State v. Rodolfo J. Garcia ( 2020 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 14, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2018AP2027-CR Cir. Ct. No. 2016CF562
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
RODOLFO J. GARCIA,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Winnebago County: KAREN L. SEIFERT, Judge. Affirmed.
Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP2027-CR
¶1 PER CURIAM. Rodolfo Garcia appeals pro se from a judgment
convicting him of first-degree sexual assault of a child under thirteen and an order
denying his postconviction motion seeking to withdraw his no contest plea due to
ineffective assistance of trial counsel. On appeal, Garcia challenges the circuit
court’s refusal to appoint counsel for him after his WIS. STAT. RULE 809.30 (2017-
18)1 appointed counsel withdrew at Garcia’s request. The record supports the
circuit court’s decision to deny Garcia’s request for a second lawyer. The
judgment of conviction and the order denying postconviction relief are affirmed.
¶2 After Garcia was sentenced in July 2017, the state public defender
provided Garcia with counsel for WIS. STAT. RULE 809.30 postconviction
proceedings. On March 26, 2018, appointed counsel moved to withdraw because
he and Garcia had discussed the case and Garcia’s rights in relation to his appeal,
most recently in a March 6 telephone call, and Garcia had confirmed his desire to
proceed either pro se or with retained counsel.
¶3 In response to counsel’s motion to withdraw, the state public
defender advised the circuit court and Garcia in a letter dated February 6, 2018
(but filed in the circuit court on April 2) that if counsel withdrew, Garcia would be
deemed to have waived his right to appointed counsel from the state public
defender, and the state public defender would not appoint counsel for him in the
future. The state public defender explained the rights and warnings specified in
State v. Thornton, 2002 WI App 294, ¶21, 259 Wis. 2d 157, 656 N.W.2d 45: the
right to an appeal, the right to the assistance of counsel in the appeal, the right to a
1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
No. 2018AP2027-CR
WIS. STAT. RULE 809.32 no-merit report, the dangers and disadvantages of
proceeding pro se, and that without counsel, Garcia would be “responsible for all
aspects of his appeal case including compliance with all court rules and
procedures.” Id. In an order dated April 2, 2018, the circuit court granted
counsel’s motion to withdraw.
¶4 From April to mid-July 2018, Garcia proceeded pro se. On July 16,
Garcia filed a WIS. STAT. RULE 809.30 motion to withdraw his no contest plea due
to ineffective assistance of trial counsel. After the circuit court scheduled the
motion for a hearing, Garcia asked the circuit court in an August 1 letter to appoint
counsel because he could not manage the hearing without assistance. The state
public defender notified the court that because Garcia had discharged previously
appointed counsel and waived his right to counsel, new counsel would not be
appointed.
¶5 In pleadings dated August 17, Garcia again asked the circuit court to
appoint counsel. Garcia conceded that when he and his prior appointed counsel
spoke on March 6, counsel informed him of his options: close the file, proceed
pro se or by retained counsel, or authorize a no-merit report “in which I would be
able to respond to.” However, Garcia claimed that counsel did not inform him that
his response to the no-merit report could raise issues he believes have arguable
merit and if this court found an issue with arguable merit, counsel’s representation
would continue. Based on his alleged lack of understanding about the no-merit
appeal process, Garcia argued that his decision to discharge counsel was neither
knowing nor voluntary. In a September 4 order, the circuit court denied Garcia’s
request for counsel because Garcia had discharged appointed counsel, and he
knew that doing so waived his right to counsel.
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No. 2018AP2027-CR
¶6 On September 11, the circuit court entered an order denying Garcia’s
postconviction motion because the motion made conclusory allegations of
ineffective assistance of trial counsel and did not warrant an evidentiary hearing.2
¶7 In a September 19 letter to the circuit court, Garcia reiterated that the
court should have held a hearing on counsel’s March 2018 motion to withdraw,
that his waiver of counsel was neither knowing nor voluntary, and that he did not
have an opportunity to respond to counsel’s motion to withdraw before the circuit
court granted it. On October 2, the circuit court declined to vacate the orders
granting counsel’s motion to withdraw and denying Garcia’s postconviction
motion.
