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COURT OF
APPEALS DECISION DATED AND
RELEASED December
5, 1996 |
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. 96-1854
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
GILLES
GLASSIOGNON,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Dane County: STUART A. SCHWARTZ, Judge. Affirmed.
EICH,
C.J.[1] Gilles Glassiognon appeals from a judgment
convicting him of unlawful use of a telephone, as a repeater, in violation of
§ 947.012(1)(a), Stats.,[2]
and from an order denying his motion for postconviction relief. He tried the case to a jury pro se, and he
argues on appeal that the trial court erred in determining that he had validly
waived his right to an attorney. We
disagree and affirm the judgment and order.
When
Glassiognon made his initial appearance on the charge, on August 24, 1994, he
was represented by a public defender and released on a signature bond. Glassiognon did not appear at a pretrial
conference on September 7, but was represented by an assistant public
defender. A final conference was held
on November 9 and, when Glassiognon failed to appear, a bench warrant was
issued for his arrest. His attorney
telephoned the prosecutor and, based on his representation that Glassiognon was
prepared to plead to the charge, the warrant was withdrawn.
Glassiognon
appeared, with counsel, at the plea hearing on December 5, 1994, and stated
that he had changed his mind and did not wish to plead to the charge, but
wished to go to trial instead. At
Glassiognon's request, the case was adjourned to a later date. Because Glassiognon appeared to be changing
addresses with some frequency, the court asked for his present address and
warned him that it was his responsibility to notify the court of any address
change. The court also stated it would
not postpone the case indefinitely. The
case was scheduled for jury trial on March 22, 1995, with the jury to be drawn
on March 20.
Glassiognon
did not appear on the jury-draw date, apparently having failed to receive the
notice because he had moved to another address without informing the
court. The case was again set for
trial, with the jury to be drawn on May 30, 1995. On that date, Glassiognon's public defender attorney informed the
court that his office had re-calculated Glassiognon's financial data and
determined that he was not entitled to representation at public expense. Counsel stated that he had discussed with
Glassiognon the possibility of proceeding pro se, and that Glassiognon had
chosen to do so and "would like to waive his right to a jury
trial." Protesting that he was
eligible for public defender assistance, Glassiognon asked if he could "go
through the process" again to "see if I'm qualified." He said he wanted a lawyer. The court told him to iron it out with the
public defender's office immediately and it would review their
determination. The court, noting that
Glassiognon had "waited until the morning of jury selection to go through
this process," advised him: "In the event that you are not eligible
for Public Defender representation, then your choice is to go ahead and either
hire an attorney to represent you or represent yourself in this matter."
The
public defender's office apparently confirmed its determination of
ineligibility and, on June 14, 1995, the court held an "indigency
hearing." Again Glassiognon failed
to appear.[3] The court began by reciting at length the
delays and adjourned hearings characterizing the case since its inception
nearly a year earlier and, after reviewing Glassiognon's financial data, ruled
that he was ineligible for public defender representation.
Jury
selection for Glassiognon's trial was scheduled for July 3, 1995, and he
appeared on that date without counsel.
After verifying Glassiognon's refusal of the State's earlier
plea-bargain offers, the court advised him of the possible penalties he could
face should he be found guilty after trial.
Acknowledging the "risk" that proceeding to trial pro se
presented, Glassiognon stated he was willing "to take that risk" and
wanted to go forward because he was "looking for justice [and] ... truth." The court then asked Glassiognon whether he
had any questions, which prompted a lengthy discussion about Glassiognon's
contacts with the public defender's office and his missed court appearances. In response to another of Glassiognon's
questions, the court stated it would instruct the jury that it was to draw no
inferences or conclusions from his self-representation and that it would give
him "leeway" in the conduct of his defense.
The
jury was selected and the trial proceeded a day or so later without further
ado. Glassiognon was found guilty and
sentenced to ninety days in the county jail.
Again—inexplicably—represented
by a public defender, Glassiognon filed postconviction motions in which he
sought a new trial, claiming he was denied the right to counsel. The prosecutor, arguing against the motion,
stressed that the history of Glassiognon's case was one of misuse of the system
and delaying tactics on his part, and asked the court to rule that a "constructive
waiver" of counsel had occurred.
