State v. Richard H. Harrison , 360 Wis. 2d 246 ( 2015 )

2015 WI 5
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP298-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Richard H. Harrison,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(No cite)
OPINION FILED: January 22, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 5, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Clark
JUDGE: Jon M. Counsell
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by Peter S. Rank, assistant attorney general, with whom
on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant, there was a brief by Katie R.
York, assistant state public defender, and oral argument by
Katie R. York.
2015 WI 5
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP298-CR
(L.C. No. 2010CF88)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v.
JAN 22, 2015
Richard H. Harrison,
Diane M. Fremgen
Defendant-Appellant. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 SHIRLEY S. ABRAHAMSON, C.J. This is a review of an
unpublished court of appeals opinion and order reversing the
judgment of conviction and postconviction order of the Circuit
Court for Clark County, Jon M. Counsell, Judge.1 The court of
1
State v. Harrison, No. 2013AP298-CR, unpublished slip op.
& order (Wis. Ct. App. Nov. 5, 2013).
No. 2013AP298-CR
appeals remanded the cause for a new trial.2 We affirm the
decision of the court of appeals.
¶2 Richard H. Harrison, the defendant, appealed a
judgment of conviction and an order denying his motions for
postconviction relief. The defendant had filed two
postconviction motions requesting, among other things, a new
trial. The motions alleged that Judge Counsell had no authority
to preside over the defendant's trial and sentencing because the
defendant had filed a timely and proper request for substitution
of judge pursuant to Wis. Stat. § 971.20 and the request had
been granted. Wisconsin Stat. § 971.20 is often referred to as
the criminal peremptory substitution statute, the peremptory
right to substitution, or the peremptory right to substitution
statute.3
¶3 The circuit court denied the defendant's
postconviction motions. The court of appeals summarily reversed
the judgment of conviction and postconviction order and remanded
for a new trial.
¶4 The State raises two issues for our review:
2
The court of appeals concluded that the instant case was
appropriate for summary disposition under Wis. Stat. § 809.21
(2011-12).
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
3
See State v. Holmes, 106 Wis. 2d 31, 34-35, 315 N.W.2d 703
(1982).
2
No. 2013AP298-CR
¶5 First, did the defendant forfeit his Wis. Stat.
§ 971.20 peremptory right to substitution?
¶6 Second, if the circuit court erred in presiding over
the defendant's trial, sentencing, and postconviction motions
after the defendant filed a timely and proper Wis. Stat.
§ 971.20 request for substitution of judge, the request was
granted, and a new judge was appointed, was the error harmless?
¶7 For the reasons set forth, we answer the questions of
law posed by the State as follows:
¶8 First, we conclude that the defendant in the instant
case did not forfeit his statutory right to peremptory
substitution of the judge. The defendant persisted with his
substitution request throughout the proceedings and did not
follow the procedure outlined in Wis. Stat. § 971.20(11) for
abandoning his substitution request. Thus, the circuit court
erred in presiding over the defendant's trial, sentencing, and
postconviction motions.
¶9 Second, harmless error analysis does not apply in the
instant case when the circuit court erred by presiding over the
defendant's trial, sentencing, and postconviction motions after
the defendant filed a timely and proper Wis. Stat. § 971.20
request for substitution of judge, the request was granted, and
a new judge was appointed. Applying the doctrine of harmless
error under these circumstances is contrary to case law and
would nullify the defendant's statutory right to substitute the
judge without furnishing a reason for the requested substitution
3
No. 2013AP298-CR
and without demonstrating that prejudice would result from the
substituted judge's presiding.
¶10 Accordingly, we affirm the decision of the court of
appeals and remand the cause to the circuit court for a new
trial.
I
¶11 The facts are not in dispute for purposes of this
review.
¶12 On July 16, 2010, the State filed a criminal complaint
against the defendant in Clark County Circuit Court, charging
him as a repeater with burglary, resisting and obstructing an
officer, misdemeanor theft, and criminal damage to property.
Circuit Court Judge Jon M. Counsell is the sole circuit court
judge in Clark County.
¶13 On four occasions, the defendant or his attorney
requested that Judge Counsell not preside at a case involving
the defendant:
¶14 1. On August 20, 2010, the defendant filed a timely
and proper request for substitution of judge pursuant to Wis.
Stat. § 971.20. On August 26, 2010, the circuit court approved
the defendant's request. Because Clark County is a single-judge
county, the chief judge of the district reassigned the case to
Judge Thomas Flugaur, a judge in a neighboring county.
¶15 On December 29, 2010, Judge Flugaur presided over the
defendant's preliminary hearing. Judge Flugaur found probable
cause and bound the defendant over to the Clark County Circuit
Court for arraignment and trial. Judge Flugaur instructed the
4
No. 2013AP298-CR
parties: "You can schedule with Judge Counsell for arraignment
and trial since this court is no longer involved in the case."
