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Right to Counsel – Forfeiture

State v. Kenneth A. Hudson, 2010AP166-CR, District 3, 8/2/11 

court of appeals decision (not recommended for publication); for Hudson: James A. Rebholz; case activity

By rejecting and failing to cooperate with appointed counsel, after being warned of the consequence, Hudson forfeited his right to representation at trial.

¶27      In accordance with Cummings, Hudson was repeatedly warned by the court—and by outgoing counsel—that Carns would be his final attorney and that Hudson therefore needed to cooperate with him.  This is perhaps the most significant component of the forfeiture analysis.  See Coleman, 253 Wis. 2d 693, ¶¶27-31.  Moreover, Hudson was given a brief additional opportunity to seek counsel at his own expense.

¶28      The court did not engage Hudson in a colloquy to inform him of the difficulties of self-representation.  While such a colloquy is preferred, it is not required.  See id., ¶23.  In addition, the court appointed standby counsel, who was available throughout trial if Hudson desired assistance.[4]

¶29      As to the third and fourth Cummings recommendations, the circuit court made a clear forfeiture ruling, supported by fact findings, memorialized in writing.  Thus, the court fully complied with three of the four nonmandatory procedural recommendations, including the most significant, that Hudson be forewarned of the potential for forfeiting his right to counsel.

¶30      Regarding competency, there is ample evidence in the record as a whole to conclude Hudson was competent to proceed pro se, as set forth in the State’s brief. See Klessig, 211 Wis. 2d at 213-14.  Among other things, Hudson was age thirty-one, with one year of college in business management, and the circuit court had the benefit of psychological evaluations that found Hudson competent to stand trial and undermined his insanity defense.

Hudson raises numerous other issues, which “are either insufficiently developed or constitute harmless error,” ¶16, and won’t be summarized further here. However, the court goes on to say, “Raising every conceivable claim of error rather than ‘winnowing the potential claims so that the court may focus on those with the best prospects,’ is not effective appellate advocacy.  Page v. United States, 884 F.2d 300, 302 (7th Cir. 1989).” At the same time, the court “recognize(s) [that] counsel’s filing here may have been motivated by an attempt to comply with the demands of a difficult client,” ¶16 n.1. Difficult seems like an understatement – “Hudson has had several postconviction/appellate attorneys, and has filed multiple postconviction motions” since his conviction in 2001, id. – which suggests that counsel perhaps should have been lauded, if anything, for completing a thankless task when others couldn’t.

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