The
court began its discussion of the motion by describing Glassiognon as "a
very intelligent man" who, from the very start, "intended to
manipulate this entire trial."
After detailing the history of the proceedings and the several
nonappearances by Glassiognon—noting at one point that "whenever Mr.
Glassiognon doesn't want something to occur, he doesn't receive the
notices"—the court stated that, while Glassiognon had from time to time
said he wanted to be represented by an attorney,
[w]hat [he] will not say is that he was given every
opportunity to retain an attorney. I
set this case over at least five times.
I gave him between the first trial date in December to [some] ... time
in May when he found out that the Public Defender was no longer representing
him, until the time that we ultimately had the trial in this case which was ...
more than ample opportunity to retain counsel.
The
court concluded:
I believe that Mr. Glassiognon through his
conduct ... has waived his right to counsel in ... that his tactics were so
[e]gregious and his attitude so uncooperative that there was no sense in going
ahead with any further discussions regarding counsel....
....
I believe [his] behavior constitutes a waiver and that
at some point in time [on] the basis of just being able to try a case and to
bring the proceedings to a conclusion, the Court has to say enough is enough,
and that was the position that I took....
I think his conduct in this ... case was so egregious that he has
through his own behavior waived his right to counsel.
The
court denied Glassiognon's motion and this appeal followed.
We
agree with Glassiognon that there is nothing in the record from which we could
conclude that he expressly waived his right to counsel.[4] The State, apparently conceding the point,
confines its argument to one of "constructive waiver," maintaining
that, through his actions, Glassiognon must be held to have waived counsel.
In
State v. Woods, 144 Wis.2d 710, 715, 424 N.W.2d 730, 732 (Ct. App.
1988), we held that a defendant may be "deemed" to have waived
counsel when, as the result of his or her actions, "the orderly and
efficient progression of th[e] case [is] being frustrated."[5] Woods, having gone through four appointed
attorneys in a pretrial period stretching from December 1984 to October 9,
1986, and, on the latter date, having requested either an adjournment of the
trial or appointment of a fifth, was held to have "deemed by his own
actions that the case proceed [pro se]."
Id. at 715-16, 424 N.W.2d at 732 (emphasis omitted). The question, we said, was one of
discretion, and we concluded that, on the facts before it, "the trial
court did not misuse its discretion in trying the case on [the scheduled] day
and requiring Woods to proceed pro se." Id. at 715, 424 N.W.2d at 732.[6]
The
supreme court's recently issued opinion in State v. Cummings, 199
Wis.2d 722, 546 N.W.2d 406 (1996), has been discussed in both parties'
briefs. The Cummings
court, after specifically "approv[ing]" our decision in Woods,
held, on the facts of the case before it,[7]
that the trial court had correctly determined that the defendant had
"forfeited his Sixth Amendment right to counsel." Id. at 759-60, 546 N.W.2d at
421. The court went on to state in a
footnote that it was "recommend[ing] that trial courts in the future, when
faced with a recalcitrant defendant," follow four specific steps set forth
in the dissenting opinion "before determining that a defendant has
forfeited his or her right to counsel."
Id. at 757 n.18, 546 N.W.2d at 420.[8] Because Cummings was decided
after Glassiognon's trial—and because the court's "in the future"
language indicates an intention that it not apply retroactively—we think the
case is of little value here.
The
issue becomes, then, whether the trial court erroneously exercised its
discretion when it concluded that Glassiognon had, by his conduct,
"waived" or "forfeited" his right to counsel.
We
will not reverse a discretionary determination "if the record shows that
discretion was in fact exercised and we can perceive a reasonable basis for the
[trial] court's decision." Prahl
v. Brosamle, 142 Wis.2d 658, 667, 420 N.W.2d 372, 376 (Ct. App.
