict Among
the Lower Courts
Concerning Whether the
Fundamental and Personal
Right to Testify Must Be
Waived Explicitly and on
the Record at Trial . 25
ah A SIP SARIN hal Sl is WR ier Mid ea eet Pe
CONCLUSION
Vv
This Court Should Grant
The Writ To Define The
Duties Of Defense Counsel
In Advising The Accused
About The Decision To
weGtias: «4-6 i « « iy Ba
a ee
vi
TABLE OF AUTHORITIES
Cases
Adams v. United States ex rel.
McCann, 317 U.S. 269 (1942)
Aragon v. State, 760 P.2d 1174
(Idaho 1988) sess
Bergenthal v. State, 72
Wis. 2d 740, 242 N.W.2d
199 (1976) ....e-.-- 10-12, 14,
Boyd v. United States, 586 A.2d
670 (D.C. App. 1991) ;
Boykin v. Alabama, 395 U.S.
238 (1969) a a
Commonwealth v. Siciliano, 471
N.E.2d 1359 (Mass. App. 1984)
Cox v. Louisiana, 379 U.S.
559 (1965)
Culberson v. State, 412 So.2d
1184 (Miss. 1982) ,
Easter v. Endell, 37 F.3d 1343
(8th Cir. 1994) .
Faretta v. California, 422 U.S.
806 (1975) ae a ae a
Ford v. Georgia, 498 U.S.
411 (1991) 'S.%
23
37
16, 17
29, 30
23, 24
31
18
26
19
23
19-21
can wt at A)
vii
Gill v. State, 632 So.2d 660
(Fla. App. 1994)
James v. Kentucky,
341 (1984)
Johnson v. Zerbst,
458 (1938)
Jordan v. Hargett,
(Sth Cir. 1994) .
LaVigne v. State,
(Alaska App. 1990)
(lst Cir. 1993)
Nichols v. Butler,
People v. Curtis,
504 (Colo. 1984)
People v. Simmons,
783 (Mich. 1985)
Phillips v. State,
381 (Nev. 1989)
423 (1959)
Rock v. Arkansas,
466 U.S.
304 U.S.
9g (ea 23, 26;
Jones v. Barnes, 463 U.S. 745 (1983)
34 F.3d 310
788 P.2d 52
, rev’d on
other grounds, 812 P.2d 217 (1991)
Lema v. United States, 987 F.2d 48
NAACP v. Alabama ex rel.
Patterson, 357 U.S. 449 (1958)
953 F.2d
1550 (llth Cir. 1992)
681 P.2d
364 N.W.2d
eS at.
782 P.2d
Raley v. Ohio, 360 U.S.
483 U.S.
. oe /* e 22,
44 (1987)
36
37
20
K
26
31
31
18
24
Sanchez
85 (Wyo.
State v.
denied,
State v.
91 (Neb.
State v.
.2da 169,
157 (1994)
185 Wis
State v.
811 (Idaho App.
State v. James,
485 N.W.2d 436 (Ct. App.),
rev. denied, 491 N.W.2d 766
(1992)
State v. Joyner,
(Conn.
State v.
288 N.W.2d 157 (Ct. App.
rev. denied, 95 Wis.2d 745,
cert. denied,
1016 (1980)
N.W.2d 874,
449 U.S.
State v. Neuman,
77 (W. Va.
State v.
171 (&.C.
State v.
(N.J. 1990)
841 P.2d
154 Wis.2d 387,
453 N.W.2d 186 (Ct. App.),
454 N.W.2d 806 (1990)
Coogan,
El-Tabech, 453 N.W.2d
Escalona-Naranjo,
517 N.W.2d
778 P.2d
Hoffman,
169 Wis.2d 490,
625 A.2d 791
Klimas, 94 Wis.2d 288,
371 S.E.2d
427 S.E.2d
Savage, 577 A.2d 455
31
15
29
31
17
27
15
26
26
36
ix
State v. Simpson, 185 Wis. 2d 772,
519 N.W.2d 662 (Ct. Ap. 1994) .... 26
State v. Wilson, 179 Wis.2d 660,
508 N.W.2d 44 (Ct. App. 1992),
rev. denied, 513 N.W.2d 406 (1994),
cert. denied, 115 §.Ct. 100 (1994) . 31
|
'
Strickland v. Washington, 466 U.S.
668 (1984) raed. oe ele? O4 36
Taylor v. Illinois, 484 U.S.
Ope Careee. Sal oie. 6 6 eee er’ woe EB
Taylor v. State, 843 P.2d 682
(Kan. 1992) . + oe 32
Torres-Arboledo v. State, 524 So.2d
403 (Fla. 1988), cert. denied,
Oe Ae a St aes Se r e rr § |
Underwood v. Clark, 939 F.2d
if fia Rel ee. | ee) ee
United States v. Bernloehr, 833 F.2d
749 (8th Cir. 1987) saa 27
United States v. Joelson, 7 F.3d
174 (9th Cir.), cert. denied,
cee ae ee Cee. es fe Sle ec ee 6 28
United States v. Martinez, 883 F.2d
750 (9th Cir. 1989), vacated, 928
F.2d 1470 (9th Cir.), cert. denied,
aes Gas See Seen we ee we «| | 62 UT
United States v. McMeans, 927
Tome See S608 Bae Seek e+ ce ue s 2
x
United States v. Pennsylvania
Industrial Chemical Corp., 411
Uses Gee Serre) «+6 & See ie ee 6h CUR
United States v. Teague, 953 F.2d
1525 (llth Cir.) (en banc), cert.
denied, 113 S.Ct. i227 (i932) 26, 32, 35,
36
United States v. Vargas, 920 F.2d
167 (2d Cir. 1990), cert. denied
sub nom., Duluc del Rosario v.
United States, 112 S.Ct. 93 (1991). 29
Wilcox v. Leapley, 488 N.W.2d
G34 (8.0. 1934) « «+ « 3 « uw wo sh | ey 3
Constitution, Rules and Statutes
U.S. Conet., @enG: VV. « « « « & & Bye 22
U.S. Conet., amend. VI «+s dy Be Oe Ba
U.S. Conat., amend. XIV i, 3; 13, 1319, 22
26 U,8.0. 9329 7(@} 6 ee et kh we es Oe Se 2
ee UsOsG. Gesesicy) + 6 se ee a 4 eS
20 U.8;:0. Beeee 6 « « 6 o 6 8 s-s e * ee
Sum. Ce. Bs £0s01B) « «4 « + 0 . ee OO
sug. Ct. R. 39.23(6) . « + «= » &0) 2hy Bo
Wis. GEGt. Bese. GS yIA (2) . 2a ee eo S
Wie. SEOG. Bese « A =< ss + oS ae *
xi
Wis. Stat. §940.05(2) (1985-86) .... 5
Wis. Stat. §974.06 3, 10, 11, 13, 15-17
Wis. Gtat. 9974.06(1) ... +s ses fA
Wis. Stat. §974.06(4) .....«. 16, 17
Other Authorities
Annot., Necessity That Waiver of
Accused’s Right to Testify in Own
Behalf Be on the Record, 90 A.L.R.4th
2eo (i396 & £706 BU.) 6 2s te et tl kl elm
Note, Waiver of the Criminal
Defendant’s Right to Testify:
Constitutional Implications,
60 Fordham L. Rev. 175 (1991) .... = 27
on vase eiaDeniatthe
No. 94-
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1994
JON T. LIEGAKOS,
Petitioner,
vs.
