2017 WI 42
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP959-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Jack M. Suriano,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 369 Wis. 2d 73, 879 N.W.2d 809
(WI Ct. App. 2016 – Unpublished)
OPINION FILED: April 27, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 2, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Door
JUDGE: D. T. Ehlers
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J. dissents, joined by BRADLEY, A.
W., J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
and oral argument by Colleen Marion, assistant state public
defender.
For the plaintiff-respondent the cause was argued by Kevin
M. LeRoy, deputy solicitor general, with whom on the brief was
Daniel P. Lennington, assistant attorney general, Misha
Tseytlin, solicitor general and Brad D, Schimel, attorney
general.
An amicus curiae brief was filed by Kelli S. Thompson,
state public defender and Joseph N. Ehmann, regional attorney
manager, Wisconsin State Public Defender. Oral argument by
Joseph N. Ehmann.
2
2017 WI 42
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP959-CR
(L.C. No. 13CM249)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. APR 27, 2017
Jack M. Suriano, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. We review whether Jack
Suriano's actions, which caused three attorneys appointed by the
State Public Defender to withdraw in rapid succession,
constituted forfeiture of his right to counsel, and whether the
right-to-counsel warnings and procedure this court recommended
in State v. Cummings, 199 Wis. 2d 721, 546 N.W.2d 406 (1996),
should be made mandatory. We conclude that Suriano forfeited
his constitutional right to counsel by repeatedly refusing to
cooperate with his attorneys, constantly complaining about their
performance, verbally abusing them, and triggering one lawyer's
fear of a physical threat. Suriano's dilatory and manipulative
No. 2015AP959-CR
game-playing frustrated the progression of this case and
interfered with the proper administration of justice. We uphold
the circuit court's1 determination that Suriano forfeited his
right to counsel, and we affirm the court of appeals decision.2
We see no reason to change the forfeiture standard this court
set forth in Cummings and decline Suriano's request to modify
it. Instead, we reaffirm our holding that right-to-counsel
warnings in forfeiture cases and the procedures suggested by the
Cummings dissent are strongly recommended, but not required. We
affirm.
I. BACKGROUND
¶2 In October 2013, Suriano obstructed the Door County
Sheriff's Department and sanitation officials who came to his
home with a warrant to take a soil sample from the property.
Police arrested Suriano, and he was charged with obstructing an
officer, contrary to Wis. Stat. § 946.41(1) (2013-14).3 Due to
Suriano's indigence, the State Public Defender ("SPD") appointed
Attorney Grant Erickson as his lawyer.
¶3 Less than one month later, Erickson filed a motion to
withdraw telling the circuit court he and Suriano had "differing
1
The Honorable D. Todd Ehlers of Door County Circuit Court
presided.
2
State v. Suriano, No. 2015AP959-CR, unpublished slip op.
(Wis. Ct. App. Mar. 15, 2016).
3
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
2
No. 2015AP959-CR
opinions and objectives for the handling and resolution of this
case." At the hearing on the withdrawal motion, the circuit
court asked Suriano if he opposed the motion. Suriano answered:
"Well, I think we need to have some testimony on that. Maybe if
I could put Grant on the stand and ask him a question or two.
Get some information on the record here." Suriano asked
Erickson what Erickson's end goal was and how it differed from
Suriano's end goal. Erickson testified that, while his goal was
to resolve the case, Suriano's goals included:
To take depositions of all the parties and explore all
contractual relationships;
To prove his innocence;
"[T]o explore every legal or even nonlegal aspect of this
case" to make things difficult and frustrate "the legal
system";
"To be an ass"; and
"[T]o make it difficult or frustrating for the court
system to proceed" because Suriano believed he was
improperly charged.
After this testimony, the circuit court again asked Suriano if
he opposed Erickson's motion. Suriano did not directly answer
the court's question; instead, he responded: "Anybody would
probably be better so --." Interpreting this answer as a "no,"
the circuit court granted the motion but warned Suriano that it
"did not anticipat[e]" changing the February 2014 pretrial and
March 2014 trial dates that remained on the calendar.
3
No. 2015AP959-CR
¶4 The SPD gave Suriano a second attorney, Linda
Schaefer, who very quickly moved to withdraw, averring that "a
significant conflict ha[d] developed" so she could "no longer
effectively represent Mr. Suriano." At the February 2014
pretrial hearing, the circuit court addressed Schaefer's motion
and asked Suriano if he wanted to comment on it. Suriano said
"No," and the circuit court granted the motion. This second
withdrawal clearly bothered the circuit court, prompting a
warning for Suriano:
[T]he other thing I would suggest, Mr. Suriano, you do
is call the public defender's office. You will now be
on your third attorney appointed with the public
defender's office. I think they have a three strike
rule. Talk to them about that. . . . [W]hen
individuals go through three attorneys, they don't
appoint an attorney any longer so maybe you need to
call them and talk to them about that also, sir,
because, as I said, you are now going to be on your
third attorney with the public defender's office.
When discussing the existing trial date, Suriano asked the
circuit court to send communications directly to him "rather
than sending it to someone who won't share it with me," but the
court explained that "all correspondence and communication from
the Court goes through your attorney, not to you directly."
