¶ 94. {concurring). This case illustrates the legal house of mirrors that postconviction procedure in Wisconsin has become.
I
¶ 95. The court ordered the petitioner to address three issues in the present case. Reviewing these issues, and the way in which the majority resolves them, highlights what is and is not being decided in this case, and hints at what is at stake.
¶ 96. The first issue raised by the court was "whether the no-merit procedure requires a defendant to file a response to avoid waiver of subsequent claims of error."
¶ 97. The majority answers this question "no." The majority treats the no-merit procedure as equivalent to a "motion" for purposes of Wis. Stat. § 974.06(4).1 Thus, a defendant may not raise issues in a subsequent Wis. Stat. § 974.06 motion that he could have raised in response to a no-merit report absent a sufficient reason.2 The majority treats the defendant who responds to a no-merit report the same as a defendant who does not respond.3
*36¶ 98. In contrast, I conclude that whatever its idiosyncrasies, a no-merit procedure is a direct appeal under the law, albeit "a different breed of appeal."4 I conclude that the Escalona-Naranjo procedural bar applies to the defendant in this case. It is well-established that a defendant proceeding under Wis. Stat. § 974.06 "requires a sufficient reason to raise a constitutional issue in a § 974.06 motion that could have been raised on direct appeal." State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994); Wis. Stat. § 974.06(4).
¶ 99. The second issue raised by the court was "whether appointed counsel is required to advise the defendant that a response to a no-merit report is necessary to preserve claims for further review."
¶ 100. The majority answers this question by stating, "An attorney must discuss with the defendant the defendant's rights on appeal, including the option to file a no-merit report. State ex rel. Flores v. State, 183 Wis. 2d 587, 607, 516 N.W.2d 362 (1994)."5 The major*37ity doesn't otherwise answer the question. Because the no-merit procedure now decisively triggers the procedural bar, which affects the defendant's rights on further review, I conclude that counsel must discuss with the defendant the consequences of the no-merit procedure.
¶ 101. The third issue raised by the court is "whether to require a defendant to file a response to a no-merit report conflicts with a right to counsel on direct appeal."
¶ 102. The majority concludes that because a defendant is not required to file a response to a no-merit report, no conflict with the right to counsel on direct appeal exists. I address this question later.
II
¶ 103. A no-merit procedure is an appeal. When the court of appeals determines under Wis. Stat. § (Rule) 809.32(3) that further appellate proceedings would be frivolous and would lack arguable merit, the court of appeals shall affirm the judgment of conviction. Allen has had what is in effect a final adjudication of the judgment of conviction on the direct appeal. Therefore, the procedural bar applies under Escalona-Naranjo and State v. Lo, 2003 WI 107, 264 Wis. 2d 1, 665 N.W.2d 756.
¶ 104. That is not to say, however, that the no-merit procedure is what one normally thinks of as an appeal. Under Wis. Stat. § (Rule) 809.32(1), the no-merit report is filed when the defendant either requests it or when the defendant declines to consent to have his *38or her attorney close the file without further representation. For all practical purposes, the representation in which the lawyer served as the client's zealous advocate is at an end when the no-merit report is filed.
¶ 105. The no-merit procedure has been adopted as a practical way to balance the right to effective assistance of counsel with an attorney's ethical obligation not to advance frivolous arguments before the court. See Anders v. California, 386 U.S. 738, 744 (1967) (implemented in Wisconsin under Wis. Stat. § (Rule) 809.32); McCoy v. Court of Appeals of Wis., 486 U.S. 429 (1988). See also State v. Parent, 2006 WI 132, ¶¶ 19-21, 298 Wis. 2d 63, 725 N.W.2d 915. In the no-merit procedure, the court of appeals "conducts its own scrutiny of the record to see if there are any potential appellate issues with arguable merit." Parent, 298 Wis. 2d at 77, ¶ 21.
¶ 106. The majority emphasizes that the court of appeals performs a "full examination of all the proceedings" in the no-merit procedure, majority op., ¶ 58, and quotes State v. Tillman, 2005 WI App 71, ¶ 19, 281 Wis. 2d 157, 696 N.W.2d 574, which asserted that "in some facets, the no merit procedure affords a defendant greater scrutiny... than in a conventional appeal." See majority op., ¶ 31 (quoting Tillman, 281 Wis. 2d 157, ¶ 18).
¶ 107. I agree with the majority that the court must rely on the court of appeals' no-merit decision, up to a point, for purposes of evaluating the procedural bar issue. See majority op., ¶¶ 63, 82.1 agree that a demonstrated failure to comply with the no-merit procedure provides a "sufficient reason" to permit new issues to be raised in a Wis. Stat. § 974.06 motion. Majority op., ¶ 66.
*39¶ 108. In my view, however, one should not overstate the benefits or robustness of the no-merit procedure in comparison to an appeal in which the defendant remains represented by counsel who raises and argues non-frivolous issues on the defendant's behalf.
