Thursday, April 27, 2017

The Wisconsin Supreme Court has held that a criminal defendant forfeited his right to appointed counsel

We review whether Jack Suriano's actions, which caused three attorneys appointed by the State Public Defender to withdraw in rapid succession, constituted forfeiture of his right to counsel, and whether the right-to-counsel warnings and procedure this court recommended in State v. Cummings, 199 Wis. 2d 721, 546 N.W.2d 406 (1996), should be made mandatory. We conclude that Suriano forfeited his constitutional right to counsel by repeatedly refusing to cooperate with his attorneys, constantly complaining about their performance, verbally abusing them, and triggering one lawyer's fear of a physical threat. Suriano's dilatory and manipulative game-playing frustrated the progression of this case and interfered with the proper administration of justice. We uphold the circuit court's determination that Suriano forfeited his right to counsel, and we affirm the court of appeals decision. We see no reason to change the forfeiture standard this court set forth in Cummings and decline Suriano's request to modify it. Instead, we reaffirm our holding that right-to-counsel warnings in forfeiture cases and the procedures suggested by the Cummings dissent are strongly recommended, but not required. We affirm.

The alleged crime

In October 2013, Suriano obstructed the Door County Sheriff's Department and sanitation officials who came to his home with a warrant to take a soil sample from the property. Police arrested Suriano, and he was charged with obstructing an officer...

Attorney One was a public defender who moved to withdraw after about a month

Erickson testified that, while his goal was to resolve the case, Suriano's goals included:

 To take depositions of all the parties and explore all contractual relationships;

 To prove his innocence;

 "[T]o explore every legal or even nonlegal aspect of this case" to make things difficult and frustrate "the legal system";

 "To be an ass"; and

 "[T]o make it difficult or frustrating for the court system to proceed" because Suriano believed he was improperly charged.

Motion granted.

Attorney Two

The SPD gave Suriano a second attorney, Linda Schaefer, who very quickly moved to withdraw, averring that "a significant conflict ha[d] developed" so she could "no longer effectively represent Mr. Suriano." At the February 2014 pretrial hearing, the circuit court addressed Schaefer's motion and asked Suriano if he wanted to comment on it. Suriano said "No," and the circuit court granted the motion.

The judge warned the defendant that three strikes might be an out but the third appointed attorney nonetheless encountered problems

The circuit court then asked [attorney] Singh about the SPD's "three-strike" rule——that is, whether the SPD would appoint another attorney when a defendant has already had three SPD appointed attorneys who withdrew. Singh responded he could not speak for the SPD, but he had "grave doubts" about whether the SPD would appoint a fourth attorney if Suriano fired Singh. Singh said everyone should "assume that if I end up off the case he's going to have to either represent himself [or] get a lawyer on the economy." The court then specifically asked Suriano if he wanted Singh to continue as his lawyer. Suriano did not directly answer the court's question; instead, he rattled off a series of complaints about Singh, claimed he had not "received any value" from the SPD, and contended that, although his case should be "very easy to win on dismissal," none of his lawyers would pursue it.

Singh pressed on bravely but finally moved to withdraw

Finding the relationship irretrievably broken, the circuit court granted Singh's motion to withdraw. The circuit court then gave Suriano an opportunity to be heard on the State's request that the court find forfeiture. Suriano argued he wanted an attorney to represent him and a forfeiture finding would "be a real prejudice." He talked about how each of his SPD-appointed lawyers had failed him and how he wanted his motion to suppress reinstated. The circuit court engaged Suriano in a colloquy about his education and learned Suriano had two college degrees——geology and chemistry——and was one credit short of a graduate degree.

The trial court refused to appoint another attorney

Suriano represented himself at the one-day trial, and the jury found him guilty of obstruction. The circuit court sentenced him to a $100 fine, plus costs, and 10 days in jail, which would be "permanently stay[ed]" if Suriano paid the fine within 60 days. Suriano appealed with the help of a newly appointed SPD-appellate lawyer, and his sentence has been stayed pending appeal. The court of appeals affirmed the judgment, and we granted Suriano's petition for review.

The court here found he forfeited his right to appointed counsel

we conclude Suriano forfeited his right to counsel. Suriano's case falls into the forfeiture category because there is no dispute he did not expressly waive his right to counsel. A defendant forfeits his or her right to counsel "when the 'court becomes convinced that the orderly and efficient progression of the case [is] being frustrated,'" Cummings, 199 Wis. 2d at 753 n.15 (quoted source and ellipsis omitted), by the defendant's voluntary and deliberate choices, id. at 752.

The record supports the circuit court's finding that Suriano made it clear he would not cooperate with any attorney. His actions caused three SPD lawyers to withdraw in rapid succession. One of those lawyers specifically testified that Suriano was trying to frustrate the progress of the case and cause delay because Suriano believed the case should be dismissed. Another one of his lawyers felt so threatened by Suriano that he would not meet with him unless he could be sure Suriano did not have a weapon. Suriano verbally abused at least one of his lawyers, admitted in open court that he did so, and declared he would do it again because the disparaging verbal assaults were all "true." The circuit court found Suriano was playing games and manipulating the case to delay the trial. Suriano did not say he wanted to represent himself, but his repeated dilatory tactics and abusive behavior expressed loudly and clearly that he would make it impossible for any attorney to represent him. This is sufficient to satisfy the forfeiture standard and supports the circuit court's finding of forfeiture in this case. Suriano's voluntary and deliberate choices frustrated the orderly and efficient progression of this case...

Applying the Cummings standard to this case, we hold that Suriano forfeited his constitutional right to counsel by engaging in voluntary and deliberate conduct, which frustrated the progression of his case and interfered with the proper administration of justice. The record supports the circuit court's findings that Suriano repeatedly refused to cooperate with his attorneys, engaged in recurrent dilatory tactics to manipulate and cause delay, and verbally abused counsel, even causing one of his lawyers to view Suriano as a physical threat. The circuit court's finding of forfeiture meets the Cummings standard and we agree with the court of appeals' decision affirming it.

Justice Abrahamson dissented

To protect an accused's right to counsel, to avoid after-the-fact legal disputes regarding whether an accused relinquished (that is, forfeited or waived) the right to counsel, and to promote certainty and judicial efficiency, I would mandate an in-court, on-the-record colloquy by the circuit court with the accused in all cases pertaining to relinquishment of the fundamental right to counsel. The colloquy is set forth in Justice Geske's dissent in State v. Cummings, 199 Wis. 2d 721, 546 N.W.2d 406 (1996).

The majority opinion "strongly recommends" this procedure. See majority op., ¶¶1, 34. I would require it.

I would require the circuit court record to reflect that the circuit court made the accused aware of the seriousness of the charges he or she faces, the potential penalties that may be imposed upon a finding of guilt, and the difficulties and disadvantages of self-representation.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2017/04/the-wisconsin-supreme-court-has-held-that-a-criminal-defendant-forfeited-his-right-to-counsel-we-review-whether-jack-suriano.html