STATE OF WISCONSIN,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE WISCONSIN SUPREME COURT
PETITION FOR WRIT OF CERTIORARI
OPINIONS BELOW
The order of the Wisconsin Supreme
Court denying permissive review is
unreported.
That order is reprinted at
2
Appendix A (App. la) to this Petition.
The decision of the Wisconsin Court
of Appeals, which affirmed the order of
the circuit court was unreported. That
decision is reprinted at Appendix B (App.
lb-5b) to this Petition.
The decision and order of the
Wisconsin Circuit Court denying Liegakos’
motion for post-conviction relief were
unreported. They are reprinted at
Appendix C (lc-llc) of this Petition.
JURISDICTION
The order of the Wisconsin Supreme
Court denying permissive review was
entered on October 24, 1994. This Court’s
jurisdiction is invoked under 28 U.S.C.
§§1257(a) & 2101(c).
Cee meee Cann ee
etiteeres SOPs thendt o Uti aterensel
itt Sa aden
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ROA ARE he ONIN T aG S ae doe ei N!
Bie ie ela tes:
3
CONSTITUTIONAL PROVISIONS INVOLVED
This petition concerns the construc-
tion and application of the Due Process
Clause of the Fourteenth Amendment to the
United States Constitution which provides:
No state shall ... deprive any
person of life, liberty, or
property, without due process of
iF Pee
U.S. Const. amend. XIV.
This petition also concerns’ the
construction and application of the Self-
incrimination and Due Process Clauses of
the Fifth Amendment to the United States
Constitution which provide:
No person ... shall be compelled
in any criminal case to be a
witness against himself, nor be
deprived of life, liberty, or
property, without due process of
LOB cess
U.S. Const. amend. V.
This petition also. concerns’ the
construction and application of the
Compulsory Process and Assistance of
Counsel Clauses of the Sixth Amendment to
the United States Constitution which
provide:
In all criminal prosecutions,
the accused shall enjoy the
right ... to have compulsory
process for obtaining witnesses
in his favor, and to have the
Assistance of Counsel for his
defence.
U.S. Const. amend. VI.
STATEMENT OF THE CASE
By criminal complaint filed February
18, 1986, Jon T. Liegakos was charged with
the first degree murder of Richard
Lundgren while using a dangerous weapon in
violation of Wis. Stat. §§940.01 &
939.63(1)(a)(2). That charge arose from a
fight between the two men outside a
Kenosha, Wisconsin tavern. Lundgren died
of stab wounds received during that fight.
Under Wisconsin law at the time, the
5
defendant’s unreasonable but sincere
exercise of his privilege of self-defense
mitigated what would otherwise have been
first-degree murder to manslaughter. See
Wis. Stat. §940.05(2) (1985-86). Defen-
dant’s trial counsel, Terry Rose, relied
upon such imperfect self-defense at trial.
He rested the defense case without
Liegakos having testified, however, and
without an on-the-record waiver by
Liegakos of his right to testify.
After a three-day trial, the jury
found Liegakos guilty as charged on April
17, 1986, and the trial judge sentenced
him to life imprisonment.
On direct appeal, the Wisconsin Court
of Appeals affirmed the conviction in an
unpublished decision dated September 23,
1987, and the Wisconsin Supreme Court
denied review.
On November 23, 1992, Liegakos filed
6
a motion for post-conviction relief
pursuant to Wis. Stat. §974.06. That
motion alleged that Liegakos had been
denied his right to testify at trial when
the court neither advised him of his right
to testify, obtained a personal, on-the-
record waiver of that right, or otherwise
determined at the time of trial that trial
counsel’s failure to call him as a witness
reflected Liegakos’ knowing and voluntary
waiver of that right. The motion also
alleged that Liegakos was denied his right
to the effective assistance of counsel due
to trial counsel’s failure adequately to
advise him concerning his’ right to
testify, counsel’s failure adequately to
investigate and to present’ relevant
exculpatory evidence at trial, and
counsel’s other failures not at issue
here. None of these claims had been
raised on Liegakos’ direct appeal.
The circuit court, Hon. Mary
Wagner-Malloy, presiding, held an
evidentiary hearing on January 22, 1993.
Attorney Rose testified at that hearing
that he first advised Liegakos, prior to
trial, that he should not testify. Rose
discussed the issue with him on a number
of occasions, and claimed that Liegakos
agreed not to testify.
Rose further claimed that he
discussed "the pros and cons" of
testifying with Liegakos. Yet, when
specifically asked what he said to
Liegakos about testifying, Rose merely
restated the reasons why he believed
Liegakos should not testify.
Liegakos testified that he told Rose
a number of times that he wanted to
testify because he was the only one who
knew what- he was thinking and feeling at
the time of the fight. Although Rose told
8
him the final decision whether to testify
was up to Liegakos, Rose was determined
that Liegakos not testify and spent most
of their meetings trying to convince
Liegakos of his point of view. lLiegakos
finally gave in at the beginning of trial
because "I had to agree with him ‘cause he
was my lawyer and I thought he knew best."
Rose never suggested why Liegakos
might in fact want to testify. He never
informed Liegakos, for instance, that the
jury might hold it against him for not
testifying, nor did he discuss with
Liegakos the problems of proving his
intent at the time of the stabbing without
his testimony. Had Rose discussed these
issues with him, Liegakos would have
insisted on testifying.
Liegakos further testified at the
post-conviction motion hearing concerning
what his testimony would have been, had he
9
been called to testify at his trial. In
summary, he would have explained to the
jury that Lundgren initiated the fight,
and that Liegakos initially took out the
knife and showed it to Lundgren hoping to
avoid a fight by scaring him off.
Liegakos used the knife to stab Lundgren
only after Lundgren had tackled him and
was on top of him, slamming his head into
the cement street and no one responded to
his requests for help. Even then,
Liegakos did not want to kill Lundgren; he
just wanted to hurt him badly enough to
make him stop. By written decision dated
April 27, 1993, Judge Wagner-Malloy denied
the post-conviction motion (App. lc-10c).
The court entered a written order
reflecting that denial on May 20, 1993
(App. llc).
Liegakos timely filed his notice of
appeal to the Wisconsin Court of Appeals
10
on May 27, 1993. His opening brief to
that court raised the same issues asserted
in his §974.06 motion.’