¶5 The SPD appointed Raj Kumar Singh as Suriano's third
attorney. At an April 2014 status conference, Singh told the
circuit court:
Suriano insisted Singh remind the court Suriano refused
to enter his own plea at his initial appearance and
instead stood "mute";
4
No. 2015AP959-CR
Suriano wanted the case dismissed;
Great "discord" already existed between Suriano and Singh
on "the law that relates to this case"; and
Suriano was completely dissatisfied with Singh's
"performance so far as his lawyer," causing Singh to
think Suriano "really wants to represent himself."
Then, Singh asked the circuit court to question "Suriano
directly about whether or not he wants me to continue as his
lawyer." Singh requested the circuit court's help to make sure
Suriano understood:
That if he wants anybody, whoever it is, let's say
it's me to represent him as an attorney, then he's
reserving three things for himself: How to plead;
whether or not to waive his right to a jury. Now then
there is more to that than that, but that's his part.
And whether or not to testify in his own defense or
remain silent. He needs to understand, other than
those three things, all of the other decisions are
left to the attorney, if you agree. And with that
understanding, does he want to have an attorney
representing him and, specifically does he want me
because I have reason to doubt that he does want me
and I have reason to doubt that he wants an actual
attorney in general.
¶6 The circuit court then asked Singh about the SPD's
"three-strike" rule——that is, whether the SPD would appoint
another attorney when a defendant has already had three SPD-
appointed attorneys who withdrew.4 Singh responded he could not
4
The Wisconsin State Public Defender, appearing as amicus,
said the SPD does not practice a "three-strike" rule. SPD
amicus counsel explained that indigent defendants do not have a
constitutional right to a successor counsel, but Wisconsin rules
do allow one substitute appointment regardless of the reason
when it "is the only such request made by the person" and the
(continued)
5
No. 2015AP959-CR
speak for the SPD, but he had "grave doubts" about whether the
SPD would appoint a fourth attorney if Suriano fired Singh.
Singh said everyone should "assume that if I end up off the case
he's going to have to either represent himself [or] get a lawyer
on the economy." The court then specifically asked Suriano if
he wanted Singh to continue as his lawyer. Suriano did not
directly answer the court's question; instead, he rattled off a
series of complaints about Singh, claimed he had not "received
any value" from the SPD, and contended that, although his case
should be "very easy to win on dismissal," none of his lawyers
would pursue it.
¶7 Suriano proceeded to ask the circuit court how he
could get a court-appointed attorney. The court explained how
the fees and billing work with a court-appointed attorney, but
told Suriano it would not appoint an attorney if Suriano was
eligible for a SPD appointment. The circuit court again warned
Suriano that, if he dismissed three SPD-appointed lawyers, the
SPD would not give him another one.
"change in counsel will not delay the disposition of the case or
otherwise be contrary to the interests of justice." See Wis.
Admin. Code § PD 2.04(1)(May 2010). SPD will continue to try to
appoint counsel beyond the scope of the rule, but it faces
challenges when making fourth, fifth, and sixth appointments for
defendants. The record here nonetheless reflects that the SPD
refused to appoint Suriano a fourth attorney, and the denial
letter did not give a reason for the decision. At oral
argument, SPD amicus counsel suggested that the denial was
linked to the circuit court's forfeiture finding, but nothing in
the record confirms that inference.
6
No. 2015AP959-CR
¶8 Suriano asked whether the circuit court would appoint
counsel if he ended up "getting dumped by the public defender's
office." The court cautioned: "I will take up your petition
when it's filed. I'm not saying I will grant it or I won't
grant it. I'm just telling you that's the procedure and that's
how the case gets billed." Then the court again asked Suriano
if he wanted "to get rid" of Singh as his attorney. Suriano
again refused to answer the question directly with a yes or no.
Instead, he: (1) criticized Singh's representation as not
benefitting him; (2) said he "hesitate[ed] to go around firing
people, especially because there might be consequences"; and
(3) suggested Singh withdraw because that might make Suriano
look better to the SPD. Attorney Singh explained he was not
filing a motion to withdraw but wanted to make a record on the
issues that arose since his appointment:
He was unable to speak to Suriano by phone, as Suriano
claimed he did not have a phone;
Suriano refused to meet in person with him on several
occasions;
He had sent many letters to Suriano and received many
emails from Suriano, although he told Suriano it is not
his practice to confer with clients by email;
Suriano finally accepted that the law does not allow for
depositions in his case, but Suriano made Singh prove
this by showing him a copy of the statute instead of
taking his lawyer's word;
7
No. 2015AP959-CR
Singh saw no merit in the motion to suppress Suriano
wanted to file; and
Suriano did not want a trial and wanted the charge
dismissed.
¶9 After a brief back and forth with the circuit court in
which Suriano insisted that it was his attorney who wished to
withdraw, the court stopped the exchange: "I'm done going
around in circles here this afternoon. We're moving forward
with this case. It's now going on seven months old. It needs
to be scheduled and resolved one way or another." Singh then
told the court Suriano forbade him from filing a motion to
withdraw without Suriano's preapproval, Suriano wanted to make
all the lawyering decisions, and Suriano just wanted Singh "to
be his clerk typist." Singh urged the court to insist Suriano
"make a decision right now does he want to represent himself or
does he want [Singh] to represent him." When the court asked
him once again, Suriano talked around the issue and suggested
the court schedule another hearing rather than the trial. The
court then allowed Singh to try to get a direct answer from
Suriano by asking, "Mr. Suriano, would you like me to go forward
as your attorney on this case knowing what I have informed you
over the past weeks of our relationship? Yes or no, please."