This comment ended the proceedings.
¶16 2. On January 14, 2011, an arraignment was held before
Judge Counsell on the charges in the instant case and on charges
in a subsequently filed second criminal complaint. Wisconsin
Stat. § 971.20(9) provides that "the judge whose substitution
has been requested has no authority to act further in the action
except to . . . accept pleas . . . ." Thus, Judge Counsell's
presiding over the arraignment did not violate Wis. Stat.
§ 971.20(9).
¶17 The defendant's counsel advised the circuit court that
the defendant intended to request substitution of the judge in
the second criminal case. The defendant's counsel did not
mention the prior substitution request in the instant case.
¶18 Although the defendant's counsel advised the court at
arraignment that he would be filing a request for substitution
of judge in the second case that very day, the district attorney
and the defendant's counsel set a trial date for the instant
case for March 29, 2011.
¶19 3. On February 17, 2011, at the pretrial conference
for the instant case, Judge Counsell reported that the case was
still first on the calendar for March 29, 2011. The State
advised the circuit court that if the defendant took the stand,
it would file a motion allowing the defendant to be asked
whether he had ever been convicted of a crime. The defendant's
counsel had no motions.
5
No. 2013AP298-CR
¶20 The defendant, appearing by video, stated that it had
been "several months" since he had spoken with his attorney.4
The defendant further stated that he was under the impression
that his attorney would offer a motion regarding "change of
judge based on the fact [of] conflict of interest and some other
things." The defendant stated several times: "I don't know
what's going on."
¶21 The circuit court, Judge Counsell presiding, asked
whether the defendant wanted to speak privately with his
attorney. The defendant said he did and the defendant's counsel
said that he would arrange to speak privately with the
defendant.
¶22 Judge Counsell did not address the defendant's request
for change of judge but instead said that the defendant's
counsel intended to go see the defendant "and you can talk over
these issues. We are set for the trial. Thank you all."
¶23 4. On March 24, 2011, the defendant's counsel sent a
letter to the circuit court, along with an affidavit from the
defendant, requesting that Judge Counsell recuse himself from
the instant case. The letter disassociated the defendant's
counsel from the defendant's request that Judge Counsell recuse
himself, stating as follows:
Further, enclosed is a notarized statement from my
client that I have held and not filed with the Court
4
The defendant's counsel advised the circuit court that
"for the record, it hasn't been months. The last time we were
in court was slightly more than 30 days ago."
6
No. 2013AP298-CR
until this time. I hesitated to bring this matter up
because I have no feeling of "bias" as my client
appears to have, and I did not know how to handle the
matter. With my last meeting with my client, I was
directed to file same and ask that you interpret this
paragraph of my letter to you to be a request, made on
behalf and at the direction of my client, to review
his affidavit and address the matter of him requesting
your recusal from this case. My client and I have
already discussed the matter and I believe he
understands the circumstances and potential
ramifications of his request and he also would
acknowledge that the request is made by me solely
based upon his direction to do so.
¶24 Judge Counsell denied the defendant's request the
following day.
¶25 Judge Counsell continued to preside over the remainder
of the defendant's case, including the defendant's trial in July
2011 and the sentencing hearing in September 2011.5
¶26 Although the defendant used phrases like "change of
judge" and "recusal" in some of his filings, rather than
consistently discussing Judge Counsell's "substitution" or
"authority to act," the defendant's goal was clear: He did not
want Judge Counsell on the instant case or the other criminal
case in which he was being charged.
¶27 After a jury trial in the instant case, the defendant
was found guilty of three offenses6 and Judge Counsell imposed
5
In his March 24 letter to the court, the defendant's
counsel also requested a postponement of the trial from March
2011. The circuit court granted the postponement request.
7
No. 2013AP298-CR
three consecutive sentences for a total of 13 years' initial
confinement and seven years' extended supervision.
¶28 On August 27, 2012, the defendant filed a
postconviction motion requesting, among other things, a new
trial. The defendant asserted that Judge Counsell had no
authority to preside over the defendant's trial or sentencing
because the defendant had filed a timely and proper request for
substitution of judge under Wis. Stat. § 971.20 and the request
had been granted.
¶29 The defendant also requested "in the alternative" that
he be declared eligible for the Earned Release Program (ERP) and
Challenge Incarceration Program (CIP).
¶30 The circuit court granted the defendant's request for
ERP and CIP eligibility. But the circuit court declined to
address the defendant's request for a new trial, stating: "As
the court has granted defendant's requested alternate relief,
the court concludes that there is no longer a need for 'a new
trial or an evidentiary hearing' to address other issues the
defendant has raised, as they are rendered moot" (citation
omitted).
6
A jury found the defendant guilty of burglary of a
building or dwelling as a repeater, contrary to Wis. Stat.
