State v. Nhia Lee

2022 WI 32SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP221-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Nhia Lee,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 396 Wis. 2d 136,955 N.W.2d 424PDC No:2021 WI App 12 - Published
OPINION FILED: May 24, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 10, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Marathon
JUDGE: Lamont K. Jacobson
JUSTICES:
REBECCA GRASSL BRADLEY, J., filed a concurring opinion in which
ZIEGLER, C.J. and HAGEDORN, JJ., joined. DALLET, J., filed a
dissenting opinion in which ANN WALSH BRADLEY, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner there were briefs
filed by Julianne M. Lennon and the Law Offices of Attorney
Julianne M. Lennon. There was an oral argument by Julianne M.
Lennon.
For the plaintiff-respondent there was a brief filed by
Timothy M. Barber, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Timothy M. Barber.
An amicus curiae brief was filed by Ellen Henak and Henak
Law Office, S.C. for the Wisconsin Association of Criminal
Defense Lawyers. There was an oral argument by Ellen Henak and
Bonnie Hoffman.
An amicus curiae brief was filed by Jerome F. Buting and
Buting, Williams & Stilling, S.C. for the National Association
of Criminal Defense Lawyers.
An amicus curiae brief was filed by Andrew T. Phillips,
Natalie D. Fluker, and Matthew J. Thome and von Briesen & Roper,
S.C. for the Wisconsin Counties Association.
An amicus curiae brief was filed by Katie R. York, state
public defender, for the Office of the Wisconsin State Public
Defender.
2022 WI 32NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP221-CR
(L.C. No. 2018CF1025)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. MAY 24, 2022
Nhia Lee, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Dismissed as
improvidently granted.
¶1 PER CURIAM. Nhia Lee petitioned for review of a
decision of the court of appeals, State v. Lee, 2021 WI App 12,
396 Wis. 2d 136, 955 N.W.2d 424, reversing the circuit court's
orders denying his motion to dismiss the criminal complaint and
remanding with directions to grant the motion and dismiss the
criminal complaint without prejudice. After reviewing the
record and the briefs, and after hearing oral arguments, we
conclude that this matter should be dismissed as improvidently
granted.
By the Court.—The review of the decision of the court of
appeals is dismissed as improvidently granted.
No. 2019AP221-CR.rgb
¶2 REBECCA GRASSL BRADLEY, J. (concurring). In her
dissent, Justice Rebecca Dallet identifies a number of "systemic
issues" with the "process for appointing counsel for indigent
defendants." Although acknowledging a lack of merit with two of
the three issues Lee raises, she nevertheless accuses the court
of "fail[ing] him" by dismissing his petition as improvidently
granted. Justice Dallet doesn't explain how the court "fail[s]"
Lee, considering he would remain incarcerated regardless of this
court's disposition of his case.1 Even if one or more of Lee's
issues have merit, Justice Dallet "agree[s] with the court of
appeals that, consistent with our precedent, the correct remedy
for failing to hold a timely preliminary examination is
dismissal without prejudice for lack of personal jurisdiction."2
Resolving Lee's case therefore would require nothing more than
an opinion from this court agreeing with the court of appeals.
There are much better uses of this court's time than repeating
work already done correctly by a lower court.
¶3 Justice Dallet seems to suggest Lee's case somehow
offers an avenue for taking "transformative steps" to implement
policy changes.3 As she sees it, "Lee's appeal provided the
court with the chance to highlight the problems with our
appointed-counsel system, so all three branches of government
1 Dissent, ¶6 n.2.
2 Id., ¶9.
3 Id., ¶16.
2
No. 2019AP221-CR.rgb
can begin working toward solutions."4 That's not part of our
case-deciding function. When we grant a petition for review, we
resolve issues of law.
¶4 The court's superintending authority, which Justice
Dallet would apparently use to effect policy changes she
acknowledges would inflict a financial burden on counties, "is
ordinarily exercised when a party asserts error by the circuit
court causing 'great and irreparable' 'hardship.'" Koschkee v.