Suriano refused to answer yes or no, responding, "I haven't
considered all of that." The court ruled Suriano's refusal to
answer meant Singh would remain as his lawyer. The court
scheduled the jury trial for June 2014.
8
No. 2015AP959-CR
¶10 One month later, Singh filed a motion to withdraw,
titled, "Defendant's Motion for an Order of Attorney's
Withdrawal." He explained to the circuit court that Suriano
emailed the SPD Director of Appointments and accused Singh of
being a liar and refusing to communicate, investigate, seek
discovery, or prosecute a motion to suppress. Suriano's email
included disparaging remarks and accusations against Singh,
ending with: "I have not received legitimate representation. I
need a real attorney." In an email directly to Singh, Suriano
leveled a similar attack. Singh told the court:
He will not cooperate with me at all. He wants to
micromanage what I do. He wants to basically have me
be, figuratively speaking, the fingers on his hand,
and I've tried to explain to him that's simply not
acceptable. It's not acceptable to anybody within the
practice of law. I can't do that. I have to be like
a medical doctor. I have to take full responsibility
for what I do. I have repeatedly explained to
Mr. Suriano that he has -- if he wishes to be
represented, if that's the case, then he has three
decisions and only three that are kept within his
purview: How to plead, whether or not to testify in
his own defense, and whether or not to try to [or]
waive jury. Other than that, he is allowing the
attorney to make all other decisions and he has
absolutely expressed to me his -- his rejection of
that.5
5
SPD asks that we remind circuit courts that attorney
withdrawal motions should not be granted simply based on
disagreement about legal strategy; instead, circuit courts
should advise defendants which legal choices belong to the
defendant and which ones counsel controls. Although we agree
this procedure may be beneficial, we recognize that
circumstances in some cases might prevent a circuit court from
doing so. We do encourage circuit courts, where circumstances
allow, to instruct SPD-appointed lawyers and their clients about
the choices for which each is responsible and that disagreement
(continued)
9
No. 2015AP959-CR
¶11 When the circuit court asked Suriano if he "opposed
[Singh's] . . . request to be allowed to withdraw," Suriano
again refused to answer yes or no, saying only: "I'm opposed to
the technicalities." Bothered that Singh labeled the motion
"[d]efendant's motion for order to withdraw as if I'm firing
him," Suriano told the court that if Singh "put up a clean
motion to withdraw, I won't object." In other words, Suriano
wanted Singh to withdraw rather than making it look like Suriano
fired him. Suriano then launched into a complaint about Singh
that covers three transcript pages. He did not deny sending the
attacking emails; indeed, he told the court he would say it all
over again because "[i]t's all true." Singh advised the court:
"[T]he hostility and anger that this man has shown to me is such
that I will not meet with him at any location that does not have
screening with a metal detector. I will not do it."
¶12 After Suriano continued complaining about Singh's
representation, the prosecutor added: "I believe an ample basis
both because of the number of attorneys and the reasons on the
on legal strategy alone may be insufficient for withdrawal.
Specifically, defendants retain "the ultimate authority to make
certain fundamental decisions regarding the case, as to whether
to plead guilty, waive a jury, testify in his or her own behalf,
or take an appeal." See Jones v. Barnes, 463 U.S. 745, 751
(1983). All other tactical decisions, "including the objections
to make, the witnesses to call, and the arguments to advance"
are "of practical necessity" controlled by counsel because
"[t]he adversary process could not function effectively if every
tactical decision required client approval." See Gonzales v.
United States, 553 U.S. 242, 249 (2008)(quoting Taylor v.
Illinois, 484 U.S. 400, 418 (1988)).
10
No. 2015AP959-CR
record given by two out of the four[6] attorneys that have
represented Mr. Suriano representing Mr. Suriano's behavior that
if you grant the motion to withdraw I think you should also find
the defendant has forfeited his right to public representation
and that he either goes alone or goes out and hires his own
lawyer."
¶13 Finding the relationship irretrievably broken, the
circuit court granted Singh's motion to withdraw. The circuit
court then gave Suriano an opportunity to be heard on the
State's request that the court find forfeiture. Suriano argued
he wanted an attorney to represent him and a forfeiture finding
would "be a real prejudice." He talked about how each of his
SPD-appointed lawyers had failed him and how he wanted his
motion to suppress reinstated. The circuit court engaged
Suriano in a colloquy about his education and learned Suriano
had two college degrees——geology and chemistry——and was one
credit short of a graduate degree.
¶14 Determining Suriano forfeited his right to counsel,
the circuit court advised him:
[I]f you want to go out and hire an attorney or you
want to contact the state public defender's office and
see if they will appoint another attorney for you,
that is absolutely your right, sir. When I'm saying
6
This opinion makes an occasional reference to a fourth
SPD-appointed lawyer who attended Suriano's first court
appearance. This attorney's involvement was limited and
occurred even before the SPD made an official appointment; thus,
our analysis focuses on the three attorneys who were officially
appointed and who formally withdrew from representing Suriano.
11
No. 2015AP959-CR
you forfeited your right to have an attorney, that
doesn't mean you can't get an attorney, but I'm
finding your actions have made it clear that you will
not cooperate with any attorney.
The court went on to say it had not in "32 years of experience"
ever heard an attorney refer to a client on the record "as an
ass."
¶15 The circuit court found Suriano "clearly" had a
problem getting along "with any attorney." It warned him that
the June 2014 trial was "not coming off the calendar" and he
would be representing himself if he did not "get a new attorney"
before the trial. In no uncertain terms, the court warned
Suriano it was done playing his game: "Yes. It's a game, Mr.