§§ 943.10(1m)(a) and 939.62(1)(b); resisting or obstructing an
officer as a repeater, contrary to Wis. Stat. §§ 946.41(1) and
939.62(1)(a); and theft of movable property as a repeater,
contrary to Wis. Stat. §§ 943.20(1)(a) and 939.62(1)(a).
8
No. 2013AP298-CR
¶31 The defendant filed an amended postconviction motion,
clarifying that his request for ERP and CIP eligibility was not
intended to be in the alternative to his request for a new
trial.
¶32 The circuit court, Judge Counsell presiding, denied
the amended postconviction motion, stating:
The defendant has filed an amended motion for post-
conviction relief. The motion was preceded by a
letter from defendant's counsel [] filed November 28,
2012, attempting to explain that defendant was not
satisfied with the relief the court granted defendant
in its decision filed November 27, 2012.
The court granted defendant the relief asked for in
his original post-conviction motion. The court is
concluded with this matter. All remaining motions are
denied. All future hearings are cancelled.
¶33 The court of appeals summarily reversed the judgment
of conviction and postconviction order and remanded the matter
to the circuit court for a new trial. The court of appeals
cited Wis. Stat. § 971.20(9) and (11) and held as follows:
Once a timely substitution request has been made and
approved as to form, "the judge whose substitution has
been requested has no authority to act further in the
action except to conduct the initial appearance,
accept pleas and set bail," unless the defendant or
defense counsel, the prosecutor, the substituted judge
and the substituting judge all sign and file an
agreement to transfer the matter back to the
substituted judge.7
II
7
State v. Harrison, No. 2013AP298-CR, unpublished slip op.
& order at 2 (Wis. Ct. App. Nov. 5, 2013).
9
No. 2013AP298-CR
¶34 The State presents two questions for our review:
¶35 First, did the defendant forfeit his Wis. Stat.
§ 971.20 peremptory right to substitution?
¶36 Second, if the circuit court erred in presiding over
the defendant's trial, sentencing, and postconviction motions
after the defendant filed a timely and proper Wis. Stat.
§ 971.20 request for substitution of judge, the request was
granted, and a new judge was appointed, was the error harmless?
¶37 Both questions require us to interpret Wis. Stat.
§ 971.20. The interpretation and application of a statute
present questions of law that we decide independently of the
circuit court and the court of appeals but benefiting from their
analyses.8
¶38 Thus, we turn to Wis. Stat. § 971.20, the criminal
peremptory substitution statute.
III
¶39 Wisconsin Stat. § 971.20 grants criminal defendants
the right to substitute a judge without providing a reason for
the requested substitution. Two subsections are especially
important in the present case.
¶40 Subsection (9) declares that when a timely request for
substitution of judge has been filed in proper form, the
substituted judge "has no authority to act further in the action
except to conduct" three proceedings enumerated in the statute.
8
See State v. Austin, 171 Wis. 2d 251, 254-55, 490
N.W.2d 780 (Ct. App. 1992).
10
No. 2013AP298-CR
¶41 Subsection (11) explains that after the statutory
right to substitution has been properly invoked, a substituted
judge may return to preside over the case "[u]pon the filing of
an agreement signed by the defendant or defendant's attorney and
by the prosecuting attorney, the substituted judge and the
substituting judge." As the text makes clear, this subsection
permits a substituted judge to return to a case when everyone
involved in the matter agrees to it.
¶42 The criminal peremptory substitution statute provides
in full as follows:
971.20. Substitution of Judge.
(1) Definition. In this section, "action" means all
proceedings before a court from the filing of a
complaint to final disposition at the trial level.
(2) One substitution. In any criminal action, the
defendant has a right to only one substitution of a
judge, except under sub. (7). The right of
substitution shall be exercised as provided in this
section.
(3) Substitution of judge assigned to preliminary
examination.
(a) In this subsection, "judge" includes a circuit
court commissioner who is assigned to conduct the
preliminary examination.
(b) A written request for the substitution of a
different judge for the judge assigned to preside at
the preliminary examination may be filed with the
clerk, or with the court at the initial appearance.
If filed with the clerk, the request must be filed at
least 5 days before the preliminary examination unless
the court otherwise permits. Substitution of a judge
assigned to a preliminary examination under this
subsection exhausts the right to substitution for the
duration of the action, except under sub. (7).
11
No. 2013AP298-CR
(4) Substitution of trial judge originally assigned.
A written request for the substitution of a different
judge for the judge originally assigned to the trial
of the action may be filed with the clerk before
making any motions to the trial court and before
arraignment.
(5) Substitution of trial judge subsequently assigned.
If a new judge is assigned to the trial of an action
and the defendant has not exercised the right to
substitute an assigned judge, a written request for
the substitution of the new judge may be filed with
the clerk within 15 days of the clerk's giving actual
notice or sending notice of the assignment to the
defendant or the defendant's attorney. If the
notification occurs within 20 days of the date set for
trial, the request shall be filed within 48 hours of
the clerk's giving actual notice or sending notice of
the assignment. If the notification occurs within 48
hours of the trial or if there has been no
notification, the defendant may make an oral or
written request for substitution prior to the
commencement of the proceedings.
