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COURT OF APPEALS DECISION DATED AND RELEASED March 13, 1997 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0878-CR
STATE
OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
PETER EDGE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Dane County:
ROBERT A. DE CHAMBEAU, Judge. Affirmed.
Before Eich, C.J.,
Dykman, P.J., and Vergeront, J.
PER CURIAM. Peter
Edge appeals from a circuit court judgment of conviction and sentence,
resulting from his guilty plea to burglary, contrary to § 943.10(1)(a), Stats., with an increased penalty for
habitual criminality, contrary to § 939.62, Stats. He argues that the circuit court
judge should have recused himself sua sponte, and that the court erred
in failing to honor his timely request for substitution of judge. For the reasons set forth below, we affirm.
BACKGROUND
Edge and another
individual were jointly charged with burglary while armed, contrary to
§ 943.10(2)(a), Stats.,[1]
and Edge was additionally charged with habitual criminality, contrary to
§ 939.62, Stats. While the cases remained joined,[2]
Edge moved for substitution of judge, but his co-defendant did not.
The co-defendant pleaded
guilty and was sentenced, before the same judge, prior to Edge. At the co-defendant’s sentencing hearing,
the judge admonished the co-defendant to avoid Edge in the future because:
Mr.
Edge has been and will probably continue to be an active participant in the
criminal justice system¼. If you hang around with him it will quite
honestly drag you down¼. So you can take it or leave it but that’s
the best advice I can give you ¼ to
stay away from Mr. Edge.
APPLICABLE STATUTES
Section 757.19, Stats., reads in relevant portion:[3]
(2) Any judge shall
disqualify himself or herself from any civil or criminal action or proceeding
when one of the following situations occurs:
....
(g) When a judge
determines that, for any reason, he or she cannot, or it appears he or she
cannot, act in an impartial manner.
Section 971.20, Stats., reads in relevant portion:
(2) In
any criminal action, the defendant has a right to only one substitution of a
judge¼
(4) 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.
....
(6) 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.
(Emphasis
supplied).
ANALYSIS
Edge argues that the
circuit court erred in failing to sua sponte disqualify itself, because
remarks made at the co-defendant’s sentencing hearing reveal that the circuit
court was prejudiced against Edge. We
reject this argument.
Edge does not dispute
that at his co-defendant’s sentencing colloquy, the circuit court’s
characterization of Edge as a person familiar with the Wisconsin Criminal
Justice System was an accurate statement of fact. Edge’s own sentencing colloquy makes clear that Edge is a career
criminal.[4]
Prejudice arises when the judge cannot act in an impartial manner § 757.19(2)(g), Stats. Whether a judge is impartial is a subjective matter which must be determined by the judge. State v. American T.V. & Appliance, 151 Wis.2d 175, 186, 443 N.W.2d 662, 666 (1989).
Edge’s only argument for
partiality is the court’s accurate recitation of his criminal record. Normally, partiality is a matter which must
be raised before the circuit court in question. State v. Harrell, 199 Wis.2d 654, 664, 546 N.W.2d
115, 119 (1996). Once the circuit court
has ruled, we review its determination only to see whether the court “failed to
heed [its] ¼ own finding” that
recusal was required. State v.
Carviou, 154 Wis.2d 641, 646, 454 N.W.2d 562, 564 (Ct. App. 1990). However, because Edge failed to raise the
prejudice issue before the circuit court, the standard for review is set forth
in State v. Marhal, 172 Wis.2d 491, 493 N.W.2d 758 (Ct. App.
1992), where the court stated:
Since Marhal did not
assert the disqualification issue before the trial court, we do not have direct
evidence of the trial court’s view of [whether she met the subjective standard
for determining appearance of prejudice under 757.19(2)(g).]¼ Nevertheless, it is clear from the record that the trial judge
never doubted that she was impartial nor believed that [her comments] ¼ would give anyone reason
to doubt her impartiality¼. Under these circumstances, we can conclude
without the necessity for a remand that the factors mandating the trial judge’s
disqualification pursuant to section 757.19(2)(g) were not present.
Id.
at 506, 493 N.W.2d at 765.
As is evident from the
standard of review set forth in Carviou and Marhal,
our role on review is quite restricted.
Like the Marhal court, we conclude from a review of the
record that no factors exist which require disqualification. In our analysis, an accurate rendition of
Edge’s criminal history, later supported by a colloquy with Edge himself at
sentencing, does not constitute proof of prejudice of the type which triggers
necessity for remand for a § 757.19(2)(g), Stats.,
subjective prejudice analysis.
Edge also argues that
the circuit court failed to honor his timely substitution request. We disagree. Edge requested substitution at a point in time when his case was
joined to his co-defendant’s. As set
forth above, § 971.20(6), Stats., requires
that “the request for substitution shall be made jointly by all
defendants.” (Emphasis supplied.)
Edge does not argue that
his co-defendant joined in his request.
Instead, he appears[5]
to be arguing either improper joinder or de facto non-joinder. Because
his argument is unsupported by citation to the facts of this case, to statutes
or to case law, we would normally decline to address it. In re Balkus, 128 Wis.2d 246,
255 n.5, 381 N.W.2d 593, 598 (Ct. App. 1985).
We note, however, that Edge failed to seek any sort of review of his
request. It is the defendant’s
obligation to promptly seek review. State
ex rel. Nowak v. Circuit Court for Waukesha County, 169 Wis.2d 395,
397, 485 N.W. 2d 419, 421 (Ct. App. 1992).
Failure to do so results in waiver.
Id. at 398, 485 N.W.2d at 421. The matter was accordingly waived.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See rule 809.23(1)(b)5, stats.
[3] Section 757.19(2)(a) through (f), Stats., sets forth the factors to be used when an objection exists capable of objective analysis, such as a blood relationship, etc. Edge, however, claims only an objection under subsec. (g).
[4] At Edge’s own sentencing, the
circuit court stated:
I think the
other thing that there has to be a recognition that we can’t condone or
tolerate repeat offenders. And there is
a recognition of that, and the fact that you are, and the district attorney
decided to charge you as a repeater. So
I think to that extent there is a necessity to, to deter not only you, but
other people who choose to constantly take as their own other people’s property¼.
Accordingly,
Judge Bartell gave you 10 years last time, it didn’t seem to strike a
responsive note. At a minimum I have to
give you that, but I think in recognition of the fact that you are a repeat
offender and continue to repeat and repeat and repeat, that there has to be
some additional sentence to recognize your repeater status and that the
community can’t tolerate that type of repeat conduct.