On Point blog, page 2 of 7
Jeremy Perri Guest Posts: SCOW holds warnings not required before finding defendant has forfeited right to counsel
State v. Jack M. Suriano, 2017 WI 42, affirming an unpublished court of appeals opinion, 2015AP959-CR; case activity (including posts)
In Wisconsin, a defendant can lose his or her right to counsel in two ways: waiver and forfeiture. Waiver is voluntary and requires a colloquy with the defendant. Forfeiture does not.
Three different attorneys accepted State Public Defender (SPD) appointments to represent Jack Suriano. Each, in quick succession, withdrew from representation. After granting the third attorney’s motion to withdraw, the court found that Suriano had forfeited his right to counsel.
A puzzling decision on collateral attack pleading requirements
State v. Matthew A. Seward, 2016AP1248-CR, 3/22/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
This is a permissive appeal. Matthew Seward is charged with OWI-3rd; he seeks reversal of the circuit court’s denial of his collateral attack on his OWI-2nd conviction.
No error in denying defendant’s request for new counsel and adjournment of trial
State v. Michael Steel, Jr., 2016AP796-CR, District 3, 2/7/17 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court didn’t erroneously exercise its discretion in denying Steel’s requests for a new lawyer and an adjournment on the morning of trial.
Trial court’s denial of counsel affirmed due to “sketchy” record
State v. Elbe, 2016AP2012-2013, 1/26/17, District 4 (1-judge opinion; ineligible for publication); case activity (including briefs)
The Elbes were charged with disorderly conduct back in 1996. They requested the appointment of counsel, but the trial court found that they were not indigent. This caused them to plead no contest. Twenty years later they moved to vacate their convictions arguing that the 1996 decision violated their 6th Amendment right to counsel. They lost in the trial court and in the court of appeals.
State v. Jack M. Suriano, 2015AP959-CR, petition for review granted 9/13/16
Review of an unpublished court of appeals decision; case activity (including briefs)
Issue (composed by On Point)
Did the circuit court err in holding that Suriano forfeited his Sixth Amendment right to counsel after three appointed attorneys withdrew from representing him because the court did not warn Suriano that forfeiture was a possibility and did not advise Suriano of the difficulties and dangers of self-representation?
Seventh Circuit: SCOW decision on self-representation is “flatly contrary” to Faretta
Rashaad A. Imani v. William Pollard, 7th Circuit Court of Appeals No. 14-3407, 2016 WL 3434673, 6/22/16
Imani tried to exercise his right to self-representation under Faretta v. California, 422 U.S. 806 (1975), but the Wisconsin trial judge prevented him from doing so. In State v. Imani, 2010 WI 66, 326 Wis. 2d 179, 786 N.W.2d 40, the Wisconsin Supreme Court held that the trial judge properly found Imani wasn’t competent to represent himself and that he hadn’t made a knowing and voluntary choice to represent himself. The Seventh Circuit now holds that even under the stringent standard for federal habeas relief, SCOW’s decision was wrong, and Imani is entitled to a new trial.
SCOTUS: Pretrial seizure of untainted assets violates right to counsel of choice
Sila Luis v. United States, USSC No. 14-419, 2016 WL 1228690 (March 30, 2016), vacating and remanding U.S. v. Luis, 564 Fed. Appx. 493 (11th Cir. 2014) (per curiam) (unpublished); Scotusblog page (including links to briefs and commentary)
The question presented in this case is whether the pretrial restraint of a criminal defendant’s legitimate, untainted assets—that is, assets not traceable to a criminal offense—needed to retain counsel of choice violates the Sixth Amendment. A majority of the U.S. Supreme Court answers “yes,” though for different reasons.
No need to warn defendant his actions might result in forfeiture of counsel
State v. Jack M. Suriano, 2015AP959-CR, 3/15/16, District 3 (one-judge decision; ineligible for publication), petition for review granted 9/13/16, affirmed, 2017 WI 42; case activity (including briefs)
The circuit court never warned Suriano that forfeiture of his right to counsel was a possibility and did not engage Suriano in a colloquy about the difficulties and dangers of self-representation. Nonetheless, its finding that Suriano forfeited his right to appointed counsel is affirmed because the warning and colloquy are only “recommended,” and not required, procedures.
Challenge to waiver of appellate counsel can’t overcome “stiff” AEDPA burden
Gregory Jean-Paul v. Timonty Douma, 7th Circuit Court of Appeals No. 14-3088, 12/31/15
The Wisconsin Court of Appeals reasonably concluded that Jean-Paul validly waived his right to appellate counsel based on the waiver form he signed and his correspondence with his appellate lawyer.
Wisconsin’s standards for determining competency for self-representation are constitutional
State v. Andrew L. Jackson, 2015 WI App 45; case activity (including briefs)
The standard established under State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), for determining a defendant’s competency to represent himself does not violate Indiana v. Edwards, 554 U.S. 164 (2008), the court of appeals holds. The court also affirms the circuit court’s conclusions that Jackson didn’t validly waive his right to counsel and wasn’t competent to represent himself.