(6) Substitution of judge in multiple defendant
actions. In actions involving more than one
defendant, the request for substitution shall be made
jointly by all defendants. If severance has been
granted and the right to substitute has not been
exercised prior to the granting of severance, the
defendant or defendants in each action may request a
substitution under this section.
(7) Substitution of judge following appeal. If an
appellate court orders a new trial or sentencing
proceeding, a request under this section may be filed
within 20 days after the filing of the remittitur by
the appellate court, whether or not a request for
substitution was made prior to the time the appeal was
taken.
(8) Procedures for clerk. Upon receiving a request
for substitution, the clerk shall immediately contact
the judge whose substitution has been requested for a
determination of whether the request was made timely
and in proper form. If no determination is made
within 7 days, the clerk shall refer the matter to the
chief judge for the determination and reassignment of
12
No. 2013AP298-CR
the action as necessary. If the request is determined
to be proper, the clerk shall request the assignment
of another judge under s. 751.03.
(9) Judge's authority to act. Upon the filing of a
request for substitution in proper form and within the
proper time, the judge whose substitution has been
requested has no authority to act further in the
action except to conduct the initial appearance,
accept pleas and set bail.
(10) Form of request. A request for substitution of a
judge may be made in the following form:
STATE OF WISCONSIN
CIRCUIT COURT
. . . County
State of Wisconsin
vs.
. . . (Defendant)
Pursuant to s. 971.20 the defendant (or defendants)
request(s) a substitution for the Hon. . . . as judge
in the above entitled action.
Dated . . . , . . . (year).
. . . (Signature of defendant or defendant's attorney)
(11) Return of action to substituted judge. Upon the
filing of an agreement signed by the defendant or
defendant's attorney and by the prosecuting attorney,
the substituted judge and the substituting judge, the
criminal action and all pertinent records shall be
transferred back to the substituted judge.
¶43 In the instant case, it is undisputed that the
defendant timely and properly invoked his peremptory
substitution right under the statute; that the circuit court
granted the defendant's substitution request; and that a
13
No. 2013AP298-CR
substitute judge, Judge Flugaur, presided over the defendant's
preliminary hearing.
¶44 It is also undisputed that the substituted judge,
Judge Counsell, returned to preside over the instant case after
the defendant had timely and properly filed his request for
substitution, the request had been granted, and the substitute
judge had presided over the preliminary hearing.
¶45 Finally, it is undisputed that no written agreement
pursuant to Wis. Stat. § 971.20(11) was filed authorizing the
substituted judge to return to preside over the trial,
sentencing, and postconviction motions in the instant case.
A
¶46 The first question the State poses is whether the
defendant forfeited his Wis. Stat. § 971.20 right to peremptory
substitution.
¶47 The State argues that by participating in the trial
and sentencing conducted by Judge Counsell and by failing to
object to Judge Counsell's presiding at those proceedings, the
defendant forfeited his right to object to Judge Counsell's
return to the instant case.
¶48 The State's argument is unconvincing for two reasons.
¶49 First, the text of the statute provides the method by
which a substituted judge can return to a case, that is, the
method by which a substituted judge regains authority to act in
the case. It is undisputed that there was no compliance with
this provision in the instant case.
14
No. 2013AP298-CR
¶50 Nothing in the statute intimates that a defendant can
forfeit or waive the right to substitution without complying
with Wis. Stat. § 971.20(11). We need not address, however,
whether a request for substitution of the judge may be forfeited
or waived without complying with Wis. Stat. § 971.20(11) under
circumstances not presented in the instant case. Under the
circumstances of the instant case, it is clear the defendant did
not forfeit or waive his substitution request.
¶51 Second, case law interpreting and applying Wis. Stat.
§ 971.20 does not support the State's position. According to
State v. Austin, 171 Wis. 2d 251, 490 N.W.2d 780 (Ct. App.
1992), a request for substitution of the judge is not forfeited
when the defendant makes a timely and proper substitution
request, the substitution request is granted, and a new judge
presides over one of the proceedings in the case.
¶52 In Austin, as in the instant case, the defendant
timely and properly filed a request for substitution of judge.
The circuit court granted the request, and a new judge was
assigned.
¶53 The new judge accepted Austin's guilty plea. Austin's
supervision was later revoked and the substituted judge returned
to sentence Austin after revocation. Austin did not object to
the participation of the substituted judge at this proceeding.