Suriano, and I'm done playing it. This case is moving forward.
It's going to be tried on June 4th." Suriano said he wanted to
pursue a court-appointed attorney if the SPD would not give him
another one. The circuit court told him he could get a form
from the court clerk to petition for an appointment, but the
court would "take up" his petition "when and if it is filed" and
only if the SPD said he was ineligible for another appointment.
¶16 The SPD denied Suriano's request for a fourth
attorney, and Suriano looked for an attorney willing to take his
case under a court appointment. At a hearing in late May 2014,
days before the trial date, Suriano asked the circuit court to
appoint Eric Wimberger, even though Wimberger was not available
for the June 4th trial date. The circuit court refused the
request, explaining that it made it "very clear" it was "not
moving the trial date." After the circuit court denied
12
No. 2015AP959-CR
Suriano's suppression motion, it reminded him the jury trial
would occur June 4th and he should "be ready to proceed." When
Suriano asked the court if it would still appoint a lawyer for
him if he could find someone to make the trial date, the court
answered:
No. You have to hire an attorney. I've already
found you have forfeited your right to have an
attorney. If you hire an attorney yourself, you can
do so, but I am not appointing one on your behalf.
[]Because by your own actions you've now lost the
right to have a public defender which would be at no
expense to you, and I've already made a clear record
regarding that. So no. If you find somebody else
that's available to take this on June 4th and you file
another petition for Court-appointed counsel, I'm
denying your request for Court-appointed counsel.
You've forfeited your right to have an attorney
through those means.
(Emphasis added.)
¶17 A week later, two days before trial, Suriano again
asked the circuit court to appoint counsel. The circuit court
explained its basis for again denying the request:
The circuit court made it "very clear" when Suriano was
still represented by SPD-appointed lawyers that Suriano
was "starting to get dangerously close to a situation
where [he was] not going to be eligible any longer for
public defender representation."
That's exactly what happened.
Although the court did not blame Suriano entirely, it
found he was "an active participant in why those
13
No. 2015AP959-CR
situations [with his three SPD-appointed lawyers] went
haywire."
As a result, Suriano did not qualify for an SPD-appointed
attorney and he did not qualify for court-appointed
counsel.
Although the circuit court told Suriano his actions caused him
to forfeit his right to appointed counsel, it indicated Suriano
could still hire a private, paid attorney, so long as the
attorney would be ready for the June 4th trial.
¶18 Suriano then re-argued the suppression motion that had
been denied a week earlier until the circuit court stopped him
for repeating the same points over and over. Suriano then asked
the court if he could call more witnesses to testify on the
suppression motion. The court refused the request, but Suriano
persisted, saying he had "completely new evidence." The court
responded, "No. No.", and told Suriano, "We're not going to
continue to go round and round regarding this."
¶19 Suriano represented himself at the one-day trial, and
the jury found him guilty of obstruction. The circuit court
sentenced him to a $100 fine, plus costs, and 10 days in jail,
which would be "permanently stay[ed]" if Suriano paid the fine
within 60 days. Suriano appealed with the help of a newly-
appointed SPD-appellate lawyer, and his sentence has been stayed
pending appeal. The court of appeals affirmed the judgment, and
we granted Suriano's petition for review.
14
No. 2015AP959-CR
II. STANDARD OF REVIEW
¶20 Whether Suriano forfeited his constitutional right to
counsel is a question of constitutional fact, which presents a
"mixed question of law and fact." See State v. Martwick, 2000
WI 5, ¶¶16-17, 231 Wis. 2d 801, 604 N.W.2d 552. We review
historical and evidentiary facts under a clearly erroneous
standard, but the ultimate determination as to whether a
constitutional right was violated is a question of law we review
independently. Id.
III. ANALYSIS
A. Legal Principles
¶21 Suriano is guaranteed the right to counsel by the
Sixth Amendment to the United States Constitution, see Gideon v.
Wainwright, 372 U.S. 335, 339-40, 345 (1963), and Article I,
Section 7 of the Wisconsin Constitution, see Cummings, 199
Wis. 2d at 748. "The scope, extent, and, thus, interpretation
of the right to the assistance of counsel is identical under the
Wisconsin Constitution and the United States Constitution."
State v. Klessig, 211 Wis. 2d 194, 202-03, 564 N.W.2d 716
(1997). Indigent defendants who cannot afford to pay for an
attorney, however, do not have a right to an attorney of their
own choice or the right to successive appointments. See United
States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006). A defendant
who acts in a voluntary and deliberate way that frustrates "the
orderly and efficient progression of the case" forfeits his
right to counsel. Cummings, 199 Wis. 2d at 752, 753 n.15.
"[T]he Sixth Amendment does not bestow upon a defendant absolute
15
No. 2015AP959-CR
rights and . . . a defendant can forfeit Sixth Amendment rights
through his or her own disruptive and defiant behavior." Id. at
757 (citing Illinois v. Allen, 397 U.S. 337, 342-43 (1970))
(upholding forfeiture of right to be present at trial where
defendant's behavior interfered with process of justice).
B. State v. Cummings' Waiver-Forfeiture Framework
¶22 In 1996, this court declared the standard to use in
forfeiture of trial counsel cases. See Cummings, 199 Wis. 2d at
751-52. Addressing forfeiture, this court acknowledged two
situations where a defendant loses his right to counsel: (1) a
defendant may knowingly, intelligently, and voluntarily waive
his right to counsel; and (2) a defendant may forfeit his right
to counsel. Cummings, 199 Wis. 2d at 752.
