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Substitution of (Retained Counsel), Contingent on Continuance

State v. Anthony L. Prineas, 2009 WI App 28, PFR filed 3/6/09
Prineas: Raymond M. Dall’osto, Kathryn A. Keppel

Issue/Holding: Trial court refusal to allow Prineas to substitute one retained counsel for another absent “an extraordinary reason,” where substitution would necessitate continuance of the scheduled trial over objection of the complainant and her family, upheld as proper exercise of discretion; Carlson v. Jess, 526 F.3d 1018 (7th Cir. 2008), distinguished:

¶24      We reach a different conclusion here. When it made the decision to deny Prineas his counsel of choice, the circuit court properly balanced Prineas’ request against the public’s interest in the prompt and efficient administration of justice. See Lomax, 146 Wis. 2d at 360. Several factors weigh in favor of the court’s exercise of its discretion, for example: Prineas did not specify the length of delay that would be required; he did not dispute his current counsel’s ability to try the case; the court considered the inconvenience to the court and the concerns of the victim; and Prineas provided no reason for substitution and the accompanying delay. See id.; see also State v. Wedgeworth, 100 Wis. 2d 514, 521, 302 N.W.2d 810 (1981) (court may assume that if there is a compelling reason existing why counsel cannot provide adequate representation it would have been mentioned).¶25      We acknowledge that on appeal Prineas presents an extensive argument that mirrors Carlson’s complaints of ineffective assistance of counsel and a breakdown in communication. Those arguments, however, are raised for the first time on appeal and will not be considered.  See Ungar v. Sarafite, 376 U.S. 575, 589 (1964) (on review of circuit court’s decision to deny motion to replace existing retained counsel with new retained counsel, the appellate court should consider “the reasons presented to the trial judge at the time the request [was] denied”). If Prineas had concerns about the quality of representation he was receiving prior to trial, he had the opportunity to so advise the court at the motion hearing. The record demonstrates that the circuit court allowed both attorneys to speak in support of Prineas’ motion, but neither provided a substantive response. As the circuit court notes in is postconviction order, “How could the court use the … balancing test that the court is invited to do by [Prineas] when the court was given nothing to balance from the defendant’s side?”

The trial court was explicit: “The court stated that it would not grant a continuance so close to the trial date unless Prineas or his counsel could ‘give [the court] some extraordinary reason other than just a simple desire to change [attorneys] at this late date,’” ¶4. (¶21: “not something that I would grant except in an extraordinary reason”.) Try as you might, you won’t see “extraordinary reason” among the factors informing discretion, ¶13. And, curiously, the court of appeals says nothing about the distorting effect of this onerous, extrajudicial requirement. Put it like this: a trial court tells you that to get what you want you have to come up something “extraordinary”; you can’t, and so you say little (why bother with a futile exercise?); and then, on appeal, the court of appeals says it’s your fault you didn’t say anything. The court’s rhetorical question—“How could the court use the … balancing test that the court is invited to do by [Prineas] when the court was given nothing to balance from the defendant’s side?”—has it quite backward. How could Prineas give the court something to balance when the court announced it was improperly tilting the scales? Even so, when all is said and done, the only justification for refusing a continuance seems to be the complainant’s desire that the case “be done so she could get on with her life,” ¶4. Is that an appropriate basis to deny substitution of counsel? Interesting question; too bad the court didn’t forthrightly confront it. Instead, the court appears to be more interested in limiting Carlson to its facts. Coincidence that 2 of the 3 judges on Prineas’ panel were on Carlson’s (overturned) panel? You be the judge.

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