¶54 The court of appeals concluded that Austin's failure
to object to the substituted judge's continued participation in
15
No. 2013AP298-CR
the case did not constitute an implied waiver of Austin's right
to substitution of the judge.9
¶55 According to the Austin decision, the doctrines of
forfeiture and waiver do not apply after a substitution request
is granted.10 The court of appeals declared that "deviation from
the requirements of [§ 971.20(11)] would allow for substantial
problems that are prevented by strict adherence to the
statute."11 It further declared that Wis. Stat. § 971.20(11)
9
Austin uses the phrase "implied waiver" to mean
forfeiture.
For a discussion of the distinction between waiver and
forfeiture, see State v. Ndina, 2009 WI 21, ¶¶29-31, 315
Wis. 2d 653, 761 N.W.2d 612. Cases, including Austin, do not
use the two words consistently. See Ndina, 315 Wis. 2d 653,
¶28.
10
Austin, 171 Wis. 2d at 257-58.
11
Id. at 257. The "substantial problems" identified by the
Austin court were as follows:
First, to find implied waiver in circumstances like
these would be to condone carelessness among lawyers
and courts. It is the responsibility of both lawyers
and courts to check on previous substitutions as a
matter of course. Second, to allow an implied waiver
would serve to unfairly penalize less informed
defendants who, because they appear pro se, or because
they are represented by successor counsel or forgetful
counsel, may not remember the substitution. While
apparently acquiescent before the judge, they are
still entitled to the protection of the substitution
statute. Third, to allow an implied waiver would be
to allow a new form of "forum shopping." Defendants,
realizing that the first judge is more "lenient" than
the second judge, could simply reappear before the
first judge, hoping that busy clerks and prosecutors
would not notice. Defendants unilaterally could
(continued)
16
No. 2013AP298-CR
"specifically delineates the requirements to be followed for a
transfer back to the substituted judge."12 Because those
requirements were not met, Austin did not lose his right to
substitution of the judge.
¶56 The court of appeals in Austin imposed a
responsibility on lawyers and courts "to check on previous
substitutions as a matter of course," intimating that a
defendant need not repeatedly request substitution to preserve
the issue after a timely and proper substitution request has
been made and granted.13
¶57 Austin relied on State v. Smith, 106 Wis. 2d 17, 315
N.W.2d 343 (1982), a case decided by this court. The Smith
court stated that "[t]he plain language of the statute controls
the disposition of this case. Once a judge has been substituted
create a second substitution. Such a unilateral
loophole was explicitly proscribed by the sec.
971.20(11) requirement that both parties agree before
a case is returned to the first judge.
Austin, 171 Wis. 2d at 257.
12
Id.
13
Id.
17
No. 2013AP298-CR
out of a case, he may not preside over any subsequent
proceedings in that case."14
¶58 Austin also relied on this court's decision in Clark
v. State, 92 Wis. 2d 617, 632-33, 286 N.W.2d 344 (1979). Clark
requested substitution of the judge. Nothing happened in
response to Clark's request and Clark did not follow up on his
request. He did not seek an appropriate writ to compel the
circuit court judge to stop the proceedings, to rule on the
request, or to reassign the case. Clark proceeded through
motion hearings and trial without objecting to the judge's
presiding. The Clark court explained that under these
circumstances, an "objection to the judge's or clerk's failure
to substitute a judge comes too late on appeal."15
¶59 The Clark court also commented on the then-recent
enactment of present Wis. Stat. § 971.20(11), which was not in
effect when Clark's case was pending. The Clark court wrote
that before the enactment of subsection (11), a defendant like
Clark could unilaterally withdraw a request for substitution.16
14
Smith, 106 Wis. 2d at 20. Smith's reference to "any
subsequent proceeding" did not refer to the ability of a
substituted judge to conduct "an initial appearance, accept
pleas of not guilty, [or] set bail," which were permitted under
the version of Wis. Stat. § 971.20 in effect when Smith was
decided. The Smith case did not involve any of these enumerated
proceedings.
15
Clark v. State, 92 Wis. 2d 617, 631, 286 N.W.2d 344
(1979).
16
Id. at 631-32.
18
No. 2013AP298-CR
The court construed Clark's conduct "as in effect constituting a
unilateral withdrawal of the request for substitution."17
However, after the enactment of subsection (11), the request for
substitution "is no longer subject only to the control of the
party making the motion."18
¶60 The State does not argue that the instant case differs
from Austin or that Austin does not govern the instant case.
Rather, the State asserts that Austin was incorrectly decided
and urges this court to overrule Austin and to apply the common-
law rule of forfeiture to the instant case.
¶61 Forfeiture is the failure to timely assert a right.19
Waiver, in contrast, is the "intentional relinquishment or
abandonment of a known right."20 The words "forfeiture" and
"waiver" are often (incorrectly) used interchangeably in cases.
¶62 In the instant case, the State contends that the
defendant forfeited (rather than waived) his right to
substitution. More specifically, the State asserts that because
the defendant proceeded through trial and sentencing despite
Judge Counsell's presiding, and without reserving the right to
challenge Judge Counsell's return to the case, the defendant
forfeited his request for and right of substitution. The State
17
Id. at 632.
