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Counsel – Substitution – Deaf Defendant

State v. Dwight Glen Jones, 2010 WI 72, affirming unpublished opinion; for Jones: Ellen Henak, SPD, Milwaukee Appellate; BiC; Resp.; Reply

¶43  The issues presented are first, whether Jones is entitled to a new trial on the grounds that the circuit court wrongly denied his request for substitution of counsel, and second, whether he is entitled to a new trial on the grounds that such a denial violates rights guaranteed by the Wisconsin Constitution and the Sixth Amendment to the United States Constitution.

¶44  We agree with the court of appeals that the circuit court, in denying Jones’ motion for a new trial, considered the relevant factors, including Jones’ stated reasons for wanting new counsel and his ability to read written English and to speech read, and applied a proper standard of law as set forth in Lomax. Because the circuit court did so and reached a conclusion that a reasonable judge could reach, there was no erroneous exercise of discretion in denying his request for substitution of counsel, and therefore the order denying the post-conviction motion for a new trial was proper.

¶45  We reject as well Jones’ argument that indigent defendants with appointed counsel have a right, under the constitutions of Wisconsin and the United States, to reject appointed counsel in favor of substitute counsel.  Jones has not cited any case where a court has so held, and we are unaware of any. Of course, nothing bars a defendant from requesting substitution of counsel, nothing bars the SPD from choosing to make substitute counsel available, and nothing bars a court from granting such a request. The question is whether a court is required by the Sixth Amendment to the United States Constitution or by Article I, Section 7 of the Wisconsin Constitution to do so solely because a defendant requests it. This court and the United States Supreme Court have held that it does not. As the Seventh Circuit Court of Appeals put it, the Sixth Amendment does not guarantee “a friendly and happy attorney-client relationship,”[18] but rather effective assistance of counsel. Even if Jones was dissatisfied with the number of letters and visits from his counsel, and took offense at counsel’s assessment of the strength of the case, it is evident from the record that counsel visited Jones, wrote him letters, conveyed plea offers, reviewed discovery with him and discussed with him during trial matters such as the defendant’s decision about whether to testify. It is clear that the two communicated and that an adequate defense was presented. There was therefore no violation of Jones’ right to counsel under the Sixth Amendment to the United States Constitution and under the Wisconsin Constitution, and the circuit court properly denied Jones’ motion for a new trial on that basis.

As suggested by the blockquote, when a defendant requests substitute counsel, the trial court must employ the multi-factor test in State v. Lomax, 146 Wis. 2d 356, 359, 432 N.W.2d 89 (1988): “A reviewing court 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.” The court now clarifies that none of these factors are decisive, though some may “weigh more heavily than others … depending on the circumstances,” ¶30. The fact that Jones, for example, made his request more than 3 months before trial made the request “timely,” but “the timeliness factor is by itself not dispositive,” ¶32. The trial court adequately inquired into the request; counsel could (literally) communicate with Lomax despite the latter’s deafness; and, counsel could (figuratively) communicate with him in that the two had a “sufficient rapport,” ¶¶31-34. That’s enough enough to uphold the trial court’s exercise of discretion in denying substitute counsel.

As for the other issue, absolute right to substitution as a matter of state law: the court expressly limits “the right to choice of counsel … to defendants with retained counsel,” ¶38. This, notwithstanding Admin Code PD § 2.04, which mandates assignment of new counsel on the first such request (albeit with certain provisos, including permission of the court). Speaking of which, this was Jones’s first request for substitute counsel and it simply isn’t clear why the trial court didn’t refer this to the local PD office for reassignment. This opinion holds that such referral isn’t mandated, but that doesn’t mean it isn’t good policy. Nothing in the opinion precludes trial judges from giving generous effect to this provision.

Really fascinating concurrence, suggesting that statutorily mandated client reimbursement for PD representation arguably puts appointed counsel on same footing as retained counsel — implication being that PD clients might have same counsel-of-choice right as more solvent counterparts. Concurrence doesn’t embrace that conclusion, though, apparently because it resists the idea that solvent defendants should be privileged with the absolute right to counsel of choice in the first place. (“Because the right to counsel of choice does not apply to an entire class of defendants, Gonzalez-Lopez is difficult to reconcile with the American ideal of equal justice under law,” ¶61.)

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