In its response brief to that court,
the state raised for the first time the
question whether Liegakos’ claims were
procedurally barred by his failure to
raise them on direct appeal. The state
recognized that the Wisconsin Supreme
Court previously had held that a defendant
was entitled to review of «constitutional
claims under §974.06 even if he could have
raised those claims on direct appeal. See
Bergenthal v. State, 72 Wis. 2d 740, 242
N.W.2d 199, 202-03 (1976). However, the
* The only §974.06 claims not raised
on appeal concerned trial counsel’s
failure to preserve an objection to
prosecutorial misstatements to the jury
and to offer certain prior statements of
the defendant at trial. The right to
testify and the remaining ineffectiveness
claims were presented to the Court of
Appeals.
11
state asked that Bergenthal be overruled
and moved to bypass the Court of Appeals
so this case could be consolidated with a
pending Wisconsin Supreme Court case which
would address that very issue. lLiegakos
joined the state’s petition to bypass, but
the Wisconsin Supreme Court denied that
petition on November 16, 1993. Briefing
in the Court of Appeals was completed on
November 24, 1993.
On June 22, 1994, the Wisconsin
Supreme Court overruled Bergenthal in
State v. Escalona-Naranjo, 185 Wis.2d 169,
517 N.W.2d 157 (1994). The court there
held for the first time that, absent
"sufficient reason," a defendant may not
raise a constitutional challenge under
§974.06 which could have been raised on
direct appeal. 517 N.W.2d at 164.
After the decision in Escalona-
12
Naranjo, Liegakos sought leave to file
supplemental briefs addressing the effect
of that decision by motion dated July 6,
1994. A copy of that motion is attached
as Appendix D (App. ld-7d). That motion
objected to retroactive application to him
of Escalona-Naranjo's overruling of
Bergenthal as, among other reasons, a
violation of due process (App. 4d).
Although the state did not oppose the
motion, the court of appeals denied it on
July 25, 1994, stating that "supplemental
briefs are not necessary.’ A copy of that
order is attached as Appendix E. (App.
le-2e). On August 24, 1994, that court
summarily affirmed, relying upon the
decision in Escalona-Naranjo (App. 1b-5b).
Liegakos timely petitioned the
Wisconsin Supreme Court for review on
September 23, 1994. That petition
challenged the retroactive application of
13
Escalona-Naranjo as, inter alia, a
violation of the Due Process Clause of the
Fourteenth Amendment. The petition also
raised the same right to testify and
ineffective assistance claims presented to
the court of appeals. The Wisconsin
Supreme Court denied that petition without
comment on October 24, 1994 (App. la).
REASONS FOR ALLOWANCE OF THE WRIT
ae
RETROACTIVE DENIAL OF THE
RIGHT TO REVIEW OF FEDERAL
CONSTITUTIONAL CLAIMS
Section 974.06 of the Wisconsin
Statutes provides a procedure for post-
conviction relief similar to that provided
by 28 U.S.C. $2253. Under §974.06, a
person in custody may, after the time for
direct appeal expires, move the court
14
which imposed sentence to vacate or set
aside that sentence on the grounds, inter
alia, that it "was imposed in violation of
the U.S. constitution or the constitution
or laws of [Wisconsin], [or] that the
court was without jurisdiction to impose
such sentence...." Wis. Stat. §974.06(1).’
2 Wis. Stat. §974.06(1) provides in
full as follows:
(1) After the time for appeal or
postconviction remedy provided
in s. 974.02 has expired, a
prisoner in custody under a
sentence of a court or a person
convicted and placed with a
volunteers in probation program
under s. 973.11 claiming the
right to be released upon the
ground that the -sentence was
imposed in violation of the U.S.
constitution or the constitution
or laws of the state, that the
court was without jurisdiction
to impose such sentence, or that
the sentence was in excess of
the maximum authorized by law or
is otherwise subject to
collateral attack, may move the
court which imposed the sentence
to vacate, set aside or correct
the sentence.
ee een
15
Almost nineteen years ago, in
Bergenthal v. State, 72 Wis.2d 740, 242
N.W.2d 199, 202-03 (1976), the Wisconsin
Supreme Court held that criminal
defendants were entitled to judicial
consideration of constitutional challenges
to their convictions and incarceration
under Wis. Stat. §974.06 "[e]ven though
the issue might properly have been raised"
on the defendant’s direct appeal. For
eighteen years, the lower courts’ in
Wisconsin consistently followed that
holding. E.g., State v. James, 169 Wis.2d
490, 485 N.W.2d 436 (Ct. App.), rev.
denied, 491 N.W.2d 766 (1992); State v.
Coogan, 154 Wis.2d 387, 453 N.W.2d 186,
192 (Ct. App.), rev. denied, 454 N.W.2d
806 (1990)N.W.2d ; State v. Klimas, 94
Wis.2d 288, 288 N.W.2d 157, 162-63 (Ct.
App. 1979), rev. denied, 95 Wis.2d 745,
292 N.W.2d 874, cert. denied, 449 U.S.
16
1016 (1980).
Liegakos thus was entitled to review
of all of his §974.06 claims under the law
in effect throughout the time of his
conviction and sentence, his direct
appeal, his §974.06 motion, and, indeed,
up until the decision in State vv.
Escalona-Naranjo, 185 Wis.2d 169, 517
N.W.2d 157 (1994), decided 7 months after
briefing was completed in the court of
appeals.
Only in Escalona-Naranjo did the
Wisconsin Supreme Court overrule
Bergenthal and reinterpret the "successive
petitions" provision of §974.06 in such a
Manner as to require an assertion of
"sufficient reason" for not raising one’s
constitutional claims on a prior direct
17
appeal.’ The lower Wisconsin courts
following Bergenthal and the plain
language of the statute had construed
§974.06(4) as imposing such a requirement
only where the defendant had omitted the
Claim from a prior motion under §974.06.
E.g. James, supra. Liegakos had filed no
> The provision reinterpreted in
Escalona-Naranjo, Wis. Stat. §974.06(4),
provides as follows:
(4) All grounds for relief
available to a person under this
section must be raised in his or
her original, supplemental or
amended motion. Any ground
finally adjudicated or not so
raised, or knowingly, volun-
tarily and intentionally waived
in the proceeding that resulted
in the conviction or sentence or
in any other proceeding the
person has taken to secure
relief may not be the basis for
a subsequent motion, unless the
court finds a ground for relief
asserted which for sufficient
reason was not asserted or was
inadequately raised in the orig-
inal, supplemental or amended
motion.
18
such prior §974.06 motion.
Defendants do not, of course, have a
due process right to appeal or post-
conviction relief. Having once assured
defendants such as Liegakos that they
would suffer no loss of their
constitutional claims due to a failure to
raise an available issue on direct appeal,
however, due process should have barred
the Wisconsin courts from imposing such a
loss once those defendants acted on that
assurance. Ck. United States Vv.
