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Counsel – Right to – Review of SPD Denial of Representation, § 977.06(4)

State v. Alvernest Floyd Kennedy, 2008 WI App 186
Pro se


¶11      Kennedy argues that the trial court failed to properly review the SPD’s determination that he did not qualify for the appointment of counsel. In reviewing this issue, the trial court’s findings of fact will not be overturned unless clearly erroneous. See id, 163 Wis.  2d at 511. However, whether Kennedy “was denied a constitutional right is a question of constitutional fact that we review independently.” See id.¶12      Wisconsin Stat. § 977.06(4) provides in pertinent part that: “A circuit court may review any indigency determination upon its own motion or the motion of the defendant and shall review any indigency determination upon the motion of the district attorney or the state public defender.” In Dean, we addressed the same issue, engaged in statutory construction of the statutes, and determined that under the statute the circuit court’s “‘review [of] any indigency determination’ is limited to determining whether the public defender properly followed the legislative criteria.” Id., 163 Wis.  2d at 511 (citation omitted). The legislative criteria are set forth in detail in Wis. Stat. § 977.07(2). In general, the assessment involves a calculation of whether a person’s liabilities are greater than his/her assets. See id.

Issue/Holding2: Circuit court refusal to overturn SPD refusal to appoint counsel, based on defendant’s failure to submit sufficient documentation to make an indigency evaluation is sustained:

¶15      The circuit court’s finding in this regard is not clearly erroneous. It is the defendant’s burden to submit documentation sufficient and current so that an accurate assessment of financial circumstances can be made. See Buelow, 122 Wis.  2d at 472. Although Kennedy submitted exhibits purporting to show that he does not have any income and is unemployed, he also submitted evidence showing ownership of three properties but failed to document income from the properties. Like the trial court, with only this documentation, we cannot conclude that the SPD erred in rendering its non-indigency determination. Accordingly, we must conclude that the trial court did not err in its review of the SPD determination. Based on the circumstances presented to it, this was the only reasonable determination it could make. [4]

Kennedy’s effort to have the circuit court reconsider meets the same fate, largely for the same reason; although he submitted additional documentation, it was incomplete:

¶24      Kennedy then filed a motion with the circuit court, challenging the SPD denial and seeking appointment of counsel. He alleged in the reconsideration motion that the SPD miscalculated his financial status and the trial court erred in relying on the miscalculation. The problem with this argument is that Kennedy failed to submit to the circuit court all the documentation he alleges was filed with the SPD. There is nothing in the record revealing the SPD’s specific calculation, what numbers they used or how they reached their financial ineligibility conclusion. It is Kennedy’s responsibility to make sure that the record contains the necessary information to support his argument. See State Bank of Hartland v. Arndt, 129 Wis.  2d 411, 423, 385 N.W.2d 219 (Ct. App. 1986). Without that information in the record, we assume that the trial court’s determination, based on the SPD’s calculation was correct. See id. (“Given an incomplete record, we will assume that it supports every fact essential to sustain the trial court’s exercise of discretion.”) (citation omitted). Thus, the circuit court did not err in rejecting Kennedy’s arguments on reconsideration relating to the SPD “miscalculation” of his financial status or the circuit court’s reliance thereon.


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