Fighting for Your Rights Beyond the Trial Court

Frequently Asked Questions

1. Can I stay out on bail while my appeal is being decided?

   Postconviction release on bond is never automatic, regardless of whether your conviction is for a misdemeanor or a felony.

   Under Wis. Stat. § 969.01(2) and Wis. Stat. § 809.31, release pending postconviction relief rests entirely within the discretion of the trial court for both misdemeanors and felonies. To secure bond while your appeal moves forward, your attorney must file a formal motion asking the circuit court to stay your sentence or set conditions of release. The court evaluates specific risk factors before granting bond, requiring your defense team to demonstrate that your appeal raises non-frivolous legal issues, that you pose no flight risk or danger to the public, and that you will strictly comply with all court-ordered conditions.

2. What are the most common grounds for postconviction relief?

   Postconviction relief in Wisconsin must be rooted in specific legal, constitutional, or procedural errors that affected the fairness or outcome of your case. The most common grounds include:

   • Erroneous Pre-Trial and Trial Rulings: Challenges to the circuit court judge’s decision, such as improperly denying a motion to suppress evidence (unlawful searches, seizures, or statements), admitting prejudicial character evidence, or misinterpreting statutory law.
   • Ineffective Assistance of Counsel: Sixth Amendment claims where trial counsel’s performance fell below objective professional standards—such as failing to investigate crucial witnesses, omitting key pre-trial motions, or providing flawed legal advice—and directly prejudiced the defense.
   • Plea Withdrawal Claims: Moving to withdraw a guilty or no-contest plea because it was not entered knowingly, intelligently, and voluntarily (a defective plea colloquy), or because the prosecutor materially breached a term of the plea agreement at sentencing.
   • Sentencing Errors and Abuse of Discretion: Challenging unlawful, excessive, or unconstitutional sentences, including reliance on inaccurate facts during sentencing, failure to state a clear rationale on the record, or sentences that exceed statutory maximums.
   • Prosecutorial Misconduct and Discovery Violations: Challenges based on the state withholding favorable, exculpatory, or impeachment evidence (Brady violations), failing to disclose witness incentives, or making prejudicial arguments to the jury during trial.
   • Insufficiency of Trial Evidence: Asserting that the evidence presented by the prosecution at trial was legally insufficient for any rational jury to find guilt beyond a reasonable doubt under Wisconsin law.
   • Newly Discovered Evidence: Presenting critical, exonerating evidence discovered after conviction—such as new forensic science, recanted witness testimony, or DNA results—that could not have been uncovered earlier through due diligence and creates a reasonable probability of a different result.
   • Jury Misconduct and Flawed Jury Instructions: Reversal claims based on erroneous jury instructions that misstated the law or shifted the burden of proof, unconstitutional juror strikes, or improper external influence on the jury during deliberations.

3. What is the difference between a direct appeal and a circuit court postconviction motion?

   A direct appeal challenges preserved trial court errors, sufficiency of the evidence, or pure questions of law directly in the Wisconsin Court of Appeals. Conversely, a postconviction motion under Wis. Stat. § (Rule) 809.30 must be filed in the circuit court first. Postconviction motions are required to litigate unpreserved errors, claim ineffective assistance of trial counsel (Machner hearing), seek plea withdrawal (Bangert or Bentley motions), or request sentence modification based on new factors.

4. Will I have to go back before the same judge who convicted or sentenced me?

   It depends on where your case stands in the postconviction process.

   When your attorney files an initial postconviction motion under Wis. Stat. § 809.30, Wisconsin law requires that motion to be heard in the local circuit court by your original trial judge. This initial step gives the trial court an opportunity to correct errors or conduct an evidentiary hearing—such as a Machner hearing regarding trial counsel’s performance—to establish a formal factual record for appeal.