Evers, 2018 WI 82, ¶42, 382 Wis. 2d 666, 913 N.W.2d 878 (Rebecca
Grassl Bradley, J., concurring/dissenting) (citing Application
of Sherper's, Inc., 253 Wis. 224, 226, 33 N.W.2d 178 (1948);
State ex rel. Wis. State Dep't of Agric. v. Aarons, 248
Wis. 419, 423, 22 N.W.2d 160 (1946)). There was no error in
this case, and we should not transform it (or any other case)
into a vehicle for "highlight[ing]" issues that are more
properly considered through a rule petition or legislative
proposal.5 The principal policy changes for which Justice Dallet
advocates are properly considered by the legislature, which
possesses the power of the purse. We don't have this power,
which is why we should decide cases and leave policymaking to
the legislature.
¶5 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER and Justice BRIAN HAGEDORN join this
concurrence.
4 Id., ¶17.
5 Id., ¶16 n.6.
3
No. 2019AP221-CR.rgb
¶6 REBECCA FRANK DALLET, J. (dissenting). The criminal
justice system has already failed Nhia Lee twice, and by
dismissing his appeal, we fail him as well. First, he was not
promptly appointed counsel after being charged with felony drug
and identity theft offenses. Second, the circuit court and
court commissioners, often over Lee's pro se objections,
erroneously exercised their discretion by repeatedly extending
the 10-day statutory time limit for holding a preliminary
examination solely because the State Public Defender's Office
(SPD) had not yet appointed counsel for Lee. See Wis. Stat.
§ 970.03(2) (requiring a preliminary examination within 10 days
of the initial appearance unless the parties stipulate or "on
motion and for cause.");1 State v. Lee, 2021 WI App 12, ¶¶51–52,
1A preliminary examination "is a hearing before a court for
the purpose of determining if there is probable cause to believe
a felony has been committed by the defendant." Wis. Stat.
§ 970.03(1). It serves a different purpose than a Riverside
hearing, which is a constitutionally required preliminary
probable cause determination that must be made within 48 hours
of arrest "as a prerequisite to extended restraint of liberty,"
and which does not entail any adversary rights. See Gerstein v.
Pugh, 420 U.S. 103, 114 (1975); see also County of Riverside v.
McLaughlin, 500 U.S. 44, 56 (1991); State v. Koch, 175
Wis. 2d 684, 697-98, 499 N.W.2d 152 (1993). This requirement
was satisfied when the circuit court made an initial finding of
probable cause the day after Lee was arrested.
4
No. 2019AP221-CR.rfd
396 Wis. 2d 136, 955 N.W.2d 424. Those extensions resulted in
Lee being in custody for 113 days before a preliminary
examination was held, 101 of which were prior to the appointment
of counsel.2
¶7 Now, with no explanation, the court dismisses his
appeal as improvidently granted. By doing so, we minimize the
important questions Lee's case raises about the efficacy of
Wisconsin's process for appointing counsel for indigent
defendants, which protects one of a defendant's most important
constitutional rights. See Wis. Const. art. 1, § 7 (providing
that a criminal defendant "enjoy[s] the right to be heard by
Unlike a Riverside hearing, a preliminary examination
"'protect[s] the accused from hasty, improvident, or malicious
prosecution'" by providing defendants the right to cross-examine
the State's witnesses and to call witnesses of their own. State
v. Williams, 198 Wis. 2d 516, 527, 544 N.W.2d 406 (1996) (quoted
source omitted); see also Wis. Stat. § 970.03(5). At the
conclusion of the preliminary examination, the court must find
probable cause to believe a felony was committed in order to
bind over the defendant for trial. See id., at (7). Despite
the 10-day statutory time limit for holding a preliminary
examination, Lee's preliminary examination did not take place
until 113 days after his initial appearance.
2Lee was initially charged with the drug offenses in a
different case. After Lee made an initial appearance in that
case, authorities discovered he had given a fake name. As a
result, that case was dismissed and this case was filed, adding
the identity theft charge. In this case, Lee made his initial
appearance on September 10, 2018, but the hearing was continued
until the next day. The time Lee spent in custody before
counsel was appointed is calculated from the conclusion of the
initial appearance on September 11, 2018.
While Lee was in custody, he was also being held on an
extended-supervision hold in another case. See State v. Lee,
No. 2015CF1190 (Brown Cnty. Cir. Ct.).