¶23 In a waiver situation, the circuit court must hold a
hearing and engage in a colloquy with the defendant to ensure
the defendant: "(1) made a deliberate choice to proceed without
counsel, (2) was aware of the difficulties and disadvantages of
self-representation, (3) was aware of the seriousness of the
charge or charges against him, and (4) was aware of the general
range of penalties that could have been imposed on him."
Klessig, 211 Wis. 2d at 206. The circuit court must also
determine whether a defendant is competent to represent himself.
Id. at 212.
¶24 Forfeiture requires very different procedures covering
a variety of scenarios where a defendant's conduct results in
the involuntary loss of counsel by operation of law. See
Cummings, 199 Wis. 2d at 752-58. "[T]he triggering event for
16
No. 2015AP959-CR
forfeiture is when the 'court becomes convinced that the orderly
and efficient progression of the case [is] being frustrated.'"
Id. at 753 n.15 (quoted source and ellipsis omitted). Scenarios
triggering forfeiture include: (1) a defendant's manipulative
and disruptive behavior; (2) withdrawal of multiple attorneys
based on a defendant's consistent refusal to cooperate with any
of them and constant complaints about the attorneys'
performance; (3) a defendant whose attitude is defiant and whose
choices repeatedly result in delay, interfering with the process
of justice, see id. at 752-57, and (4) physical or verbal abuse
directed at counsel or the court. See United States v. Leggett,
162 F.3d 237, 251 (3d Cir. 1998) (defendant's physical attack on
counsel constituted forfeiture); United States v. McLeod, 53
F.3d 322, 325 (11th Cir. 1995) (verbal abuse and threats to sue
counsel constituted forfeiture). When those situations arise, a
defendant loses his right to counsel by "operation of law"——not
by express verbal consent but because the defendant's voluntary
and deliberate actions told the circuit court he would make it
"impossible" for any attorney to be able to represent him.
Cummings, 199 Wis. 2d at 753-54.
¶25 Although the United States Supreme Court has not yet
spoken on the issue presented here, numerous state and federal
courts have addressed issues involving waiver or forfeiture of
the right to counsel. See, e.g., Tennessee v. Carruthers,
35 S.W.3d 516, 546-49 & n.26 (Tenn. 2000) (collecting cases).
Some of those courts follow the same approach as this court in
Cummings, limiting discussion to waiver or forfeiture. See,
17
No. 2015AP959-CR
e.g., Gilchrist v. O'Keefe, 260 F.3d 87, 95 (2d Cir. 2001)
(upholding forfeiture of counsel; concluding the United States
Supreme Court allows both waiver and forfeiture of
constitutional rights); Leggett, 162 F.3d at 251.
¶26 Other courts have added a third category called
"waiver by conduct" to cover the "hybrid situation" between
forfeiture and express waiver. See, e.g., United States v.
Goldberg, 67 F.3d 1092, 1099-1103 (3d Cir. 1995); see also Maine
v. Nisbet, 2016 ME 36, ¶¶24-36, 134 A.3d 840, 851-53 (adopting
Goldberg approach). The Third Circuit in United States v.
Goldberg determined loss-of-counsel cases fall into three
categories:
(1) Express Waiver. This involves the typical situation
where a defendant wants to exercise the right to self-
representation. It requires a knowing, intelligent
and voluntary waiver of the right to counsel,
including a colloquy with the defendant, warnings to
the defendant of the risks associated with self-
representation, and a determination that the defendant
is competent to represent himself. Id. at 1099-1100.
(2) Forfeiture. This covers circumstances where a
defendant's behavior, such as abusing or threatening
counsel or demanding that counsel "engage in unethical
conduct," results in loss of counsel without warnings,
"regardless of the defendant's knowledge" that he is
losing the right to counsel and "irrespective of
18
No. 2015AP959-CR
whether the defendant intended to relinquish the
right." Id. at 1100.
(3) Waiver by conduct. This covers a "hybrid situation"
between forfeiture and express waiver. It arises
where the defendant engages in dilatory behavior but
does not expressly waive his right to counsel. In
these situations, the Goldberg court held defendants
must be warned that they will lose the right to
counsel unless their dilatory behavior stops, and the
warning must include the risks of proceeding pro se.
If the defendant's bad behavior continues, it "may be
treated as an implied request to proceed pro se, and
thus, as a waiver of the right to counsel." Id. at
1100-1101.
The Goldberg court discussed concerns about recognizing the
differences between forfeiture and waiver by conduct because
these two categories overlap. Id. at 1101-1102.
¶27 Suriano urges this court to adopt the three-tiered
approach used in Goldberg. We decline this request. Since
1995, when Goldberg was decided, many state supreme courts have
adopted the three-tiered approach. See, e.g., Bultron v. State,
897 A.2d 758, 763-65 (Del. 2006); Nisbet, 134 A.3d 840, ¶¶24-36;
State v. Jones, 772 N.W.2d 496, 504 (Minn. 2009). Those courts,
however, had not previously decided to review forfeiture
situations under a two-tiered "express waiver—forfeiture"
framework like this court did in Cummings. This court,
moreover, chose the two-tiered framework even though Goldberg
19
No. 2015AP959-CR
introduced its three-tiered approach to loss-of-counsel cases
the year before we decided Cummings. This court could have
adopted the three-tiered Goldberg approach but it did not do so.
