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A stitch in time saves nine

State v. Marcus Demond Anderson, Sr., 2018AP2016-CR, District 1, 10/8/19 (not recommended for publication); case activity (including briefs)

At the start of his sentencing hearing Anderson lodged a complaint against his lawyer, which the judge blithely ignored. (¶¶2-4). Do over, says the court of appeals.

¶8     “[A] circuit court’s exercise of discretion is triggered by a defendant’s presentation of a substantial complaint that could be interpreted as a request for new counsel.” State v. McDowell, 2004 WI 70, ¶66, 272 Wis. 2d 488, 681 N.W.2d 500. A defendant’s request for new counsel need not be explicit. See id., ¶71. “When a substantial complaint is made, the trial judge should inquire whether there are proper reasons for substitution.” Id., ¶66.

¶9     In evaluating whether a circuit court’s denial of a motion for substitution of counsel is an erroneous exercise of discretion, we must consider a number of factors including: “(1) the adequacy of the court’s inquiry into the defendant’s complaint; (2) the timeliness of the motion; and (3) whether the alleged conflict between the defendant and the attorney was so great that it likely resulted in a total lack of communication that prevented an adequate defense and frustrated a fair presentation of the case.” See State v. Lomax, 146 Wis. 2d 356, 359, 432 N.W.2d 89 (1988). The circuit court must make a sufficient inquiry to ensure “that a defendant is not cemented to a lawyer with whom full and fair communication is impossible.” State v. Jones, 2007 WI App 248, ¶13, 306 Wis. 2d 340, 742 N.W.2d 341. ….

¶10     …[W]e conclude that the circuit court erroneously exercised its discretion when it ignored Anderson’s statements at his sentencing hearing. At the beginning of the hearing, Anderson told the circuit court that his trial counsel was “ineffective” and “ain’t come and see me … ain’t been coming to talk to me at [all].” Anderson also told the court that he did not understand the terms of his pleas. The circuit court brushed over the statements and the postconviction court found that Anderson failed to make statements tantamount to a request for new counsel. We conclude that Anderson’s statements, in the context in which they were spoken, were sufficient to alert the circuit court that Anderson had a potentially substantial complaint about his counsel, namely that counsel did not communicate with Anderson regarding his pleas and potential sentence. Anderson’s statement that counsel was “ineffective” could reasonably be interpreted as a request for new counsel, as it is unlikely for a defendant to draw “ineffective[ness]” to a court’s attention if the defendant wished to continue with counsel.

¶11     Once such a request is made, it is within the circuit court’s discretion to determine whether a proper factual basis exists for appointing new counsel. State v. Johnson, 50 Wis. 2d 280, 283, 184 N.W.2d 107 (1971). The court’s exercise of discretion “must be on an informed basis,” taking into account the factors articulated in Lomax. State v. Kazee, 146 Wis. 2d 366, 372, 432 N.W.2d 93 (1988).

¶12     Here, the circuit court did not even make a “minimal inquiry” into Anderson’s statements. See id. Rather, the court completely ignored Anderson’s concerns and proceeded with sentencing as though Anderson had said nothing. Accordingly, none among the circuit court, the postconviction court, or this court, had “any way of knowing whether the request [was] justifiable, or merely an attempt to secure a delay or tactical advantage.” See id. ….

Reversed for a retrospective evidentiary hearing at which Anderson gets to present his reasons for seeking a new lawyer. Jones, 306 Wis. 2d 340, ¶19.

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