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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.

Suriano had three appointed lawyers over the course of his case, all of whom were allowed to withdraw before trial—though not at Suriano’s request. (¶4). Suriano was hesitant to fire a lawyer because of the consequences and, with respect to his third lawyer, Suriano said it was the lawyer’s idea to withdraw. (¶¶6, 8). Instead, the lawyers claimed they had difficulty getting along with Suriano (one said Suriano’s objective was “to be an ass” (¶4), another said Suriano micromanaged and insulted him and complained to the SPD about him (¶7)).

After the third lawyer withdrew the state argued Suriano had forfeited his right to appointed counsel; in response Suriano told the circuit court he wanted and needed an attorney. (¶9). After brief questioning limited to Suriano’s education, the court found Suriano had forfeited his right to appointed counsel because the course of events showed he would not cooperate with any attorney. (¶10). A week or so before trial Suriano found a lawyer who was willing to represent him, but the court wouldn’t appoint him and wouldn’t delay the trial date. (¶¶11-12).

A defendant may forfeit the right to counsel by his or her conduct, but only if “the orderly and efficient progression of the case is being frustrated by the defendant’s repeated dissatisfaction with his or her successive attorneys”; and even then, “forfeiture cannot occur simply because the effect of the defendant’s conduct is to frustrate the orderly and efficient progression of the case. The defendant must also have the purpose of causing that effect.” State v. Coleman, 2002 WI App 100, ¶¶16-18, 253 Wis. 2d 693, 644 N.W.2d 283.

The supreme court has “recommend[ed]” that before finding a defendant has forfeited the right to counsel because of conduct, a court “should” among other things: 1) provide explicit warnings that, if the defendant persists in specific conduct, the court will find that the right to counsel has been forfeited; and 2) engage in a colloquy with the defendant about the difficulties and dangers of self-representation. State v. Cummings, 199 Wis. 2d 721, 756 n.18, 546 N.W.2d 406 (1996). As Suriano points out, the circuit court did neither of these things; but that doesn’t trouble the court of appeals: “This argument … fails at the outset because the procedure, which focuses on the defendant’s knowledge, is not mandatory.” (¶20). Instead, the court says it must focus on whether Suriano frustrated the orderly and efficient progress of the case, and had the purpose to do so. It finds both elements based on the fact the trial date was changed once, after the second attorney withdrew, and on Suriano’s first attorney’s opinion that Suriano desired to make the proceedings difficult or frustrating. (¶21).

You might be asking, “That’s it? What about the ‘forfeiture of counsel is a drastic remedy’ standard?” Coleman, 253 Wis. 2d 693, ¶25. Good questions. True, as the court of appeals says, the procedure in Cummings is only “recommended”; but the reason for the procedure is to provide a basis for a court to make the required findings in support of forfeiture. Indeed, warning the defendant that forfeiture is the consequence of continuing to tangle with and alienate his lawyers (and thus giving the defendant the chance to straighten up and fly right) is really a sine qua non for finding the defendant’s continuing conduct results from a purpose to impede the progress of the case, as opposed to being the result of the defendant’s personality traits (or, worse, the particular appointed lawyers’ impatience, exasperation, or thin skins). The defendant’s purpose is, after all, the crucial inquiry: “Forfeiture cannot occur simply because the effect of the defendant’s conduct is to frustrate the orderly and efficient progression of the case. The defendant must also have the purpose of causing that effect.” Coleman, 253 Wis. 2d 693, ¶18 (emphasis supplied).

Here the circuit court gave no explicit warning about forfeiture, for the issue of forfeiture was first raised on the same day the state moved for, and the court found, forfeiture—all without allowing Suriano time to prepare a response. The closest the circuit court came was advising Suriano that the SPD had a limit on how many attorneys it would appoint a defendant, which the court referred to as the “three-strike rule” (¶5), but as Coleman said, this type of warning doesn’t provide adequate notice that the defendant is in danger of altogether forfeiting his right to counsel. Id., ¶29. Indeed, it’s hard to see how what happened in this case is meaningfully different from what happened in Coleman, which reversed a forfeiture finding where “the trial court made no inquiries into the nature and intent of Coleman’s conduct before requiring that Coleman proceed without counsel …[,] did not specifically warn Coleman that if he continued to fire his attorneys, his right to counsel would be forfeited …[, and] did not conduct a colloquy to determine that Coleman understood the difficulties of proceeding without counsel ….” Id., ¶26.

Absent any warning about forfeiture, all that supports the finding of forfeiture is the first attorney’s highly dubious, if not outright baseless “opinion” that claiming innocence, and wanting to explore every legal and nonlegal aspect of the case, amounts to an intent to delay the proceedings. (¶¶4, 21). If that’s enough, many a defendant insisting on trial against the advice of counsel could be in danger of forfeiture. What this decision demonstrates, then, is the need to mandate the procedure that Cummings—inexplicably—merely “recommended.”

Finally, Suriano argued the circuit court should have granted his request for additional time to secure a lawyer, but this is curtly rejected based on the flawed conclusion that Suriano forfeited his right to appointed counsel and that the trial court had advised Suriano the trial date wouldn’t be set over again. (¶22).

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