Rather, this court addressed loss-of-counsel issues as either
forfeiture or express waiver. See Cummings, 199 Wis. 2d at 752-
58.
¶28 We acknowledge the substantial body of case law on
this issue since our decision in Cummings, but we remain
unconvinced that a switch to Goldberg's three-tiered approach is
warranted. The United States Court of Appeals for the Second
Circuit in Gilchrist v. O'Keefe, authored by then-Judge Sonia
Sotomayor, analyzed the issue under the traditional two-tiered
approach, and although the decision referred to Goldberg, see
Gilchrist 260 F.3d at 98-99, it made no reference to the three-
tiered approach or the hybrid category of waiver by conduct.
Gilchrist held:
Having thus established that Supreme Court precedent
recognizes a distinction between waiver and forfeiture
of constitutional rights, and that there is no Supreme
Court holding either that an indigent defendant may
not forfeit (as opposed to waive) his right to counsel
through misconduct nor a general Supreme Court holding
that a defendant may not forfeit a constitutional
right, we conclude that the state court rulings [that
the defendant forfeited his right to counsel] were not
'contrary to' clearly established federal law as
determined by the Supreme Court.
Id. 260 F.3d at 97. The Second Circuit's analysis convinces us
we got it right in Cummings.
¶29 Significant to our conclusion is the absence of any
United States Supreme Court case addressing this issue. The
20
No. 2015AP959-CR
approach this court adopted in 1996 has not been rejected by the
Supreme Court and is sound in principle. Wisconsin courts have
followed this approach for over twenty years; it has provided a
workable test and clear guidance for circuit courts, lawyers,
and litigants; and we have not been presented with any
justification to abandon that existing law. See Johnson
Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶¶94-
100, 264 Wis. 2d 60, 665 N.W.2d 257 (discussing the principles
of stare decisis). "It is not a sufficient reason for this
court to overrule its precedent that a large majority of other
jurisdictions, with no binding authority on this court, have
reached opposing conclusions." Id., ¶100. The Cummings
approach using only forfeiture and express waiver protects a
defendant's right to be represented by counsel and the right to
choose self-representation, but it also facilitates the circuit
courts' duty to administer justice in an orderly, timely, and
dignified manner. We reaffirm our holding in Cummings utilizing
the two-tiered, loss-of-counsel analysis.
C. Applying the Cummings Test to Suriano
¶30 Applying Cummings here, we conclude Suriano forfeited
his right to counsel. Suriano's case falls into the forfeiture
category because there is no dispute he did not expressly waive
his right to counsel. A defendant forfeits his or her right to
counsel "when the 'court becomes convinced that the orderly and
efficient progression of the case [is] being frustrated,'"
Cummings, 199 Wis. 2d at 753 n.15 (quoted source and ellipsis
21
No. 2015AP959-CR
omitted), by the defendant's voluntary and deliberate choices,
id. at 752.
¶31 The record supports the circuit court's finding that
Suriano made it clear he would not cooperate with any attorney.
His actions caused three SPD lawyers to withdraw in rapid
succession. One of those lawyers specifically testified that
Suriano was trying to frustrate the progress of the case and
cause delay because Suriano believed the case should be
dismissed. Another one of his lawyers felt so threatened by
Suriano that he would not meet with him unless he could be sure
Suriano did not have a weapon. Suriano verbally abused at least
one of his lawyers, admitted in open court that he did so, and
declared he would do it again because the disparaging verbal
assaults were all "true." The circuit court found Suriano was
playing games and manipulating the case to delay the trial.
Suriano did not say he wanted to represent himself, but his
repeated dilatory tactics and abusive behavior expressed loudly
and clearly that he would make it impossible for any attorney to
represent him. This is sufficient to satisfy the forfeiture
standard and supports the circuit court's finding of forfeiture
in this case. Suriano's voluntary and deliberate choices
frustrated the orderly and efficient progression of this case.7
¶32 We also reject Suriano's contention that a defendant
cannot forfeit the right to counsel unless the defendant's
7
There is no argument that the choices Suriano made were
involuntary or not deliberate.
22
No. 2015AP959-CR
actions were done with an intent or purpose to delay. Tying the
frustration of the orderly and efficient progression to a
defendant's motivation or purpose for engaging in dilatory
tactics would not provide a workable standard, as circuit courts
cannot read the minds of the defendants who appear before them.