5
No. 2019AP221-CR.rfd
himself and counsel."); see also State v. Forbush, 2011 WI 25,
¶43, 332 Wis. 2d 620, 796 N.W.2d 741 (recognizing that "to be
effective, [the Article I, Section 7 right to counsel] must
include the right to have the expense of counsel for indigent
defendants covered by the State."). I write separately to
discuss the systemic issues highlighted by Lee's case.
¶8 Before addressing those broader issues, however, I
briefly discuss the legal issues Lee raised in this appeal.
Section 970.03(2) gives the circuit court discretion to extend
the time limit for holding a preliminary examination "on motion
and for cause." In State v. Selders, 163 Wis. 2d 607, 472
N.W.2d 526 (Ct. App. 1991), the court of appeals held that a
circuit court's discretionary decision to extend the time limit
for "cause" must be based on the justification for the
extension, the possible prejudice to the opposing party, and,
where appropriate, the public interest. See id. at 613-16.
Here, the parties agree with the court of appeals that the
circuit court and court commissioners erroneously exercised
their discretion in finding "cause" to extend the time limit for
holding Lee's preliminary examination, because those extensions
were based solely on the fact that counsel had not yet been
appointed for Lee. See Lee, 396 Wis. 2d 136, ¶¶51–52.
¶9 The parties disagree, though, about what remedy is
appropriate. The court of appeals concluded that the circuit
court should dismiss the criminal complaint without prejudice.
See id., ¶61. Lee argues that the appropriate remedy is
dismissal with prejudice. We have repeatedly held, however,
6
No. 2019AP221-CR.rfd
that the remedy for failing to hold a timely preliminary
examination is dismissal without prejudice for lack of personal
jurisdiction. See, e.g., Armstrong v. State, 55 Wis. 2d 282,
285, 198 N.W.2d 357 (1972); Crummel v. State, 46 Wis. 2d 348,
356, 174 N.W.2d 517 (1970); State ex rel. Klinkiewicz v. Duffy,
35 Wis. 2d 369, 375, 151 N.W.2d 63 (1967). Departing from that
precedent would require a "special justification," which Lee
does not offer. See Hennessy v. Wells Fargo Bank, N.A., 2022 WI
2, ¶27, 400 Wis. 2d 50, 968 N.W.2d 684. Instead, he argues that
the circuit court's failure to hold a timely preliminary
examination means the circuit court lost competency. See
generally Green Cnty. Dep't of Human Servs. v. H.N., 162
Wis. 2d 635, 656, 469 N.W.2d 845 (1991) (failing to comply with
statutory time limits may result in the circuit court losing
competency to proceed). But even if the circuit court lost
competency, that doesn't explain why the charges against Lee
must be dismissed with prejudice——and we have never held as
much. See City of Eau Claire v. Booth, 2016 WI 65, ¶21, 370
Wis. 2d 595, 882 N.W.2d 738 (explaining that a lack of
competency means that the circuit court may not adjudicate "the
particular case before the court" (quoted source omitted)). I
therefore agree with the court of appeals that, consistent with
our precedent, the correct remedy for failing to hold a timely
preliminary examination is dismissal without prejudice for lack
of personal jurisdiction. See Lee, 396 Wis. 2d 136, ¶¶61–62.
¶10 Lee's alternative arguments are also unavailing. I
agree with the court of appeals that Lee's constitutional
7
No. 2019AP221-CR.rfd
speedy-trial claim is premature. See id., ¶62 n.24. And as for
Lee's remaining constitutional claims——that the unjustified
delay in holding a preliminary examination resulted in
violations of his Sixth Amendment right to counsel or Fourteenth
Amendment right to due process——it is not clear from the
briefing that these claims, even if successful, would give Lee
the remedy he seeks. Finally, I agree with the court of appeals
that our order in In re Petition to Amend SCR 81.02, S. Ct.
Order 17-06, 2018 WI 83 (issued Jun. 27, 2018, eff. Jan. 1,
2020) mandated only an increase in the hourly rate for court-
appointed counsel. See Lee, 396 Wis. 2d 136, ¶¶35–36.
