State v. Jay A. Hoppe

OFFICE OF THE CLERK
WISCONSIN COURT OF APPEALS
110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WISCONSIN 53701-1688
Telephone (608) 266-1880
TTY: (800) 947-3529
Facsimile (608) 267-0640
Web Site: www.wicourts.gov
DISTRICT III
November 9, 2021
To:
Hon. James C. Babler
Circuit Court Judge
Electronic Notice
Sharon Millermon
Clerk of Circuit Court
Barron County Justice Center
Electronic Notice
Winn S. Collins
Electronic Notice
Dennis Schertz
Electronic Notice
Brian H. Wright
Electronic Notice
Jay A. Hoppe 564514
Jackson Correctional Inst.
P.O. Box 233
Black River Falls, WI 54615-0233
You are hereby notified that the Court has entered the following opinion and order:
2020AP1497-CRNM State of Wisconsin v. Jay A. Hoppe (L. C. No. 2018CF105)
Before Stark, P.J., Hruz and Gill, JJ.
Summary disposition orders may not be cited in any court of this state as precedent or
authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
Attorney Dennis Schertz, appointed counsel for Jay A. Hoppe, has filed a no-merit report
seeking to withdraw as appellate counsel. See WIS. STAT. RULE 809.32 (2019-20),1 and Anders
v. California, 386 U.S. 738, 744 (1967). By prior order, we informed Attorney Schertz that we
were unable to determine whether further proceedings would be wholly frivolous. We requested
further input from counsel as to whether it would be wholly frivolous to argue that Hoppe’s
1 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

No. 2020AP1497-CRNM
2
conviction for attempted second-degree sexual assault of a child was multiplicitous to his
conviction for child enticement. Attorney Schertz has now informed this court that he has
determined that a postconviction motion to vacate the second-degree sexual assault of a child
conviction as multiplicitous would have arguable merit. Because counsel informs this court that
there is an issue of arguable merit to pursue, we now reject the no-merit report and extend the
time to file a postconviction motion.
Although we now dismiss this no-merit appeal, we also address Attorney Schertz’s
request for clarification of our prior order. Attorney Schertz states in his letter to this court that
he is unclear as to the “scope” of our prior order. In addition to the motion to vacate that he
intends to pursue, Attorney Schertz asserts that Hoppe has asked him to pursue a motion for a
new trial based on a claim of ineffective assistance of counsel. Attorney Schertz states that he
believes that our prior order limited counsel to pursuing only the motion to vacate specifically
contemplated by the order. Attorney Schertz also states that he believes a claim of ineffective
assistance of counsel would lack arguable merit, and he questions whether he should file a
supplemental no-merit report addressing that claim.
First, a no-merit appeal, by definition, may be pursued only in cases where counsel
concludes that there are no issues with arguable merit to pursue. WIS. STAT. RULE 809.32(1)(a).
As explained above, we now reject the no-merit report because Attorney Schertz has concluded
that there is at least one non-frivolous issue to pursue by postconviction motion. Because a
no-merit appeal is no longer appropriate, there is no reason for Attorney Schertz to file a
supplemental no-merit report.

No. 2020AP1497-CRNM
3
Second, nothing in this court’s prior order limits the issues counsel may pursue on
Hoppe’s behalf following our decision rejecting the no-merit report, dismissing the appeal, and
extending the time to file a postconviction motion. We explained in our prior order that we were
unable to conclude that further proceedings would be wholly frivolous. We did not state that the
issue identified in our order was the only possibly non-frivolous issue in this matter or that it is
the only issue that Hoppe may pursue. Counsel remains free to choose which issues to raise by
postconviction motion.
Therefore,
IT IS ORDERED that the no-merit report is rejected and the no-merit appeal is
dismissed.
IT IS FURTHER ORDERED that the time to file a postconviction motion or notice of
appeal is extended to sixty days from the date of this order.
IT IS FURTHER ORDERED that this summary disposition order will not be published.
Sheila T. Reiff
Clerk of Court of Appeals