Pennsylvania Industrial Chemical Corp.,
411 U.S. 655, 670-75 (1973); Cox v.
Louisiana, 379 U.S. 559, 568-73 (1965)
(conviction for picketing near courthouse
violated due process where police did not
object to location and in effect told
defendants they could meet where they
did); Raley v. Ohio, 360 U.S. 423, 437-40
(1959) (convictions for refusing to answer
19
certain questions violated due process
where defendants told their refusals were
privileged; irrelevant that defendants may
have refused anyway); see U.S. Const.
amend. XIV.
Although not specifically basing its
holding on due process grounds, this Court
essentially held as much in Ford v.
Georgia, 498 U.S. 411 (1991) (retroactive
application of new contemporaneous
objection rule not adequate and
independent state ground barring federal
review of federal constitutional claim) .‘
As the Court there held:
[Tjhe sufficiency of [a state
procedural] rule to limit all
review of a constitutional claim
itself depends upon the timely
exercise of the local power to
set procedure. "Novelty in pro-
cedural requirements cannot be
permitted to thwart review in
* But see Easter v. Endell, 37 F.3d
1343, 1345-47 (8th Cir. 1994) (construing
Ford as based in due process).
20
this Court applied for by those
who, in justified reliance upon
prior decisions, seek vindi-
cation in state courts of their
federal constitutional rights."
498 U.S. at 423, quoting NAACP v. Alabama
ex rel. Patterson, 357 U.S. 449, 457-58
(1958). See also James v. Kentucky, 466
U.S. 341, 348-51 (1984) (only "firmly
established and regularly followed state
practice" may be interposed by a state to
prevent subsequent Supreme Court review of
a federal constitutional claim).
Because the Wisconsin Court of
Appeals’ refusal to consider Liegakos’
federal constitutional claims rested upon
the retroactive application of a radically
new state procedural rule, that decision
violates due process and directly
conflicts with the spirit, if not the
holdings, of all applicable decisions of
this Court. Review by this Court thus is
appropriate. See Sup. Ct. R. 10.1l(c).
21
il.
WAIVER OF THE RIGHT TO
TESTIFY
This case raises important issues
regarding the nature of the waiver of the
constitutional right to testify on one’s
own behalf and the related duties of court
and counsel. These issues have seriously
divided the lower courts and accordingly
present the paradigmatic case for resolu-
tion by this Court. See Sup. Ct. R.
10.1(b) & (c).°
Liegakos did not personally waive his
vig to testify on the record at the time
of trial. Neither his trial counsel nor
the trial court fully advised Liegakos
> The Wisconsin courts’ retroactive
application of the new procedural rule
announced in Escalona-Naranjo does not, of
course, bar this Court’s review of
Liegakos’ right to testify claims. Ford,
supra.
22
concerning his right to testify and the
trial court made no effort to ensure that
his silence was a knowing and voluntary
waiver of that right. In fact, it was
not.
| It is now well-established that an
| accused’s right to testify is a personal
and fundamental constitutional right. See
Rock v. Arkansas, 483 U.S. 44, 52 (1987).
That right is derived from the Fourteenth
Amendment’s guarantee that no one shall be
deprived of liberty without due process of
law, from the compulsory process clause of
the Sixth Amendment, which grants a
defendant the right to call witnesses in
his favor, and as a necessary corollary to
the Fifth Amendment’s guarantee against
compelled testimony. Id. at 51-53.
The question remains, however,
concerning exactly how this right may be
waived. This Court has stated in dicta
23
that trial counsel may not waive the
accused’s right to testify. See Jones v.
Barnes, 463 U.S. 745, 751 (1983)
(defendant makes ultimate decision whether
to testify). It likewise has held that
Similarly personal and fundamental rights
may not be waived without an on-the-record
determination by the trial court, at the
time of the purported waiver, that the
waiver is knowing and voluntary. See,
e.g., Taylor v. Illinois, 484 U.S. 400,
417-18 & n.24 (1988) ("basic rights that
the attorney cannot waive without the
fully informed and publicly acknowledged
consent of the client" include the right
to plead not guilty and have a trial, the
right to a jury trial, and the right to be
present during trial); Faretta Vv.
California, 422 U.S. 806, 835 (1975)
(right to counsel); Boykin v. Alabama, 395
U.S. 238, 242-44 (1969) (right to trial);
24
Johnson v. Zerbst, 304 U.S. 458 (1938)
(right to counsel); Adams v. United States
ex rel. McCann, 317 U.S. 269, 277-78
(1942) (right to jury trial). The Court
also has held that waiver of such rights
may not be presumed from a silent record.
E.g., Boykin, 395 U.S. at 242; Johnson,
304 U.S. at 464.
Although these requirements for
waiver would appear to apply at least as
strongly to the right to testify at trial,
see Rock, 483 U.S. at 52 ("[{A]n accused’s
right to present his own version of events
in his own words" is "f{e]ven more
fundamental to a personal defense that the
right of self-representation"), the Court
has not yet addressed such issues in the
specific context of that right.
A number of lower courts have
addressed such issues as whether the
defendant must be fully informed by
25
counsel or by the court of the right and
relevant considerations prior to deciding
whether to waive it, whether the defendant
must personally waive that right on the
record at the trial, and whether the trial
court must determine the validity of the
waiver at the time of trial. The result
is a hopeless morass of differing
standards and analyses which only this
Court can clarify and resolve. See gener-
ally, Annot., Necessity That Waiver of
Accused’s Right to Testify in Own Behalf
Be on the Record, 90 A.L.R.4th 586 (1991 &
1994 Supp.), and cases cited therein.
A. Granting Certiorari in this Case Will
Resolve the Widespread Conflict Among
the Lower Courts Concerning Whether
the Fundamental and Personal Right to
Testify Must Be Waived Explicitly and
on the Record at Trial
A brief review of some of the lower
court decisions which have addressed this
26
issue shows a tangled web of different
approaches. A number of decisions have
held that, given the personal and
fundamental nature of the right, an
on-the-record determination by the trial
court that waiver of the right to testify
is knowing and voluntary is required at
the time of trial. See, e.g., People v.
Curtis, 681 P.2d 504 (Colo. 1984);
Culberson v. State, 412 So.2d 1184 (Miss.
1982); State v. Ray, 427 S.E.2d 171, 174
(S.C. 1993); State v. Neuman, 371 S.E.2d
77 (W. Va. 1988); cf., United States v.
Teague, 953 F.2d 1525, 1541-47 (11th Cir.)
(en banc) (Clark, J., concurring and dis-
senting), cert. denied, 113 S.Ct. 127
(1992); United States v. Martinez, 883
F.2d 750, 761-74 (Stn Cie. 1989)
(Reinhardt, J., dissenting), vacated, 928
F.2d 1470 (9th Cir.), cert. denied, 501
U.S. 1249 (1991); State v. Simpson, 185
27
Wis. 2d 772, 519 N.W.2d 662, 667-68 (Ct.