¶11 That said, Lee's final argument merits further
attention: that we should use our superintending authority to
require circuit courts to appoint counsel at county expense when
there are delays in securing SPD-appointed counsel. See Wis.
Const. art. VII, § 3 ("The supreme court shall have
superintending . . . authority over all courts."). There are
several reasons why this court has not already done so. For
starters, appointing counsel at county expense only responds to
one reason SPD might have trouble finding an attorney willing to
accept an appointment: the low hourly rate for SPD appointments,
8
No. 2019AP221-CR.rfd
which is set by statute.3 Appointing counsel at county expense
does not, however, address the other potential obstacles SPD
might encounter, including heavy workloads or conflicts of
interest among local lawyers, or a relative lack of qualified
attorneys in a particular part of the state. Moreover, even if
the issue is the meager compensation for SPD appointments, it is
difficult to create a bright-line rule for when circuit courts
would be required to appoint counsel at the more generous county
rate, because any such line would necessarily be arbitrary and
could have significant budgetary consequences for counties.
¶12 Nevertheless, there are strong reasons to change the
status quo, namely that the costs of maintaining it are too
high. Counties bear not just the cost of paying court-appointed
counsel but also the costs "of continuing to incarcerate the
3 In Petition to Amend SCR 81.02, 2018 WI 83, we observed
that the then-applicable $40-per-hour statutory rate under Wis.
Stat. § 977.08 (2018-19) for private attorneys appointed to
represent indigent criminal defendants was "the lowest in the
entire nation." Id. at 2. Because of that "abysmally low"
rate, "SPD struggles to find counsel who will represent indigent
criminal defendants" at the statutory rate because many
attorneys "literally lose money if they take these cases." Id.
at 2–3. In Marathon County, where Lee was charged, it took the
SPD "an average of 80 contacts and 17 days to appoint a private
attorney to a case." See id. at 7.
Effective January 1, 2020, the legislature increased the
statutory rate for SPD appointments to $70 per hour. 2019 Wis.
Act 9, §§ 2244, 2245. Although that change was not in place
when the SPD sought appointed counsel for Lee, I hope it will
increase the number attorneys willing to accept SPD appointments
in the future.
9
No. 2019AP221-CR.rfd
defendant while awaiting the preliminary hearing."4 See Lee, 396
Wis. 2d 136, ¶55. In addition to the monetary costs, delays in
appointing counsel also impose significant and unquantifiable
harms on both defendants and the public. Uncounseled defendants
may be hindered in their ability to prepare a defense, engage in
plea negotiations, or seek pretrial release. See Blackledge v.
Allison, 431 U.S. 63, 71 (1977) (explaining that plea bargains
can help defendants "avoid[] extended pretrial incarceration and
the anxieties and uncertainties of a trial" and lead to speedy
disposition of the case). And failing to timely appoint counsel
to represent an indigent defendant may tarnish the public's
perception of the fairness of our criminal justice system by
suggesting that speedy justice is available only to those who
can afford a private attorney. Not to mention that delays in
appointing counsel may lead to the same negative consequences as
any other pre-trial delay, such as postponing closure for
victims or increasing the chance that witnesses may become
unavailable.
¶13 The court of appeals' decision helps to alleviate some
of these concerns by mandating that circuit courts carefully
consider and analyze, on the record, all relevant factors before
Information about the costs at the county-jail level is
4
hard to come by, but according to a 2018 report, it costs an
average of $38,644 per year (or $105.87 per day) to house an
inmate in a state correctional facility. See https://www.wisbar
.org/NewsPublications/WisconsinLawyer/Pages/Article.aspx?Volume=
91&Issue=6&ArticleID=26397#a; see also https://www.prisonpolicy.
org/blog/2017/02/07/pretrial_cost/ (nationally, pre-trial
incarceration costs local governments $13.6 billion per year).
10
No. 2019AP221-CR.rfd
extending the statutory time limit for a preliminary
examination. See Lee, 396 Wis. 2d 136, ¶50 (citing Selders, 163
Wis. 2d at 614-15); see also id., ¶¶54–55, 59 ("The
justification for extending the time limit must be set forth
with reasonable specificity, and the court must consider
countervailing factors and what weight to give them.").
