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State v. Eric Paul Henry, 2009AP1332-CR, District I, 5/4/10

court of appeals decision (3-judge, not recommended for publication); for Henry: Martin E. Kohler, Craig S. Powell; BiC; Resp.; Reply

Counsel – Request for Substitute
Trial court denial of request for new counsel is a discretionary determination, reviewed deferentially under the factors set forth in State v. Lomax, 146 Wis. 2d 356, 432 N.W.2d 89 (1988), ¶¶17-18. Henry concedes sufficient trial court inquiry into his complaint against counsel, and argues timeliness of his request and breakdown of attorney-client relationship. As to timeliness: Henry became “disillusioned” with counsel because the latter was on vacation 10 days before trial. However, Henry had long known of this fact, and counsel had prepared for trial both before and immediately after his vacation. Henry does not claim that counsel’s “vacation affected his representation in any respect,” ¶22. As to the possibility of “breakdown” in the relationship: Henry might have been “frustrated” that counsel didn’t visit him in jail more frequently, but the record doesn’t show that the relationship “had broken down to the extent that it prevented an adequate defense,” ¶25. Instead, Henry has “merely demonstrated his dissatisfaction with what his attorney told him.”

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