Ap. 1994) (Schudson, J., concurring in
part, dissenting in part). See also Note,
Waiver of the Criminal Defendant’s Right
to Testify: Constitutional Implications,
60 Fordham L. Rev. 175 (1991). Such a
procedure is consistent with the
requirements for waiver of other personal
and fundamental rights noted previously.
Other courts, however, follow the so-
called "demand rule," finding that the
right to testify is waived unless it is
Specifically asserted by the accused.
E.g., United States v. McMeans, 927 F.2d
162 (4th Cir. 1991); United States v.
Martinez, 883 F.2d 750 (9th Cir. 1989);
United States v. Bernloehr, 833 F.2d 749,
751-52 (8th Cir. 1987); State v. Joyner,
625 A.2d 791, 807-08 (Conn. 1993); People
v. Simmons, 364 N.W.2d 783 (Mich. 1985);
Wilcox v. Leapley, 488 N.W.2d 654, 659
28
(S.D. 1992).
These courts view the nature of the
right to testify as essentially "a trial
decision with constitutional
implications," United States v. Joelson,
7 F.3d 174, 178 (9th Cir.), cert. denied,
114 S.Ct. 620 (1993), and seem to require
that the accused interrupt the lawyers and
judge to assert his or her right, see
e.g., id. ("{I]f the defendant wants to
testify, he can reject his attorney’s
tactical decision by insisting on
testifying, speaking to the court, or
discharging his lawyer" (citation
omitted) ). In essence, these courts
conclusively presume waiver from a silent
record.
Still other courts recognize,
however, that an accused understandably
might feel too intimidated to risk con-
tempt charges by speaking out of turn.
29
E.g., Underwood v. Clark, 939 F.2d 473,
476 (7th Cir. 1991). While not requiring
an on-the-record colloquy and
determination by the trial judge, these
courts likewise reject the "demand rule’s"
finding of waiver from a silent record.
See id. Rather, these courts permit a
post-trial challenge to the conviction on
the grounds that the defendant did not in
fact knowingly and voluntarily waive the
right to testify. See, e.g., Jordan v.
Hargett, 34 F.3d 310, 314 (5th Cir. 1994);
Underwood, 939 F.2d at 476; Boyd v. United
States, 586 A.2d 670, 677-78 (D.C. App.
1991). See also. United States v. Vargas,
920 F.2d 167 (2d Cir. 1990), cert. denied
sub nom., Duluc del Rosario v. United
States, 112 S.Ct. 93 (1991); State v. El-
Tabech, 453 N.W.2d 91, 95 (Neb. 1990);
Sanchez v. State, 841 P.2d 85, 88-89 (Wyo.
1992). Even these courts, however, differ
30
as to what evidence must be presented to
Support such a claim. Compare Underwood,
939 F.2d at 475-76 (affidavit of defendant
that attorney denied his request’ to
testify alone insufficient to require
hearing), with Boyd, 586 A.2d at 671-72,
677-78 (defendant’s statements after
guilty verdict and at sentencing that she
wanted to testify but lawyer would not let
her mandated hearing on dnkwnx issue).
Even those courts which do not
require an on-the-record colloquy or
waiver strongly disagree over the
propriety of such a practice.
A number of courts, while not
requiring such an on-the-record colloquy
and determination at trial, recommend that
one be made. E.g., LaVigne v. State, 788
P.2d 52, 55 (Alaska App. 1990), rev’d on
other grounds, 812 P.2d 217 (1991); Boyd
v. United States, 586 A.2d 670, 674 (D.C.
n= Pile Se tn hasittz's
31
App. 1991) (court leaves open decision
whether trial court must conduct colloquy
on the record, but strongly recommends
such a procedure); fTorres-Arboledo v.
State, 524 So.2d 403, 411 n.2 (Fla. 1988),
cert. denied, 488 U.S. 901 (1988); State
v. Hoffman, 778 P.2d 811, 814 (Idaho App.
1989); Commonwealth v. Siciliano, 471
N.E.2d 1359, 1362 (Mass. App. 1984);
Phillips v. State, 782 P.2d 381, 382 (Nev.
1989); State v. Wilson, 179 Wis.2d 660,
508 N.W.2d 44, 48 n.3 (Ct. App. 1992),
rev. denied, 513 N.W.2d 406 (1994), cert.
denied, 115 S.Ct. 100 (1994); Sanchez, 841
P.2d at 89.
Other courts, however, have gone
beyond holding simply that such a practice
is unnecessary and have stated that it may
actually interfere with the defendant’s
right to testify, see, e.g., State v.
Savage, 577 A.2d 455, 473 (N.J. 1990), or
32
defense counsel’s trial strategy, see,
e.g., Simmons, 364 N.W.2d at 785; Wilcox,
488 N.W.2d at 659.
A final approach to this dilemma is
that taken by the Eleventh Circuit in
United States v. Teague, 953 F.2d 1525
(llth Cir.), cert. denied, 113 S.Ct. 127
(1992). The court there held that,
because it is primarily the responsibility
of defense counsel to advise the defendant
concerning the right to testify and
thereby to ensure that the right is
protected, claims that one’s right to
testify was violated should be analyzed
under the standards for ineffective
assistance of counsel. Id. at 1534-35.
See also, Taylor v. State, 843 P.2d 682
(Kan. 1992) (no duty of trial court to
address silent defendant re waiver, but
defendant may raise ineffectiveness of
counsel); Savage, 577 A.2d at 473 (same).
ee
SPMMRER RRNA SI 27
Ted ie Sah ft Sethe iit wail Beene ee
33
Given the plethora of conflicting
lower court decisions and analyses
concerning the waiver of one’s right to
testify, review by this Court is amply
justified. See Sup. Ct. R. 10.1(b) & (Cc).
There is no apparent reason to conclude
that the lower courts will soon agree ona
general analysis for addressing waiver of
the right to testify. Each of the con-
flicting lines of cases rests upon what
its proponents view as persuasive rea-
soning. The differences between these
conflicting modes of analysis thus will
not soon, if ever, be overcome absent
resolution by this Court.
B. This Court Should Grant The Writ To
Define The Duties Of Defense Counsel
In Advising The Accused About The
Decision To Testify
Related to defining the duty of the
trial court in advising the accused of the
34
right to testify and assuring a knowing
and voluntary waiver is the question of
the role of defense counsel in advising
the accused of those rights. Specif-
ically, is it enough that the client makes
the ultimate decision without being
coerced, or must the lawyer ensure that
the decision is a fully informed one?
This question as well has produced serious
conflict among the lower courts.