Importantly, the court of appeals also emphasized that "simply
observing that the defendant has not yet had counsel appointed
by SPD is insufficient" to justify extending that time limit.
Id., ¶51.
¶14 Indeed, Lee's case perfectly illustrates that point,
as well as broader systemic issues. At each of Lee's 12 review
hearings, the circuit court or court commissioner extended the
time for holding a preliminary examination on their own motion
and often over Lee's objections. Such extensions require a
finding of cause; yet the record indicates that neither the
circuit court nor the court commissioners knew the cause for the
delay. For example, at the fifth review hearing, a court
commissioner told Lee, "I wish I could tell you what the hold up
is . . . . I'm not sure what the hold up is on your particular
case." After Lee wrote the circuit court in mid-October asking
for the case to be dismissed due to the failure to hold a
preliminary examination, more than three weeks passed before the
circuit court held a hearing on Lee's request. At that hearing,
a SPD attorney appeared and explained that SPD had contacted
over 100 attorneys and none were willing to represent Lee, but
she was not asked why that was the case. After the review
11
No. 2019AP221-CR.rfd
hearing, the circuit court observed that the delay was "getting
very, very close to the point where the Court could find a
constitutional violation," but it refused to dismiss the case.
Lee waited 44 more days for counsel to finally be appointed.
¶15 The facts of this case are concerning, and reflect a
breakdown in our system of appointing attorneys for indigent
defendants. Even prior to the COVID-19 pandemic, SPD staffing
shortages and a low hourly rate for appointed counsel resulted
in delays in finding counsel for indigent defendants, especially
to more rural parts of the state. Delays will likely increase
as the criminal-justice system responds to a statewide backlog
of more than 17,000 felony cases.5
¶16 Although circuit courts cannot solve all of the
state's appointed-counsel problems on their own, they can help
to prevent unjust delays by ensuring that extensions of time for
holding a preliminary examination are granted only upon a
finding of cause. Circuit courts should also seriously consider
using their power to appoint counsel at county expense,
especially when they find, as the circuit court put it in this
case, that the delay is "very, very close to . . . a
constitutional violation." See Douglas County v. Edwards, 137
Wis. 2d 65, 76, 403 N.W.2d 438 (1987) ("The trial court has the
authority to appoint counsel whenever in the exercise of its
discretion it deems such action necessary."). Additionally,
5 https://www.jsonline.com/story/news/local/milwaukee/2022/0
4/07/how-milwaukee-county-courts-plan-clear-case-backlog-fix-
staff-shortages/7247260001/.
12
No. 2019AP221-CR.rfd
more transformative steps are needed from all three branches of
government, including allocating additional funding for indigent
criminal defense, encouraging increased pro bono participation,
and providing incentives for attorneys to live and practice in
the rural parts of the state where these problems are
particularly pressing.6
¶17 Lee's appeal provided the court with the chance to
highlight the problems with our appointed-counsel system, so all
three branches of government can begin working toward solutions.
Because the court instead summarily dismisses the case, I
respectfully dissent.
¶18 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
6The court has the power to adopt rules of "pleading,
practice, and procedure in all courts, for the purposes of
simplifying the same and of promoting the speedy determination
of litigation upon the merits." Wis. Stat. § 751.12(1). We
have recently used that power to take steps in the right
direction, including by adopting a rule petition that allows
lawyers to elect emeritus status at age 70, relieving them of
State Bar dues and continuing-legal-education requirements,
while allowing them to continue performing pro bono work. See
In re Modification of Emeritus Status, S. Ct. Order 20-06, 2021
WI 19 (issued Mar. 2, 2021, eff. July 1, 2021). We have
likewise expanded opportunities for law students to practice
under supervision prior to graduation. See In re Petition to
Repeal and Recreate SCR Ch. 50, S. Ct. Order 20-04, 2021 WI 20(issued Mar. 2, 2021, eff. July 1, 2021). The State Bar is also
doing important work to highlight opportunities for new lawyers
and law students
to practice in rural areas. See https://www.wisbar.org/NewsPubl
ications/InsideTrack/pages/article.aspx?Volume=10&Issue=14&Artic
leID=26523.
13