1987). "Where the record shows
that the trial court looked to and considered the facts of the case and
reasoned its way to a conclusion that is (a) one a reasonable judge could reach
and (b) consistent with applicable law, we will affirm the decision even if it
is not one with which we ourselves would agree." Burkes v. Hales, 165 Wis.2d 585, 590, 478 N.W.2d
37, 39 (Ct. App. 1991) (footnote omitted). "Indeed, we generally look for
reasons to sustain discretionary decisions." Id. at 591, 478 N.W.2d at 39.
We
have sometimes said that the trial court's discretionary authority constitutes
"a limited right to be wrong" in that its discretionary
determinations are not tested by some subjective standard—or even by our own
sense of what might be a "right" or "wrong" decision in the
case—but rather will stand unless it can be said that no reasonable judge,
acting on the same facts and underlying law, could reach the same
conclusion. State v. Jeske,
197 Wis.2d 905, 913, 541 N.W.2d 225, 228 (Ct. App. 1995) (quoting M. Rosenberg,
Appellate Review of Trial Court Discretion, 79 F.R.D. 173, 176 (1979)).
We
have set forth the basis for the trial court's ruling—as explained both at
trial and at the postconviction motion hearing—at some length. We are satisfied that explanation is more
than adequate to establish that the court "`under[took] a reasonable
inquiry and examination of the facts,'" and because "`the record
shows ... a reasonable basis for the ... court's determination,'" we are
bound to uphold that determination as a sustainable exercise of discretion,
regardless of whether we would rule the same way in the first instance. Burkes,
165 Wis.2d at 590-91, 478 N.W.2d at 39 (quoted source omitted).
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] The complaint alleged that Glassiognon made a
threatening telephone call to an automobile service center.
[3] The court expressly found that Glassiognon
had been aware of the indigency hearing and that he understood full well that,
despite his protestations, he was not eligible for public defender representation.
[4] In Pickens v. State, 96 Wis.2d
549, 563-64, 292 N.W.2d 601, 609 (1980), the supreme court held that
in order for an accused's waiver of his right to counsel
to be valid, the record must reflect not only his deliberate choice to proceed
without counsel, but also his awareness of the difficulties and
disadvantages of self-representation, the seriousness of the charge or
charges he is facing and the general range of possible penalties that may be
imposed if he is found guilty. Unless
the record reveals the defendant's deliberate choice and his awareness of these
facts, a knowing and voluntary waiver will not be found.
(Emphasis
added).
The
record in this case simply does not meet these standards.
[5] We cited State v. Scarbrough,
55 Wis.2d 181, 197 N.W.2d 790 (1972), for this proposition. In Scarbrough, the supreme
court referred to a still earlier case, Rahhal v. State, 52
Wis.2d 144, 148, 187 N.W.2d 800, 803 (1971), where, in commenting on the
problems caused by last minute substitutions of defense attorneys in criminal
cases, the court stated: "We agree with the majority of federal courts
which have repeatedly held the right to counsel cannot be manipulated so as to
obstruct the orderly procedure for trials or to interfere with the administration
of justice."
[6] Without referring to our holding in Woods,
we held in State v. Haste, 175 Wis.2d 1, 30-32, 500 N.W.2d 678,
689-90 (Ct. App. 1993)—on what appears to have been an equally egregious set of
facts, and without considering the discretionary nature of the trial court's
determination—that the defendant had not waived his right to counsel.
[7] The Cummings majority does not
discuss in any detail the facts leading up to that determination. It notes only that the defendant had gone
through several court-appointed attorneys and, while never actually requesting
them to withdraw, "he consistently refused to cooperate with any of them
and constantly complained about their performance." Cummings, 199 Wis.2d at 754,
546 N.W.2d at 418-19. Other than that
reference, the court states simply: "There can be no doubt from the record
that [the defendant]'s behavior was manipulative and disruptive and that his
continued dissatisfaction was based solely upon a desire to delay." Id.
(1) explicit warnings that, if the defendant persists in
... [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; [and] (4) factual findings
to support the court's ruling ....
Cummings, 199 Wis.2d at 765, 546 N.W.2d at 423 (Geske, J., dissenting).