Trial counsel here testified at the
post-conviction A | hearing that he
informed Liegakos of several reasons why
he should not testify, that he informed
Liegakos that Liegakos had the final say
concerning whether he testified, and that
Liegakos ultimately acquiesced in
counsel’s decision that he not testify.
However, counsel did not discuss’ the
dangers of Liegakos’ not testifying, and
therefore did not provide him with
a3
sufficient information to make a knowing
and voluntary decision.
If defense counsel is’ primarily
responsible for advising the accused of
the right to testify or to decline to
testify, then a defendant’s right to
testify may be violated when the duty is
breached by defense counsel. See Teague,
953 F.2d at 1534; Nichols v. Butler, 953
F.2G 3350, 1552 (lith Cir. 1992).
In Teague, the court observed that
defense counsel bears the primary
responsibility for advising the defendant
not only of his right to testify or not to
testify and that it is ultimately for the
defendant himself to decide, but also must
advise the defendant of "the strategic
implications of each choice." 953 F.2d at
1533. The court explained that:
[t]his advice is crucial because
there can be no effective waiver
of a fundamental constitutional
36
right unless there is an
"intentional relinquishment or
abandonment of a known right or
privilege." '
953 F.2d 1533 (footnote omitted), quoting
Johnson v. JZerbst, 304 U.S. 458, 464
(1938) (emphasis added by Teague court).
That court went on to explain that
counsel’s failure to ensure that the
defendant’s right to testify is protected
and that any waiver of that right is
knowing and voluntary would constitute
deficient performance under Strickland v.
Washington, 466 U.S. 668 (1984). See
Teague, 953 F.2d at 1534. Accord, Savage,
577 A.2d at 473 ("counsel’s responsibility
includes advising a defendant of the bene-
fits inherent in exercising [the right to
testify] and the consequences inherent in
waiving it").
Other courts, however, have suggested
that counsel’s obligation is fulfilled
37
when the defendant knows that he or she
could testify but acquiesces in counsel’s
decision. E.g., Gill v. State, 632 So.2d
660, 661 (Fla. App. 1994); Aragon v.
State, 760 P.2d 1174, 1178-79 (Idaho
1988).
At least one court has even gone so
far as to suggest that the only basis for
an ineffective assistance of counsel claim
would be if defense counsel was shown to
have coerced the accused into making the
decision not to testify or otherwise
prevented the defendant from testifying.
See Lema v. United States, 987 F.2d 48,
52-53 (lst Cir. 1993).
Once again, there is no reason to
believe that the lower courts will soon
resolve this conflict on their own.
Without resolution by this Court,
therefore, ultimate protection of an
accused’s right to testify will turn on
38
the happenstance of what jurisdiction
happens to have filed the charge.
CONCLUSION
For the reasons stated the petition
for a writ of certiorari to the Supreme
Court of Wisconsin should be granted.
Dated at Milwaukee, Wisconsin,
January _, 1995.
Respectfully submitted,
ROBERT R. HENAK
Counsel of Record
SHELLOW, SHELLOW & GLYNN, S.C.
222 East Mason Street
Milwaukee, Wisconsin 53202
(414) 271-8535
Attorneys for Petitioner
F: \DATA\WP60\J-L\LIEGAKOS\CERT\JTL12204.BRZ
breathe? Soleo rats mo
la
APPENDIX A
STATE OF WISCONSIN
IN SUPREME COURT
Case No. 93-1523
STATE OF WISCONSIN,
Plaintiff-Respondent,
V.
JON T. LIEGAKOS,
Defendant-Appellant-Petitioner.
October 24, 1994
A petition for review pursuant to
sec. 808.10, Stats., having been filed on
behalf of defendant-appellant-petitioner,
Jon T. Liegakos, and considered by the
court, |
IT IS ORDERED that the petition for
review is denied, without costs.
lb
APPENDIX B
STATE OF WISCONSIN
COURT OF APPEALS
DISTRICT If
Case No. 93-1523
STATE OF WISCONSIN,
Plaintiff-Respondent,
V.
JON T. LIEGAKOS,
Defendant-Appellant.
August 24, 1994
Before Anderson, P.J., Nettesheim and
Snyder, JJ.
Jon Liegakos appeals from a trial
court order denying his § 974.06, Stats.,
motion. Based on our review, at
conference, of the briefs and record, we
2b
conclude that this case is appropriate for
summary disposition. See RULE 809.21,
Stats. We affirm the order of the circuit
court.
We do not reach the merits of
Liegakos’ challenge to the order denying
his § 974.06, Stats., motion because we
conclude that § 974.06(4) as construed in
the recent supreme court decision in State
v. Escalona-Naranjo, ___ Wis.2d yee
N.W.2d 157 (1994), precludes Liegakos from
litigating issues he should have raised in
his direct appeal. Escalona-Naranjo makes
clear that "the defendant should raise the
constitutional issues of which he or she
is aware as part of the original
postconviction proceedings." Id. at __,
517 N.W.2d at 164. It further explains
that “the plain language of subsection (4)
[of S 974.06] ... requires a sufficient
3b
reason to raise a constitutional issue in
a sec. 974.06 motion that could have been
raised on direct appeal. Escalona-
Naranjo, Wis.2d at , 517N.W.2d at
164.
Liegakos’ conviction was affirmed in
a RULE 809.30, Stats., appeal in 1987.
However, Liegakos did not claim on appeal
that trial counsel rendered ineffective
assistance or that he was deprived of the
Opportunity to testify. Liegakos has not
shown a sufficient reason for his failure
to raise those claims in his direct
appeal.’
Liegakos contends that it was the
State’s burden to argue in the circuit
court that § 974.06(4), Stats., barred him
* In an order dated July 25, 1994, we
denied Liegakos’ request to file supple-
mental briefs addressing State e;
Escalona-Naranjo, _Wis.2d __, 517
N.W.2d 157 (1994).
4b
from pursuing claims he should have raised
on direct appeal. We cannot agree that
the statute places such a burden upon the
State. The statute states that "La]ny
ground ... not so raised ... in the
proceeding that resulted in the ...
sentence may not be the basis for a
subsequent motion, unless the court finds
a ground for relief asserted which for
sufficient reason was not asserted ... in
the original, supplemental or amended
motion." Id. The statute does nee require
the State to raise this; rather, the clear
inference is that the movant must provide
a sufficient reason before any new ground
may be addressed. Liegakos did not
provide such a reason to the circuit
court, and he does not provide such a
reason on appeal. Therefore, we conclude
that Liegakos did not Satisfy the dictates
Of § 974.06, as explained by Escalona-
5b
Naranjo.
Upon the foregoing reasons,
IT IS ORDERED that the order of the
Circuit court is summarily affirmed,
pursuant to RULE 809.21, Stats.
leo
APPENDIX C
STATE OF WISCONSIN
CIRCUIT COURT WALWORTH COUNTY
STATE OF WISCONSIN,
Plaintiff,
Post-Conviction
vs. Motion
JON T. LIEGAKOS, Case No. 86-CF-70
Judge Mary Wagner-
Malloy
Defendant.