¶8 On appeal, Garcia challenges the circuit court’s refusal to appoint
counsel to litigate his postconviction motion. He argues that the circuit court
never determined that he knowingly and voluntarily waived his right to counsel.
We conclude that three aspects of the record support the circuit court’s
determination that Garcia waived his right to appointed counsel and would not
receive a second appointed lawyer.
¶9 Whether Garcia was wrongly deprived of his constitutional right to
counsel presents a question of constitutional fact that we review independently.
Thornton, 259 Wis. 2d 157, ¶11. The waiver of the right to counsel on direct
appeal must be knowingly and voluntarily made. Id., ¶21.
2
We note that the circuit court held a hearing on the motion on September 10. The
record does not contain a transcript of this hearing.
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No. 2018AP2027-CR
¶10 First, the record establishes that before the circuit court relieved
counsel of the representation, Garcia received the information required by
Thornton. Counsel’s motion to withdraw stated that he and Garcia had discussed
Garcia’s rights, the state public defender’s letter specified those rights and
provided additional required information, and Garcia conceded to the circuit court
in his August 17 pleadings that on March 6, before moving to withdraw, counsel
informed him of his rights. That a defendant has received and understood the
information required by Thornton “is both necessary and sufficient to support a
determination that the defendant’s tendered waiver of counsel is knowing and
voluntary.” Id., ¶21. Garcia received the information required by Thornton, and
he understood it.
¶11 Second, the record does not show that Garcia was unable to
communicate with the circuit court in response to counsel’s motion to withdraw or
the April 2 order discharging counsel. In fact, it shows the opposite. Garcia did
not contemporaneously object to counsel’s motion or to the circuit court’s order
granting the motion, but he communicated with the court on numerous other
occasions: he filed a motion in May to extend the time to file a postconviction
motion, he filed a postconviction motion in July, he sought counsel in August, and
he filed multiple objections to the circuit court’s refusal to appoint counsel for the
postconviction motion hearing. The record substantiates that Garcia was able to
communicate with the court.
¶12 Third, Garcia’s conduct after counsel withdrew substantiates that he
intended to proceed without counsel. As noted, on May 1, Garcia sought an
extension of time to file his postconviction motion. The motion recited the history
of counsel’s withdrawal from the case and Garcia’s use of a fellow inmate to draft
his postconviction motion. It was only after the circuit court scheduled a hearing
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No. 2018AP2027-CR
on his postconviction motion that Garcia changed his mind and requested counsel.
Garcia’s renewed interest in representation is unavailing because he was
specifically warned that if he discharged counsel, he would have to manage further
proceedings in the circuit court.
¶13 Garcia’s argument on appeal that he should have been informed
about the precise contours of a potential no-merit response lacks merit and does
not invalidate his waiver of counsel. Such detailed information was not required.
State ex rel. Flores v. State, 183 Wis. 2d 587, 610, 516 N.W.2d 362 (1994);
Thornton, 259 Wis. 2d 157, ¶21.
¶14 We conclude that Garcia was not wrongly deprived of appointed
counsel, and he knowingly and voluntarily waived his right to counsel. The circuit
court’s order denying appointed counsel for the postconviction motion hearing is
supported by the record.
¶15 Other than arguing that he should have had appointed counsel for the
postconviction motion hearing, Garcia’s appellant’s brief does not dispute the
circuit court’s denial of his postconviction motion without an evidentiary hearing.
Although Garcia eventually raises this issue in his reply brief, we do not address
issues raised for the first time in a reply brief. State v. Grade, 165 Wis. 2d 143,
151 n.2, 477 N.W.2d 315 (Ct. App. 1991).
By the Court.—Judgment and order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
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