¶ 69. (dissenting). Enough already! I get it. Defendants should use habeas to claim ineffective assistance of appellate counsel. If they do not, their claim is dismissed, and they have to start anew with a petition for a writ of habeas.
¶ 70. The defendant alleged ineffective assistance of appellate counsel, namely that counsel failed to proceed with the appeal based on circuit court errors that trial counsel had preserved. The majority opinion fixates on the issue of the necessity of claiming ineffective assistance of appellate counsel by a petition for a writ of habeas corpus pursuant to State v. Knight,1 not by a Wis. Stat. § (Rule) 809.82(2) motion. As Justice Crooks's concurrence points out, because the court of appeals dismissed the defendant's habeas petition and instead addressed the defendant's § (Rule) 809.82(2) *241motion, the majority opinion refuses to resolve the substantive issues in the case.
¶ 71. Yet in a case mandated this very day, State v. Guerard,2 this court ignores the fact that the court of appeals sua sponte interpreted Guerard's petition for a writ of habeas corpus as a request to extend time under Wis. Stat. § (Rule) 809.82(2) to file a motion for direct appeal or postconviction relief, and extended the time for appeal or postconviction relief. Guerard alleged ineffective assistance of appellate counsel, namely failure to complete the appeal based on ineffective assistance of trial counsel.
¶ 72. On Guerard's postconviction motion, new appellate counsel alleged ineffective assistance of trial counsel in a Machner3 hearing. The court of appeals and this court address the merits of Guerard's claim of ineffective assistance of trial counsel. Yet if we were to apply the Evans majority opinion to Guerard, neither the court of appeals nor the supreme court could address Guerard's substantive issues. I do not see a difference between this case and the Guerard case that justifies our reaching the merits of the substantive issues of ineffective assistance of trial counsel in Guer-ard, but not in this case.
¶ 73. The majority does not address Evans's substantive claims because the court of appeals never made a determination of whether Evans's appellate counsel was ineffective.4 Yet, in Guerard, where this court addresses Guerard's substantive claims, the court of *242appeals never made a determination of whether Guerard's appellate counsel rendered ineffective assistance of counsel.5
¶ 74. The court of appeals acted under Wis. Stat. § (Rule) 809.82(2) in Guerard. Under the holding of the present case, the court of appeals cannot, under § (Rule) 809.82(2), extend the time for appeal or post-conviction relief and cannot address substantive allegations of errors relating to the trial. Just what is the difference between Guerard and the present case that justifies this different result? A full explanation is, I think, due and owing to the litigants, the circuit courts, and the court of appeals.6
HH
¶ 75. I address first the procedural issue, Wis. Stat. § (Rule) 809.82(2) versus habeas corpus (Knight), that occupies the full attention of the majority opinion.
¶ 76. To say that the history and procedural posture of this case are convoluted and peculiar is a significant understatement. The case has extended over *243several years and has been before circuit courts and the court of appeals several times.
¶ 77. On March 11, 2002, Evans filed a Wis. Stat. § (Rule) 809.82(2) motion in the court of appeals. The court of appeals granted the motion on March 13, 2002, extending the time for filing his postconviction motion or notice of appeal, and the case proceeded in circuit court. Evans never got a hearing in circuit court; his motion in circuit court was summarily denied. On July 12, 2002, Evans filed his notice of appeal to the court of appeals. The State objected on September 2, 2002 to the court of appeals' extension of time granted in March 2002. The court of appeals allowed the State to brief the issue. After the State's objection, Evans filed a petition for writ of habeas corpus in the court of appeals. On November 6, 2002, the court of appeals denied Evans's habeas petition as premature and proceeded to address the appeal and the State's objection to the extension of time under § (Rule) 809.82(2). This court of appeals decision, dated July 24, 2003, is now before us.
¶ 78. The majority opinion concludes that the court of appeals, not the defendant, erred. The court of appeals erred in using the defendant's Wis. Stat. § (Rule) 809.82(2) motion instead of allowing the defendant to proceed on his habeas petition. Now the majority opinion holds that Evans must proceed by a habeas petition.
¶ 79. The State argues that because the defendant's direct appeal was not properly reinstated via a Wis. Stat. § (Rule) 809.82(2) motion, the court of appeals lacked jurisdiction or competency to entertain several allegations of circuit court error asserted by the defendant. The majority opinion apparently agrees with the State in the case at bar but ignores the jurisdictional issue in Guerard. In any event, the ma*244jority opinion suggests that the defendant may file a petition for a writ of habeas corpus again.7 That means another two or so years in the judicial system before the defendant and the State will know whether the defendant is entitled to a new trial.