   However, if you win your appeal and the Court of Appeals reverses your conviction or remands your case for a new trial, resentencing, or further proceedings, your rights change. Under Wis. Stat. § 971.20(7), you are granted a fresh statutory right to request a substitution of judge. As long as your request is filed within 20 days of the appellate court’s remittitur returning to the circuit court, a new judge will be assigned to preside over your case moving forward.

5. Can Casper Mehlos Law Group help when my current appellate counsel told me my case has no grounds for appeal?

   Yes. When public defense counsel believes an appeal lacks arguable merit, Wisconsin law mandates that they file a formal “No-Merit Report” under Wis. Stat. § 809.32. As private counsel, we provide independent second opinions by conducting a comprehensive review of your trial transcripts and court records. If our evaluation uncovers viable constitutional or statutory errors, we step in to actively litigate your appeal. If an appeal is wholly frivolous, we discuss this candidly to save you unnecessary legal expenses rather than charging you retainer fees to file a No-Merit report against you.

6. What happens if I missed my 20-day Notice of Intent (NOI) deadline after sentencing?

   Missing the 20-day post-sentencing deadline under Wis. Stat. § 809.30(2)(b) does not automatically end your case. The Wisconsin Court of Appeals has the authority under Rule 809.82(2) to grant retroactive extensions of pre-appeal deadlines upon a showing of “good cause”. Furthermore, if your trial attorney failed to file a requested NOI, we can file a Knight petition (writ of habeas corpus) alleging ineffective assistance of appellate counsel to reinstate your direct appeal rights.

7. Which Wisconsin appellate deadlines can be extended, and which cannot?

   In Wisconsin criminal appellate practice, the Court of Appeals has discretion to extend most preliminary and briefing deadlines upon a showing of good cause. This flexibility applies to pre-appeal statutory requirements under Wis. Stat. § 809.30, such as ordering trial transcripts, filing postconviction motions in the circuit court, and submitting the initial Notice of Appeal.

   However, under Wis. Stat. § 809.82(2), two critical post-decision deadlines are strictly jurisdictional and cannot be extended by any court under any circumstances:

   First, a Motion for Reconsideration must be filed in the Court of Appeals within 20 days of its decision. Second, a Petition for Review must be filed in the Wisconsin Supreme Court within 30 days of the Court of Appeals’ decision or its denial of reconsideration. Because missing either of these statutory windows permanently forfeits your right to further appellate review, strict compliance is mandatory.

8. Can I introduce new evidence or call new witnesses during my appeal?

   In the Court of Appeals, review is strictly limited to the written record established in the circuit court; no new evidence, exhibits, or witness testimony can be presented in an appellate brief. However, if your claim involves new evidence or facts outside the trial record (such as ineffective assistance of trial counsel), we introduce this evidence by filing a postconviction motion in the circuit court. This allows the circuit court judge to hold an evidentiary hearing where we can call witnesses, present documents, and establish the factual record necessary for appeal.

9. How long does a criminal appeal take from start to finish?

   The total timeline varies significantly depending on the specific legal remedy being pursued, ranging from a few months for targeted trial court motions to several years for full appellate review.

   For simple, targeted trial court remedies—such as a motion to correct sentence credit or a motion to modify sentence—the process is relatively swift. Because these straightforward postconviction motions bypass the lengthy process of briefing before an appellate court, and the circuit court has a statutorily required deadlines, the total time to resolve the issue can be within 30 to 90 days.

   A full direct appeal takes substantially longer, typically requiring 12 to 24 months. This comprehensive process involves ordering and compiling trial court transcripts, investigating and litigating substantive postconviction motions in the circuit court (such as holding a Machner hearing on ineffective assistance of counsel), submitting detailed appellate briefs, and awaiting a written decision from the Wisconsin Court of Appeals.

   If your case proceeds past the Court of Appeals to the Wisconsin Supreme Court, the timeline extends even further. Submitting a Petition for Review within the strict 30-day statutory window, awaiting the Supreme Court’s discretionary decision to grant review, and completing a second round of legal briefs and oral arguments adds another 6 to 12+ months—stretching the total timeframe to 2 to 3 years.