The above captioned matter came on
for a post-conviction motion hearing on
January 22, 1993. Bruce Becker, Assistant
District Attorney, appeared on behalf of
the State of Wisconsin. The defendant
appeared in person and was represented by
Robert Henak and James Shellow, his attor-
neys.
Jon Liegakos was convicted of lst
Degree homicide after a jury trial which
concluded on April 17, 1986. His convic-
2c
tion was appealed and on September 23,
1987 the Court of Appeals affirmed in an
unpublished decision. The Supreme Court
denied a petition for review. This motion
for post-conviction relief pursuant to
Wis. Stat. 974.06 was filed November 23,
1992 in this Court. The defendant raises
two basic claims. First, that Mr.
Liegakos was denied the right to testify
depriving him of his constitutional right
to present a defense. Second, that the
defendant was denied effective assistance
of counsel.
The motion came on to be heard Janu-
ary 22, 1993. Briefs have been submitted.
After consideration of all the testimony,
briefs, and record the Court issues the
following decision.
VIOLATION OF RIGHT TO TESTIFY
At the hearing of the motion Mr.
Liegakos testified that the decision to
3c
testify at trial was left to him. He
discussed it five or six times on three
different occasions with his attorney.
Mr. Rose advised him to not take the stand
but made it clear to him it was his deci-
Sion. He understood clearly that he was in
charge of whether he chose to take the
stand.
Mr. Rose’s testimony agreed with that
of Mr. Liegakos’s. He explained to the
defendant the advantages and disadvantages
of testifying. He reviewed Mr. Liegakos’
desire to testify one last time when the
State rested. Mr. Liegakos decided know-
ingly and voluntarily not to testify. Mr.
Liegakos was not denied his constitutional
right to present his defense by testifying
in his own behalf and this record clearly
meets with the standard set in State v.
Albright, 96 W.2122 [sic], 291 NW 2d 487
(1980).
4c
DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL
Strickland v. Washington, 466 US 668
(1984) sets out the test for determining
effective assistance of counsel as fol-
lows:
First, the defendant must show that
counsel’s performance was deficient. This
requires showing that counsel made errors
so serious that counsel was not function-
ing as the "counsel" guaranteed the defen-
dant by the Sixth Amendment. Second, the
defendant must show that the deficient
performance prejudiced the defense. This
requires showing that counsel’s errors
were so serious as to deprive the defen-
dant of a fair trial, a trial whose result
is reliable. Unless a defendant makes
both showings it cannot be said that the
conviction resulted from a breakdown in
the adversary process that renders the
result unreliable. Id. at 687. To meet
ae
the first step of the test the defendant
offers the following in their motion:
a. Mr. Liegakos’ trial counsel
failed to advise him con-
cerning his right to tes-
tify in a manner sufficient
for Mr. Liegakos knowingly
: and voluntarily to have
: waived that right.
b. The prosecutor at trial
relied heavily on the tes-
timony of Sonya Rogganbuck,
the bar manager, to demon-
: strate to the jury that Mr.
| Liegakos did not in fact
believe that be had to stab
Lundgren in self-defense.
According to her testimony,
Mr. Liegakos called her at
the bar after the stabbing
and said something to the
effect that "This kid was
: hassling me, so I had to
| stab him. He gave me a big
shiner so I had to stab
twice more."
1) failure of Attorney
Rose to cross-examine
Rogganbuck,
1i) failure by Rose to
investigate via
Liegakos and Schuchow,
6c
iii) failure to question
Tom Liegakos “and
Schuchow in trial
about Rogganbuck’s
statement
At least twice during its
rebuttal argument, the
state misstated the law
related to imperfect self-
defense manslaughter. De-
fendant’s trial counsel
promptly objected each time
and subsequently filed a
post-conviction motion
seeking a new trial on that
ground, but failed to move
for a mistrial as is re-
quired to preserve the is-
sue for appeal. As a re-
sult, the Court of Appeals
deemed the issue to have
been waived in direct ap-
peal.
In a recorded statement
following his arrest, Mr.
Liegakos told police offi-
cer Bronk that he origi-
nally intended to use the
-knife only as a deterrent
or like brass'~ knuckles,
that he did not want to
Stab anyone, and that he
showed the knife to Mr.
Lundgren before the fight
to warn him off. It was
only after Lundgren began
bashing Mr. Liegakos’ head
into the concrete that Mr.
7c
Liegakos" gorged [sic] him
like in the stomach" in
order to make him _ stop.
Mr. Liegakos made a similar
statement to Sergeant
Callahan. Trial counsel,
however, failed to offer
these statements as evi-
dence at trial.
This Court has previously discussed
the issue of Mr. Liegakos’ right to tes-
tify. This Court is convinced that the
defendant made that decision freely, vol-
untarily and knowingly. Upon further
examination the position that Mr. Rose
took with his client, that it would not be
to the defendant’s benefit to testify, was
absolutely reasonable in view of the facts
of this case. Mr. Liegakos’ demeanor,
appearance as a witness, prior inconsis-
tent statement to police officers and to
his attorney were all factors that could
lead Mr. Rose to knowledgeably hold the
Opinion he had about his client taking the
stand.
8c
Attorney Rose testified as to his
reasons for not cross examining
Rogganbuck. Mr. Liegakos, defendant,
confirmed the accuracy of her report. The
circumstances of the testimony emphasized
the truthfulness of her testimony and to
question her about her relationship with
the deceased could have permitted much
Sympathy evoking information to be pre-
sented to the jury.
Mr. Rose’s reasoned decision to not
cross examine Mrs. Rogganbuck was a rea-
sonable tactical decision.
Mr. Rose did not move for mistrial
during the closing argument when on at
least two occasions the prosecution mis-
Stated the law. Mr. Rose did object and
state the reason for objection. Judge
Breitenbach did instruct the jury on the
law properly. Because Mr. Rose did not
move for mistrial the Appellate Court
9c
would not review.
The obligation of defense counsel is
to obtain for his client a fair trial, not
to preserve every issue appealable even
when it has caused no unfairness or preju-
dice. Mr. Rose’s decision not to move for
mistrial was knowledgeable based on the
law and reasonable tactically. The prose-
cution’s error was corrected after Rose’s
objection as it should have been in the
interest of justice.
The rules of evidence do not permit
admission of Mr. Liegakos’ statement to
the police officers when offered by the
defense. In this trial such statements
would be inadmissable [sic] hearsay. This
argument by the defendant is totally with-
Out merit.
As to each and every issue raised by
defendant’s counsel there is no showing
that the first prong of the Strickland
10c
test is met. The Court is not convinced
first, of any error, moreover "error so
serious counsel was not functioning as the
‘counsel’" guaranteed the detendins by the
Sixth Amendment. Furthermore, there _
no showing by the second test that the
defendant was denied a fair trial based on
the claimed errors.
