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State v. Edward J. Zimbal, 2015AP1292-CR & 1293-CR, petition for review granted 9/13/16

Review of an unpublished per curiam court of appeals decision; case activity (including briefs)

Issue (composed by On Point)

Whether the circuit court erred in denying Zimbal’s post-remand substitution request as untimely where Zimbal orally requested that the judge recuse himself the day before remittitur and was not appointed counsel until after the 20-day time limit?

Back in 2013, the court of appeals held Zimbal’s pleas to stalking and bail jumping not knowing, voluntary, and intelligent, and so reversed the trial judge’s denial of his postconviction motion for plea withdrawal. The day before remittitur, the trial court held a status conference at which Zimbal, who had not yet been appointed new trial counsel, asked the judge to “recuse” himself and said his appellate lawyer had told him he had this right. The circuit judge, noting that Zimbal “probably [hadn’t] done any research,” denied the motion and invited counsel to file one in the future.

Zimbal wrote to the court of appeals complaining of the denial, but the clerk of that court responded noting that it no longer had jurisdiction over the case.

SPD appointed Zimbal counsel 24 days after remittitur, and counsel eventually filed a motion for substitution of judge. The problem: the provision for post-appeal substitution, Wis. Stat. § 971.20(7), permits filing a request “within 20 days after the filing of the remittitur.” So, the trial court denied the motion, and eventually presided over the trial at which Zimbal was convicted.

You might expect Zimbal–who, let’s recall, was an indigent defendant who wanted an attorney but was temporarily, by no fault of his own, without one–to get the benefit of the doubt in his repeated pro se attempts to claim a right to which he was statutorily entitled.  You’d be wrong, at least so far, as the court of appeals deployed a technical (and questionable) reading of the statute and case law to deny him relief.

As to his oral request for “recusal,” the court liberally (and reasonably, under the circumstances) construed it as a request for substitution. (¶1 n.1). It went on, however, to note that the statute says such a request “may be filed,” and provides an example form to follow. From this scant evidence the court of appeals concluded that the statute requires a substitution request be in the form of a written motion. (¶5). And while Zimbal did write something concerning his substitution request, he sent it to the wrong court–the court of appeals (which makes a certain amount of sense, given that the circuit court had already expressly denied his request).

Regarding his counsel’s eventual written substitution, Zimbal argues that equitable tolling should render it timely, since, again, counsel was not even appointed until after the substitution deadline had passed. The court of appeals distinguished Baldwin v. State, 62 Wis. 2d 521, 530, 215 N.W.2d 541 (1974), by noting that in Zimbal’s case, compliance with the statute was not “literally impossible” –that is, despite his lack of counsel and the circuit court’s earlier denial of his request, Zimbal himself could have consulted the statutes and become enlightened as to what, in the court of appeals’ newly-announced view, is the only proper form for a substitution request. (¶¶7-8).

With the grant of Zimbal’s petiton for review, we’ll see whether SCOW is any more solicitous toward an indigent defendant’s diligent–though (perhaps) technically flawed–attempts to protect his rights.

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