18
Id.
19
State v. Soto, 2012 WI 93, ¶35, 343 Wis. 2d 43, 817
N.W.2d 848.
20
Id.
19
No. 2013AP298-CR
contends that the defendant's conduct at trial and sentencing
(his silence with regard to Judge Counsell's return to the case,
in particular) was inconsistent with the defendant's request for
substitution of the judge. The State concludes that through his
conduct, the defendant forfeited his statutory right to
substitution.
¶63 The common-law rule of forfeiture, argues the State,
promotes expediency and efficiency and encourages diligent
preparation. The State urges us to recognize that the
defendant's belated request for a "do-over" in the instant case
highlights the potential for abuse under the Austin rule.
¶64 To support its position that Austin should be
overruled and that the court should declare that a substitution
request that has been granted is nevertheless subject to
forfeiture, the State relies on State v. Damaske, 212
Wis. 2d 169, 567 N.W.2d 905 (Ct. App. 1997).21 According to the
21
The State also relies on Pure Milk Products Co-op v.
National Farmers Organization, 64 Wis. 2d 241, 219 N.W.2d 564
(1974), and Golos v. Worzalla, 178 Wis. 414, 190 N.W. 114
(1922). Neither the governing statutes nor the issues presented
in Pure Milk and Golos are the same as in the instant case.
The issue in Pure Milk was whether a request for
substitution pursuant to the civil peremptory substitution of
judge statute was timely when preliminary proceedings had
already taken place but trial had not yet commenced. The court
held the request untimely under the statute and thus denied
relief. In the instant case, it is undisputed that the
defendant's substitution request was timely and proper. Thus,
Pure Milk is unhelpful.
(continued)
20
No. 2013AP298-CR
State, Damaske, which was decided five years after Austin, is
inconsistent with Austin.
¶65 We conclude that the facts of Damaske are
significantly different from those in Austin and in the instant
case; that Damaske and Austin are not inconsistent with each
other; and, finally, that Austin should not be overruled.
¶66 In Damaske, unlike in Austin and in the instant case,
the trial judge denied the defendant's request for substitution
as untimely. Damaske never challenged this determination by
seeking review of the denial either by the chief judge of the
administrative district or by a writ of prohibition.22 Damaske
entered a no-contest plea with the judge whom Damaske had
The issue in Golos was whether, under the peremptory
substitution of judge statute in place at the time, a defendant
could "waive the disqualification of the judge created by the
filing of [an affidavit of prejudice] by subsequently appearing
and proceeding with the cause as if no affidavit had been
filed[.]" Golos, 178 Wis. at 420. The court determined that
the defendant's failure to object to the judge's return four
years after the request for substitution was made indicated that
the request for substitution had passed from the minds of all
parties and the judge.
The Golos court concluded that a waiver could be inferred
under the circumstances of that case. The court stated: "A
waiver should not be implied, except where the facts are clear,
and it appears that no right of the party in respect thereto has
been consciously denied by the judge." Golos, 178 Wis. at 423.
The facts and circumstances of the instant case are
significantly different and do not permit the inference made in
Golos.
22
State v. Damaske, 212 Wis. 2d 169, 189, 567 N.W.2d 905
(Ct. App. 1997).
21
No. 2013AP298-CR
attempted to substitute presiding. Damaske made no objections
regarding the judge's presiding.
¶67 The court of appeals concluded in Damaske that by
entering a plea of no contest without a reservation of rights
and without seeking immediate review of the denial of his
substitution request, Damaske waived the right to object to the
substituted judge's imposing sentence.23
¶68 Damaske presents a significantly different fact
situation than that presented in Austin or in the instant case.24
In Damaske, the request for substitution was denied as untimely
and no new judge was appointed to preside. In Austin and in the
instant case, the request for substitution was granted as timely
and proper and a new judge participated in one of the
proceedings before the substituted judge returned.
¶69 Austin remains intact after Damaske. The court of
appeals in Austin refused to view Austin's conduct, namely his
participation in the revocation proceeding, as inconsistent with
his previous request for substitution. The court of appeals in
the instant case likewise refused to view the defendant's
participation at trial and sentencing as inconsistent with the
defendant's previous request for substitution.
23
Damaske, 212 Wis. 2d at 186, 189-90.
24
The Damaske opinion provides other examples of waiver or
forfeiture of the right to complain on appeal that a request for
substitution was not honored. The facts in those examples
differ from the facts in Austin and in the instant case.
22
No. 2013AP298-CR
¶70 As we set forth previously, the defendant in the
present case requested on four occasions that Judge Counsell not
preside in the instant case or in a different criminal case
involving the defendant. The defendant's initial request for
substitution in the instant case was granted; his subsequent
requests were acknowledged but not granted. The circuit court
judge was, therefore, fully aware of the defendant's challenge
to the judge's participation in the instant case and another
pending criminal case.