Defendants choosing dilatory tactics do not often disclose the
true purpose behind such conduct. Circuit courts can, however,
observe a defendant's voluntary and deliberately dilatory
actions and determine that those actions resulted in a delay and
reached the level of frustrating the orderly and efficient
progression of the case. Moreover, a defendant who subjects
counsel to physical or verbal abuse or refuses to cooperate with
a succession of appointed attorneys may not be acting with
intent to delay proceedings; nevertheless, such behavior
frustrates the orderly and efficient progression of the case,
and it is this resulting obstruction of the proper
administration of justice that triggers forfeiture, regardless
of whether delay was the defendant's objective. Accordingly, we
overrule the contrary language in State v. Coleman, 2002 WI App
100, ¶18, 253 Wis. 2d 693, 644 N.W.2d 283, and any other case
requiring proof of intentional, purposeful delay.8
8
State v. Coleman, 2002 WI App 100, ¶18, 253 Wis. 2d 693,
644 N.W.2d 283, held: "[F]orfeiture cannot occur simply because
the effect of the defendant's conduct is to frustrate the
orderly and efficient progression of the case. The defendant
must also have the purpose of causing that effect." We overrule
the language requiring proof of the defendant's purpose or
motivation. The standard set forth in State v. Cummings and
reaffirmed here is that forfeiture occurs when the circuit court
(continued)
23
No. 2015AP959-CR
D. Right-to-Counsel Warnings and Procedure in Forfeiture Cases
¶33 Suriano also requests that this court make mandatory
the right-to-counsel warnings and procedure recommended in
Cummings. We reject this request. In Cummings, the dissent
advocated for mandatory right-to-counsel warnings plus specific
procedural steps in all forfeiture cases. See Cummings, 199
Wis. 2d at 764 (Geske, J., dissenting).9 The Cummings majority
becomes convinced that the defendant's voluntary and deliberate
conduct frustrated the orderly and efficient progression of the
case. See State v. Cummings, 199 Wis. 2d 721, 753 n.15, 546
N.W.2d 406 (1996).
Our opinion does not foreclose a circuit court from using a
defendant's specific intent or purpose "to frustrate the orderly
and efficient progression of the case" in its analysis, as the
circuit court implicitly did in this case. Proof of the
defendant's actual motivation underlying his or her behavior,
however, is not required to meet the forfeiture standard. The
Cummings' standard is satisfied when the 'court becomes
convinced that the orderly and efficient progression of the case
[is] being frustrated,'" Cummings, 199 Wis. 2d at 753 n.15
(quoted source and ellipsis omitted), by the defendant's
voluntary and deliberate choices. The effect of the defendant's
voluntary and deliberate actions, even absent any express intent
to delay, controls.
9
The Cummings dissent advocated for the following warnings
and procedure in all forfeiture cases:
(1) [E]xplicit warnings that, if the defendant
persists in "X" [specific conduct], the court will
find that the right to counsel has been forfeited and
will require the defendant to proceed to trial pro se;
(2) a colloquy indicating that the defendant has been
made aware of the difficulties and dangers inherent in
self-representation; (3) a clear ruling when the court
deems the right to counsel to have been forfeited;
(4) factual findings to support the court's ruling;
and (5) appointment of standby counsel.
(continued)
24
No. 2015AP959-CR
opinion recommended these warnings and procedures but did not
require them. Id. at 756 n.18. We reaffirm our holding on
right-to-counsel warnings and procedure in forfeiture cases.
Forfeiture cases, by their very definition, involve a
manipulative, disruptive, and potentially violent or abusive
defendant. Although we continue to recommend that circuit
courts give these warnings and follow these procedures whenever
the circumstances allow, we recognize the challenges our circuit
courts face on a daily basis may not always permit strict
compliance. In forfeiture cases, loss of the right to counsel
occurs by operation of law without the need to ensure a
defendant knows he is losing his right and regardless of whether
he intends to do so. See Cummings, 199 Wis. 2d at 752; Leggett,
162 F.3d at 250; State v. Lehman, 749 N.W.2d 76, 82 (Minn. Ct.
App. 2008).10 This is precisely why no warnings are required.
IV. CONCLUSION
¶34 We reaffirm our decision in Cummings applying a two-
tiered forfeiture—express waiver framework. We continue to
apply the Cummings standard governing forfeiture of counsel
Cummings, 199 Wis. 2d at 764 (Geske, J., dissenting).
10
Although Suriano did not receive the full panoply of
warnings and procedures specifically recommended in Cummings,
forfeiture did not come without any warning at all. The circuit
court repeatedly warned Suriano that he would not be provided
with an endless supply of SPD lawyers. Suriano heard at the
April 2014 hearing that if Singh withdrew, the SPD would not
appoint a fourth attorney, and the circuit court forcefully
warned Suriano that the June 2014 trial date would not be
adjourned.
25
No. 2015AP959-CR
cases, and we emphasize that the warnings and procedures it
suggests remain recommendations only. Applying the Cummings
standard to this case, we hold that Suriano forfeited his
constitutional right to counsel by engaging in voluntary and
deliberate conduct, which frustrated the progression of his case
and interfered with the proper administration of justice. The
record supports the circuit court's findings that Suriano
repeatedly refused to cooperate with his attorneys, engaged in
recurrent dilatory tactics to manipulate and cause delay, and
verbally abused counsel, even causing one of his lawyers to view
Suriano as a physical threat. The circuit court's finding of
forfeiture meets the Cummings standard and we agree with the
court of appeals' decision affirming it.
By the Court.—The decision of the court of appeals is
affirmed.
26
No. 2015AP959.ssa
¶35 SHIRLEY S. ABRAHAMSON, J. (dissenting). "The right
to the assistance of counsel is necessary to ensure that a
criminal defendant receives a fair trial, that all defendants
stand equal before the law, and ultimately that justice is
served."1
¶36 The instant case addresses the assertion that the
circuit court denied Suriano's Sixth Amendment right to counsel.2
¶37 To protect an accused's right to counsel, to avoid
after-the-fact legal disputes regarding whether an accused
relinquished (that is, forfeited or waived)3 the right to
counsel, and to promote certainty and judicial efficiency, I
would mandate an in-court, on-the-record colloquy by the circuit
court with the accused in all cases pertaining to relinquishment
of the fundamental right to counsel. The colloquy is set forth
in Justice Geske's dissent in State v. Cummings, 199
Wis. 2d 721, 546 N.W.2d 406 (1996).4
1
State v. Klessig, 211 Wis. 2d 194, 201, 564 N.W.2d 716
(1997).