¶ 80. The court of appeals apparently frequently and almost automatically grants defendants extensions of time for filing a postconviction motion and appeal under Wis. Stat. § (Rule) 809.82(2), and the State generally does not object. That's the way defendants, the State, and the court of appeals seem to be doing appellate court business.8 This procedure apparently fills a need. If it's working, then let it be, I say.
¶ 81. In keeping with the general rule that this court ordinarily does not review an exercise of discretion by the court of appeals,9 I would not review the court of appeals' exercise of discretion relating to appellate practice in the court of appeals. I would treat this case just like the court treats the Guerard case.
¶ 82. In any event, I conclude that the court of appeals properly exercised its discretion in extending the defendant's time to file a postconviction motion and appeal in the present case. Wisconsin Stat. § (Rule) 809.82(2) (b) explicitly empowers the court of appeals to extend a defendant's time to file a postconviction mo*245tion and appeal under § (Rule) 809.30. The rule makes no exception for Knight claims, that is, for claims of ineffective assistance of appellate counsel. By judicial fiat the majority opinion reads a Knight exception into this simply stated, uncluttered rule.10 The majority opinion apparently reads the Knight exception into the text of the rule because it concludes that the textual reading of the rule has consequences the majority concludes will be troublesome.11
¶ 83. There is no need to read this exception into Wis. Stat. § (Rule) 809.82(2)(b). The Knight case addresses the question of which court is the proper forum to hear ineffective assistance of appellate counsel claims, the circuit court or court of appeals. The Knight court answered the question: the court of appeals.
¶ 84. Here the defendant sought relief in the proper court, the court of appeals. The court of appeals concluded that even if habeas is the exclusive procedure for ineffective assistance of appellate counsel claims, little substantive difference exists between a petition for habeas and a motion under Wis. Stat. § (Rule) 809.82(2), and reaffirmed that its granting of the exten*246sion was reasonable in the present case.12 Under either procedure, the court of appeals could have referred the matter for an evidentiary hearing if one was needed.13
¶ 85. I would hold the State to its waiver as this court does in Guerard.14 This court frequently holds individuals to waiver.15
¶ 86. The court of appeals proceeded to the merits of the defendant's and the State's arguments on defendant's appeal. I agree with the court of appeals' approach, and I turn to the merits of the substantive issues.16
*247¶ 87. With regard to the conviction for attempted first-degree homicide, the defendant asserted that the circuit court's failure to give the defendant's requested lesser-included instruction constituted reversible error. After reviewing the applicable case law regarding both when a lesser-included instruction must be given and shooting at a non-vital part of the victim's body, the court of appeals concluded that on the basis of this record the lesser-included instruction should have been given. The court of appeals reversed the conviction for attempted first-degree homicide. I agree with the reasoning of the court of appeals; I do not agree with Justice Crooks's concurrence on this substantive issue.
¶ 88. With regard to the conviction for first-degree reckless injury, I disagree with the court of appeals. The court of appeals refused to reverse the conviction for first-degree reckless injury (except to require resentencing).
¶ 89. The court of appeals never decided whether the circuit court erred in excluding defense witnesses who would have testified that the defendant was with them at or near the time of the shooting. This testimony would have corroborated the defendant's account of his whereabouts.
¶ 90. Upon examination of the record I conclude that the excluded testimony was relevant and necessary to the defendant's case and the State's interest in excluding the evidence failed to outweigh the defendant's constitutionally protected interest in presenting a defense.171 therefore conclude that the circuit court erred in excluding the testimony.
*248¶ 91. The circuit court concluded that any error in excluding the testimony was harmless error. This court applies the Chapman standard for harmless error. The standard is "whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."18
¶ 92. Under the Chapman standard, courts inquire into the nature of all the evidence heard to assess whether the error in excluding evidence was harmless beyond a reasonable doubt. As the Chapman court stated, a court cannot give too much emphasis to "overwhelming evidence" of guilt.19 The Chapman standard is not a sufficiency of evidence test.
¶ 93. This court has posited guidelines for assessing whether an error was harmless.20 A reviewing court should consider a variety of factors, including but not limited to the frequency of the error, the nature of the State's case, the nature of the defense, the importance of the erroneously included or excluded evidence to the prosecution's or defense's case, the presence or absence of evidence corroborating or contradicting the erroneously included or excluded evidence, whether errone*249ously admitted evidence merely duplicates untainted evidence, and the overall strength of the prosecution's case.21
¶ 94. Upon examining the record and applying these guidelines I conclude that the error was not harmless beyond a reasonable doubt.