¶71 The defendant's efforts seeking substitution in the
instant case were, as we explained previously, rebuffed by the
defendant's counsel and the circuit court.
¶72 These facts do not support a conclusion that the
defendant forfeited his request for substitution. Indeed, the
case law makes it eminently clear that after the defendant's
timely and proper request for substitution of judge was made and
granted in the instant case, the defendant did not have to take
additional steps to avoid forfeiture of his substitution
request.
¶73 We need not address whether under other circumstances
an accused may forfeit or waive the statutory right to
substitute the judge after a timely and proper request for
substitution has been made and granted. We need not address
whether compliance with Wis. Stat. § 971.20(11) is the exclusive
method for abandoning a request for substitution. We need
address only whether under the circumstances of the instant case
the defendant forfeited his request for substitution.
23
No. 2013AP298-CR
¶74 Again, the circumstances of the instant case are that
a timely and proper request for substitution was made and
granted; a new judge presided at a hearing; the substituted
judge returned to preside over the defendant's trial,
sentencing, and postconviction motions; the defendant objected
to the substituted judge's returning; and no agreement under
Wis. Stat. § 971.20(11) was reached.
¶75 Austin answers our question: Under these
circumstances, the defendant's right to substitution was not
forfeited. In Austin, the court of appeals remanded the cause
for a new trial.
¶76 We conclude that this case presents a fact situation
substantially similar to that presented in Austin and that
Austin is not inconsistent with Damaske or the other cases cited
by the State, which recognize forfeiture or waiver of a
substitution request under certain circumstances not present in
the instant case. We further conclude that Austin governs the
instant case; that the defendant did not forfeit the right to
substitution; and that Judge Counsell erred in presiding over
the defendant's trial, sentencing, and postconviction motions.
Adhering to Austin, we remand the cause for a new trial on
account of the circuit court's error.
B
¶77 Because we have concluded that the circuit court erred
in presiding over the defendant's trial, sentencing, and
postconviction motions, the State asks that we determine the
error was harmless.
24
No. 2013AP298-CR
¶78 According to the State, the error was harmless beyond
a reasonable doubt. The State argues that the defendant
received a fair trial before an impartial judge. The State
points out that no evidence has been presented indicating that
the proceedings were unfair due to Judge Counsell's presiding.
¶79 We are not persuaded by the State's harmless error
argument.
¶80 To determine whether Wis. Stat. § 971.20 is amenable
to harmless error analysis, we must look to the text of the
statute. The statute declares that a substituted judge, here
Judge Counsell, "has no authority to act further in the action
except to conduct" three enumerated proceedings.25 We must
determine what the phrase "no authority to act" means and
whether the phrase is amenable to a harmless error analysis.
¶81 The court of appeals and the parties offer different
interpretations of the phrase "no authority to act" in Wis.
Stat. § 971.10(9).
¶82 The court of appeals determined that "when the
substitution statute refers to a judge lacking the 'authority to
act' it means the court can no longer exercise jurisdiction over
the matter."26 The court of appeals therefore declared that
25
See Wis. Stat. § 971.20(9).
26
State v. Harrison, No. 2013AP298-CR, unpublished slip op.
& order at 3 (Wis. Ct. App. Nov. 5, 2013).
25
No. 2013AP298-CR
"when a judge lacks 'authority to act,' any judgment or order
rendered by that judge is void for lack of jurisdiction."27
¶83 The court of appeals' position does not comport with
the case law. Damaske explains that Wis. Stat. § 971.20(9) is
"a limitation on the trial judge's competency to act, not on his
or her jurisdiction."28
¶84 Adhering to Damaske, the defendant contends that Wis.
Stat. § 971.20(9), referring to the substituted judge's lack of
authority, deprives a substituted circuit court judge of
"competency," not jurisdiction. The defendant cites Jefferson
County v. Joseph S., 2010 WI App 160, ¶15, 330 Wis. 2d 737, 795
N.W.2d 450, and State ex rel. Jones v. Franklin, 151
Wis. 2d 419, 423-25, 444 N.W.2d 738 (Ct. App. 1989), for the
proposition that harmless error analysis does not apply when a
circuit court lacks competency to act.
¶85 The State appears to agree with the defendant that the
error of Judge Counsell's presiding over the defendant's trial,
sentencing, and postconviction motions was not jurisdictional.
However, citing State v. Holmes, 106 Wis. 2d 31, 69-70, 315
27
Id. at 3.
28
Damaske, 212 Wis. 2d at 188-89. See Wis. Const. art.
VII, § 8 ("Except as otherwise provided by law, the circuit
court shall have original jurisdiction in all matters civil and
criminal within this state . . . . "). "Only when the failure
to abide by a statutory mandate is 'central to the statutory
scheme' of which it is a part will the circuit court's
competency to proceed be implicated." Village of Trempealeau v.