2
An accused also has the right to self-representation.
Klessig, 211 Wis. 2d at 202.
3
The presumption is that the right to counsel is not
waived. "It has been pointed out that courts indulge every
reasonable presumption against waiver of fundamental
constitutional right and that we do not presume acquiescence in
the loss of fundamental rights." Johnson v. Zerbst, 304 U.S.
458, 464 (1938) (internal quotation marks omitted).
4
For an in-court procedure similar to that proposed by
Justice Geske, see Wis JI——Criminal SM 30.
1
No. 2015AP959.ssa
¶38 The majority opinion "strongly recommends" this
procedure. See majority op., ¶¶1, 34. I would require it.
¶39 I would require the circuit court record to reflect
that the circuit court made the accused aware of the seriousness
of the charges he or she faces, the potential penalties that may
be imposed upon a finding of guilt, and the difficulties and
disadvantages of self-representation. Cummings, 199 Wis. 2d at
763 (Geske, J., dissenting).
¶40 In Cummings, Justice Geske sets forth the colloquy in
which the circuit court shall:
(1) [Provide] explicit warnings that, if the defendant
persists in [specific conduct], the court will find
that the right to counsel has been forfeited . . . . ;
(2) [Engage in] a colloquy indicating that the
defendant has been made aware of the difficulties and
dangers inherent in self-representation;
(3) [Make] a clear ruling when the court deems the
right to counsel to have been forfeited; [and]
(4) [Make] factual findings to support the court's
ruling . . . .
Cummings, 199 Wis. 2d at 764 (Geske, J., dissenting).5
¶41 This procedure puts an accused on notice that his or
her conduct will lead to a relinquishment of the right to
5
As a fifth point, Justice Geske addressed the appointment
of standby counsel if the defendant forfeits his or her right to
counsel. "Standby counsel serves not only to safeguard a
defendant's constitutionally protected rights but also to
advance the court's objectives of judicial efficiency by
assisting the accused in overcoming routine procedural and
evidentiary obstacles." State v. Cummings, 199 Wis. 2d 721,
764-65, 546 N.W.2d 406 (1996) (Geske, J., dissenting).
2
No. 2015AP959.ssa
counsel, ensures an accused's right to a fair trial, and
discharges the circuit court's "special obligation[] of judicial
responsibility that [it] faces when dealing with an
unrepresented [criminal] defendant."6
¶42 Although forfeiture of the right to counsel,
constructive waiver of the right to counsel, and voluntary
waiver of the right to counsel are different doctrines of law,
the application of these doctrines may blend and overlap in
certain circumstances. There does not seem to be any reason
(except perhaps in an emergency situation not presented in the
instant case) why the same procedural safeguards should not be
imposed in all cases involving the relinquishment of the right
to counsel.
¶43 I joined Justice Geske's dissent in Cummings, and I am
even more persuaded by it now than then.
¶44 When this court decided Cummings, the case law did not
require a colloquy in which a circuit court explored with the
accused whether the accused was voluntarily waiving, as opposed
to constructively waiving or forfeiting, the right to counsel.
6
Cummings, 199 Wis. 2d at 762, (Geske, J., dissenting); see
also Johnson v. Zerbst, 304 U.S. 458, 465 (1938):
The constitutional right of an accused to be
represented by counsel invokes, of itself, the
protection of a trial court, in which the accused——
whose life or liberty is at stake——is without counsel.
This protecting duty imposes the serious and weighty
responsibility upon the trial judge of determining
whether there is an intelligent and competent waiver
by the accused.
3
No. 2015AP959.ssa
See State v. Pickens, 96 Wis. 2d 549, 601, 292 N.W.2d 601
(1980).
¶45 Pickens has been "overruled" since Cummings to the
extent that "we mandate the use of a colloquy in every case
where a defendant seeks to proceed pro se to prove knowing and
voluntary waiver of the right to counsel." State v. Klessig,
211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997).
¶46 The Klessig court explained that the circuit court's
conducting an examination of the accused "is the clearest and
most efficient means of insuring" that the waiver of the right
to counsel was valid, and preserves and documents the accused's
waiver for purposes of review. Klessig, 211 Wis. 2d at 206.
"Thus," wrote the court in Klessig, "a properly conducted
colloquy serves the dual purposes of ensuring that a defendant
is not deprived of his constitutional rights and of efficiently
guarding our scarce judicial resources." Klessig, 211 Wis. 2d
at 206.
¶47 The colloquy required by Klessig is substantially
similar to that set forth in the Cummings dissent. The circuit
courts are therefore familiar with and already use the colloquy
in voluntary waiver of counsel cases. Requiring the colloquy in
all cases involving the relinquishment of counsel is not too
much of a burden on the circuit courts and might even be viewed
as a simplification of process.
¶48 On the basis of the record in the instant case I
cannot conclude that Suriano validly relinquished his Sixth
Amendment right to counsel.
4
No. 2015AP959.ssa
¶49 Accordingly, I dissent.
¶50 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
5
No. 2015AP959.ssa
1
State v. Jack M. Suriano
Court: Wisconsin Supreme Court
Date filed: 2017-04-27
Citations: 374 Wis. 2d 683, 2017 WI 42, 893 N.W.2d 543, 2017 WL 1513086, 2017 Wisc. LEXIS 233
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