For all of these reasons the motion
for post-conviction relief pursuant to the
Wis. Stat. 974.06 is denied.
Dated this 27 day of April, 1993.
BY THE COURT:
inZ
Mary Wagner-Malloy
Circuit Court Judge
Branch 6
lic
STATE OF WISCONSIN
CIRCUIT COURT WALWORTH COUNTY
STATE OF WISCONSIN,
Plaintiff,
vs. Case No. 86-CF-70
JON T. LIEGAKOS,
Defendant.
ORDER
For the reasons stated in this
Court’s decision dated April 27, 1993, the
defendant’s motion for post-conviction
relief pursuant to Wis. Stat. §974.06 is
DENIED.
Dated at Kenosha, Wisconsin this 20
day of May, 1993.
By the Court:
/s/
Hon. Mary: Wagner-Malloy
Circuit Court Judge
ld
APPENDIX D
STATE OF WISCONSIN
COURT OF APPEALS
DISTRICT II
Case No. 93-1523
STATE OF WISCONSIN,
Plaintiff-Respondent,
V.
JON T. LIEGAKOS,
Defendant-Appellant.
MOTION FOR LEAVE TO
FILE SUPPLEMENTAL BRIEFS
Jon T. Liegakos, by undersigned coun-
sel, respectfully moves this Court pursu-
ant to Wis. Stat. (Rule) 809.14 for the
entry of an Order permitting the parties
to submit supplemental briefs to address
the effect of State v. Escalona-Naranjo,
Case No. 92-0846 (Wis. June 22, 1994), and
State v. Braun, Case No. 91-0923 (Wis.
2d
June 22, 1994), on this case.
As grounds for this motion, Mr.
Liegakos states as follows:
Sa This case is before the Court on
appeal from the circuit court’s denial of
Mr. Liegakos’ motion for post-conviction
relief, filed pursuant to Wis. Stat.
§974.06. Briefing in this Court was com-
pleted on November 29, 1993.
ra As currently briefed, the case
presents issues concerning whether Mr.
Liegakos was denied his constitutional
rights to testify on his own behalf and to
effective assistance of counsel. In addi-
tion, the state raised, for the first time
on this appeal, the issue whether Wis.
Stat. §974.06(4) barred Mr. Liegakos from
raising these issues. While recognizing
that its argument was barred by binding
authority in Bergenthal v. State, 72 Wis.
3d
2d 740, 242 N.W.2d 199, 203 (1976), the
state raised the issue in anticipation of
a bypass petition to the Supreme Court.
as Mr. Liegakos joined the state’s
subsequent bypass petition. However, the
Supreme Court denied that petition by
order dated November 16, 1993.
4. On June 22, 1994, the Wisconsin
Supreme Court overruled Bergenthal in
State v. Escalona-Naranjo, Case No. 92-
0846 (Wis. June 22, 1994). In the course
of that decision, and in the companion
case of State v. Braun, Case No. 91-0923
(Wis. June 22, 1994), the Court also dis-
cussed the purpose of Wis. Stat. §974.06
and the meaning of the "sufficient reason"
language in Wis. Stat. §974.06(4).
Ss Mr. Liegakos believes that sup-
plemental briefs discussing the effect of
Escalona-Naranjo and Braun would assist in
—
4d
refining the issues to be decided in this
case and to ensure that he has a full and
fair opportunity to address the radical
change in the law accomplished in those
decisions. Mr. Liegakos anticipates that
his supplemental brief would address (1)
whether Escalona-Naranjo’s reconstruction
of §974.06(4) should be applied retroac-
tively to him in light of his reasonable
reliance upon 18 years of binding Supreme
Court precedent to the effect that he was
entitled to bring these claims under
§974.06 even if he could have raised those
claims on direct appeal, (2) the due pro-
cess violation inherent in retroactive
application of that decision under these
circumstances, and (3) the existence of
“sufficient reason" under Wis. Stat.
§974.06(4) for not raising these constitu-
tional issues on direct appeal.
5d
6. Undersigned counsel represents
Kathleen Braun, the defendant in State v.
Braun, supra. He will file a motion for
reconsideration with the Wisconsin Supreme
Court in that case on or before July 12,
1994. Undersigned counsel also is in-
formed by Attorney John Birdsall, counsel
for the defendant in State v. Escalona-
Naranjo, supra, that he intends to file a
motion for reconsideration in that case on
or before July 12, 1994.
‘i Mr. Liegakos respectfully sub-
mits that supplemental briefing would be
most worthwhile if it was delayed so that
it could take into account the Supreme
Court’s resolution of those motions for
reconsideration.
8. Undersigned counsel spoke by
telephone today with counsel for the
State, AAG Maureen McGlynn-Flanagan con-
cerning this motion. AAG Flanagan in-
6d
formed him <hat she has no objection to
the request for leave to file supplemental
briefs or for a delay in filing such
briefs pending resolution of the motions
for reconsideration in the Supreme Court.
However, she asks that the Court not order
Simultaneous briefs.
WHEREFORE, for these reasons, Mr.
Liegakos respectfully moves this Court for
an Order (1) staying resolution of this
appeal pending supplemental briefing by
the parties concerning the effects of
State v. Escalona-Naranjo, supra and State
v. Braun, supra; and (2) setting a
supplemental briefing schedule, with open-
ing, response, and reply briefs, to com-
mence after entry of orders by the Wiscon-
sin Supreme Court resolving the motions
for reconsideration in those cases. Al-
ternatively, Mr. Liegakos asks that the
Court enter an Order permitting the par-
7d
ties to submit supplemental briefs on a
schedule deemed appropriate by the Court.
Dated at Milwaukee, Wisconsin,
January 13, 1995.
Respectfully submitted,
JON T. LIEGAKOS, Defendant
SHELLOW, SHELLOW & GLYNN, S.C.
Robert R. Henak
State Bar No. 1016803
P.O. ADDRESS:
222 East Mason Street
Milwaukee, Wisconsin 53202
(414) 271-8535
le
APPENDIX E
STATE OF WISCONSIN
COURT OF APPEALS
DISTRICT II
Case No. 93-1523
STATE OF WISCONSIN,
Plaintiff-Respondent,
V.
JON T. LIEGAKOS,
Defendant-Appellant.
July 25, 1994
Before Anderson, P.J.
The appellant requests permission for _
the parties to file supplemental briefs in
this appeal to address the effect of State
v. Escalona-Naranjo, No. 92-0846 (Wis.
June 22, 1994) and State v. Braun, No. 91l-
0923 (Wis. June 22, 1994). We conclude
that supplemental briefs are not
necessary. Therefore,
2e P
IT IS ORDERED that the motion for
leave to file supplemental briefs is
denied.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.