¶ 109. Normally in our court system, "[a] fair adversary process presupposes both a vigorous prosecution and a vigorous defense." Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 419 (1978). "[T]he adversarial process protected by the Sixth Amendment requires that the accused have 'counsel acting in the role of an advocate.' " United States v. Cronic, 466 U.S. 648, 656 (1984) (quoting Anders, 386 U.S. at 743). http:// scholar, google. com/scholar_case?case=868429855339617087&q =Cronic,+466+us+648&hl=en&as_sdt=40000000000 0002. In a no-merit procedure, the defendant has no independent advocate: there is no adversarial proceeding. The court departs from the usual adversarial principles in a no-merit procedure.
¶ 110. Moreover, as a practical matter, the court of appeals reviews a paper record of the case. If the defendant's case presents potential issues that depend on information not contained in the record — for instance, a suppression motion that was not brought or evidence that was not considered or introduced at trial — then it is effectively impossible for the court of appeals to identify or address those issues adequately. So courts should not too hastily rely on a court of appeals' no-merit decision without actually evaluating whether issues raised in a Wis. Stat. § 974.06(4) motion could have been "raised" and evaluated by the court of appeals in the no-merit procedure.
¶ 111. In light of these considerations I am not persuaded that it is equitable to treat the no-merit case *40different from the case in which no appeal has been filed. The defendant who never files a § 974.02 motion or takes a direct appeal is not subject to the procedural bar; the defendant in a no-merit procedure is. Majority op., ¶ 40. Yet, as far as the "no merit" defendant is concerned, he has not had the opportunity for an appeal in which he is represented by counsel.
Ill
¶ 112. The basic idea of the procedural bar following Escalona-Naranjo is that absent a "sufficient reason," defendants may not raise issues that could have been raised in a previous motion or on direct appeal. Escalona-Naranjo, 185 Wis. 2d at 185. In other words, according to the majority at ¶ 3, "the question at hand is whether Allen is barred from raising issues in his § 974.06(4) motion." Many pages later one discovers that the answer to whether Allen is "barred" from raising issues in his § 974.06(4) motion depends on an examination of what those issues are. See majority op., ¶¶ 76-79.
¶ 113. In other words, in order to decide whether the court should evaluate the merits of the defendant's constitutional claims, the court first must evaluate the merits of the constitutional claims. In my view, this double-refracted way of looking at the constitutional issues is a perfectly emblematic result of the convolutions that have been wrought in Wisconsin's postconviction procedure under Wis. Stat. § 974.06.6
*41¶ 114. The majority suggests that to meet the burden of proof on a Wis. Stat. § 974.06 motion following a no-merit procedure, the defendant should identify "an issue of such obvious merit that it was an error by the court [of appeals] not to discuss it." See majority op., ¶ 83.
¶ 115. It is not "obvious" what the majority means by "obvious merit." Since it is the obligation of the court of appeals in a no-merit procedure to determine whether the issues are "without any arguable merit," Wis. Stat. § 809.32(3), majority op., ¶ 21, the court of appeals errs when it overlooks issues of "arguable merit," not when it overlooks issues of "obvious merit." The majority's passing articulation of a new "obvious merit" standard appears to draw a new line between those issues the court of appeals must actually "discuss" and issues the court of appeals may resolve tacitly.
¶ 116. When I apply the new rules set forth in the majority opinion, I concur in the mandate.
¶ 117. I am not persuaded that the procedure set forth in the majority opinion has provided judicial economy, simplicity, or finality.
¶ 118. For the reasons set forth, I write separately.
¶ 119. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.See majority op., ¶ 41 ("A no-merit appeal clearly qualifies as a previous motion under § 974.06(4)."). Elsewhere in the opinion, the majority suggests what to me is a potentially simpler explanation for application of the procedural bar to a no-merit appeal based on the text of Wis. Stat. § 974.06(4). Issues raised in a no-merit procedure are considered "finally adjudicated." See majority op., ¶ 59. In other words, the defendant "got review of those claims from the court of appeals" at the time of the no-merit appeal.
Majority op., ¶ 4.
See majority op., ¶¶ 59-60.
State v. Tillman, 2005 WI App 71, ¶ 20, 281 Wis. 2d 157, 168, 696 N.W.2d 574.
Majority op., ¶ 20. State ex rel. Flores v. State, 183 Wis. 2d 587, 607, 516 N.W.2d 362 (1994), cited by the majority, states:
Information about the No Merit option only becomes necessary when the No Merit option becomes relevant to the defendant's decision as how to exercise the right of appeal. Information about a No Merit report is not necessary when the defendant does not desire to pursue an appeal. See, e.g., Jones v. Estelle, 584 F.2d 687, 691 (5th Cir. 1978). As pointed out by the amicus brief from the Office of State Public Defender, there are many possible reasons why a defendant may wish to forego any appeal which are unrelated to the specific avenues of appeal available. For instance, a criminal defendant may wish to forego an appeal even when there is arguable merit rather than to be exposed to the possibility *37of a greater penally on resentencing or the resurrection of dismissed charges should the appeal succeed. Or the defendant may not wish to appeal based upon any number of personal, practical, or even idiosyncratic reasons.
See Escalonja-Naranjo, 185 Wis. 2d at 196 (Abrahamson, J., dissenting) ("[I]n the states that have apparently adopted the majority's approach... the litigation has merely shifted the court's attention from the merits of the constitutional claim to *41arcane procedural issues. Rather than create a procedural morass, I would rather see courts deal with significant constitutional issues on their merits.").