Mikrut, 2004 WI 79, ¶10, 273 Wis. 2d 76, 681 N.W.2d 190
(citation omitted).
26
No. 2013AP298-CR
N.W.2d 703 (1982), the State contends that "[a]n individual
judge's 'authority' to act in a specific case is an even
narrower concept than competency . . . ."
¶86 The Holmes court upheld the criminal peremptory
substitution of judge statute against a challenge grounded in
separation of powers. The court reasoned that Wis. Stat.
§ 971.20 removes the individual judge but does not deprive the
circuit court of the power to hear the case by assigning another
judge. Holmes does not support the State's contention that a
judge's authority to act in a specific case is a narrower
concept than competency.
¶87 The case law supports the defendant's contentions that
Judge Counsell lost competency to act in the present case and
that harmless error analysis does not apply. The cases cited by
the defendant clearly establish that a harmless error analysis
does not apply when such an analysis effectively nullifies a
right granted by statute.
¶88 Applying a harmless error analysis in the instant case
would nullify the defendant's statutory right to substitution of
the judge. As we explained previously, the statute does not
require a defendant to provide a reason for the requested
substitution or to demonstrate that prejudice would result from
the substituted judge's presiding.
¶89 In a prior iteration of Wis. Stat. § 971.20, the
legislature did require an "affidavit of prejudice" to support a
27
No. 2013AP298-CR
defendant's request for substitution of the judge.29 The
legislature repealed the affidavit of prejudice requirement to
protect both defendants and circuit court judges and to preserve
the public's confidence in a fair, impartial judicial system.30
"[T]he intent of [§ 971.20] was that a defendant should not have
to prove prejudice to obtain a new judge."31 As the court stated
in Holmes, 106 Wis. 2d at 61:
In weighing the merits of alternative approaches to
substitution, the legislature obviously concluded that
sec. 971.20 . . . is a commendable procedure to
protect the defendant's right to a fair trial, to
protect the judge from having his or her impartiality
unfairly impugned, to avoid having the lawyer file an
affidavit of prejudice without having guidelines as to
the proper use of the affidavit, and to promote the
bench's and public's interest in preserving confidence
in the judiciary.
¶90 Thus, by seeking to impose a harmless error analysis
in the present case, the State attempts to insert a condition
for substitution that the legislature has deliberately refused
to impose. The court should not add an element to the
substitution statute that the legislature did not enact.32
29
For the statutory history of Wis. Stat. § 971.20, see
State v. Bell, 62 Wis. 2d 534, 536-38, 215 N.W.2d 535 (1974);
State v. Holmes, 106 Wis. 2d 31, 47-51, 315 N.W.2d 703 (1982).
30
See Holmes, 106 Wis. 2d at 61.
31
Bell, 62 Wis. 2d at 537. See also Holmes, 106 Wis. 2d at
60-61.
32
See State v. Matasek, 2014 WI 27, ¶20, 353 Wis. 2d 601,
846 N.W.2d 811 ("We should not read into the statute language
that the legislature did not put in" (quoting Brauneis v. LIRC,
2000 WI 69, ¶27, 236 Wis. 2d 27, 612 N.W.2d 635).).
28
No. 2013AP298-CR
¶91 In sum, application of a harmless error analysis in
the present case would undercut Wis. Stat. § 971.20 by
nullifying the defendant's statutory right to request and obtain
substitution without any showing of prejudice. The text of Wis.
Stat. § 971.20 controls the disposition of the instant case.
The statutory violation in the instant case is simply not
amenable to harmless error review, and the case law does not
permit us to apply a harmless error analysis. Thus, we decline
to do so.
* * * *
¶92 For the reasons set forth, we answer the questions of
law posed by the State as follows:
¶93 First, we conclude that the defendant in the instant
case did not forfeit his statutory right to peremptory
substitution of the judge. The defendant persisted with his
substitution request throughout the proceedings and did not
follow the procedure outlined in Wis. Stat. § 971.20(11) for
abandoning his substitution request. Thus, the circuit court
erred in presiding over the defendant's trial, sentencing, and
postconviction motions.
¶94 Second, harmless error analysis does not apply in the
instant case when the circuit court erred by presiding over the
defendant's trial, sentencing, and postconviction motions after
the defendant filed a timely and proper Wis. Stat. § 971.20
substitution request, the request was granted, and a new judge
was appointed. Applying the doctrine of harmless error under
these circumstances is contrary to case law and would nullify
29
No. 2013AP298-CR
the defendant's statutory right to substitute the judge without
furnishing a reason for the requested substitution and without
demonstrating that prejudice would result from the substituted
judge's presiding.
¶95 Accordingly, we affirm the decision of the court of
appeals and remand the cause to the circuit court for a new
trial.
By the Court.—The decision of the court of appeals is
affirmed and the cause is remanded for a new trial.
30
No. 2013AP298-CR
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