¶ 95. For the reasons set forth, I dissent. I would reverse the convictions and remand for a new trial.
¶ 96. I am authorized to state that Justice ANN WALSH BRADLEY joins part I of this opinion.
State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).
2004 WI 85,_Wis. 2d_, 682 N.W.2d 12.
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (1979).
Majority op., ¶ 56 n.20.
Guerard2004 WI 85, ¶ 17; majority op., ¶ 56 n.19.
The majority opinion attempts to distinguish this case from the Guerard case by noting that the State did not object to the procedure in Guerard but in the present case objected to the procedure. Majority op., ¶ 56 n.19. So what, I say.
The same problem appears in both cases (as far as the majority opinion is concerned): The court of appeals never determined whether appellate counsel was ineffective. The court of appeals' finding on the ineffective assistance of appellate counsel is, according to the reasoning of the majority opinion, a predicate finding, and the failure of the court of appeals to make this finding is, under the majority opinion's reasoning, fatal and not waivable.
See majority op., ¶ 4.
For cases noting that the court of appeals granted a criminal defendant's motion to extend time for filing a notice of appeal, see, e.g., State v. Guerard, 2004 WI 85, ¶ 17 n.3,_ Wis. 2d_, 682 N.W.2d 12; State v. Smith, 207 Wis. 2d 258, 266-67, 558 N.W.2d 379 (1997); Biel v. Biel, 130 Wis. 2d 335, 337, 387 N.W.2d 295 (Ct. App. 1986).
State v. Smythe, 225 Wis. 2d 456, 462-63, 592 N.W.2d 628 (1999); State v. McConnohie, 113 Wis. 2d 362, 368-70, 334 N.W.2d 903 (1983).
The majority opinion concludes that the court of appeals erroneously exercised its discretion in ruling under Wis. Stat. § (Rule) 809.82 instead of requiring a defendant to use the Knight procedure. Majority op., ¶ 37 n.13. The court of appeals has, according to the majority opinion, erroneously exercised its discretion under § 809.82 because it erroneously interpreted its powers under § 809.82. Denying that this case involves an interpretation of § 809.82 or trying to recast the issue as one of discretion not connected to an interpretation of § 809.82 will not fool anybody about what the majority opinion is really doing.
See, e.g., majority op., ¶¶ 37, 56-59.
The question whether counsel's actions constitute ineffective assistance is a mixed question of law and fact. Findings of fact will not be reversed unless they are clearly erroneous. The ultimate conclusion of whether counsel's conduct violated the defendant's right to effective assistance of counsel is a question of law for an appellate court to determine independently of other courts. State v. Smith, 207 Wis. 2d 258, 266-67, 558 N.W.2d 379 (1997).
A former defense counsel's affidavit in the present case supported the defendant's factual assertions about the conduct of defense counsel on appeal. Although often a claim of ineffective assistance of trial or appellate counsel requires a fact-finding hearing, such a hearing is not always required to grant the claim. See, e.g., Smith, 207 Wis. 2d at 271, 275, 282 (Machner hearing on ineffectiveness of trial counsel not necessary under the facts of the case; supreme court determines deficient performance and prejudice to the defendant).
2004 WI 85, ¶ 17 n.3.
See, e.g., Village of Trempealeau v. Mikrut, 2004 WI 79, ¶ 3,_Wis. 2d_, 681 N.W.2d 190.
See also Guerard, 2004 WI 85 (in which the court proceeds to the merits of the case).
The admission of evidence is generally reviewed for erroneous exercise of discretion. State v. Guzman, 2001 WI App 54, 241 Wis. 2d 310, 624 N.W.2d 717. Whether the exclusion of evidence denies an accused the right to present a defense is a *248question of constitutional due process and is determined by this court. See State v. St. George, 2002 WI 50, ¶¶ 16, 38, 52, 252 Wis. 2d 499, 643 N.W.2d 777.
Chapman v. California, 386 U.S. 18, 24 (1967), reh'g denied, 386 U.S. 987 (1967) (internal quotations omitted).
Chapman, 386 U.S. at 23.
See, e.g., State v. Billings, 110 Wis. 2d 661, 668-69, 329 N.W.2d 192 (1983).
See, e.g., State v. Norman, 2003 WI 72, ¶ 48, 262 Wis. 2d 506, 664 N.W.2d 97.