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COURT OF APPEALS DECISION DATED AND RELEASED August 8, 1995 |
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. 95-0890-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
SIDNEY EARL RUSHING,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: DANIEL L. KONKOL, Judge. Reversed and remanded.
SCHUDSON, J.[1] Sidney Rushing appeals from the judgment of
conviction for retail theft, habitual criminality, and from the trial court
order denying his motion for postconviction relief. He argues that the trial court failed to make an adequate inquiry
into his request for new counsel.
On November 16, 1993
Rushing was charged with retail theft-habitual criminality. From November 23, 1993, until the issuance
of a bench warrant for him on May 10, 1994, Rushing was represented by
Assistant State Public Defender Glen Yamahiro.
On August 11, 1994, Rushing was appointed new counsel, Stanley
Michelstetter.
On August 16, 1994
Rushing appeared for a status date. Mr.
Michelstetter informed the court that Rushing was dissatisfied with his
representation and desired new counsel.
Although Michelstetter advised the court that he would file a formal
motion to withdraw, the trial court immediately denied the motion:
MR.
MICHELSTETTER: Your Honor, we have
had—I have had discussions with Mr. Rushing, who has indicated that he does not
wish at this time to enter into a plea agreement. I have reviewed that with him.
He also indicated to me that he's dissatisfied with my representation
and that he would prefer to have a different attorney if that is possible. I am going to file a motion for—motion to
withdraw, and I would just note that I am scheduled to be in this court on
August 25th at 8:30, and would request the Court to set that motion to withdraw
at that time. I will notify the Public
Defender accordingly.
THE
COURT: He has already filed a demand
for a speedy trial, so I don't know that we're going to have time to get other
counsel involved in the case, and its time limits are running at this
point. You have been appointed by the
Public Defender?
MR.
MICHELSTETTER: I have been appointed by
the Public Defender. I replaced another
counsel.
THE
COURT: All right. They only come up with two attorneys. The defendant has every right to be
represented by an attorney, but it's not an attorney of his choosing, so I
guess I can tell you right away at this point the motion to withdraw would have
to be denied.
MR.
MICHELSTETTER: Okay. Then I will—
THE
DEFENDANT: I want—can I say something?
THE
COURT: What is it?
THE
DEFENDANT: I would like to say how can
you deny a motion that's not ineligible [sic] right now with this court?
THE COURT:
It's denied.
Rushing argues that the
trial court failed to conduct the hearing required under State v. Lomax,
146 Wis.2d 356, 432 N.W.2d 89 (1988).
The State agrees.
In reviewing whether a
trial court's denial of a motion for substitution of defense counsel is an
erroneous exercise of discretion, this court must consider a number of factors,
including:
(1)
the adequacy of the court's inquiry into the defendant's complaint; (2) the
timeliness of the motion; and (3) whether the alleged conflict between the
defendant and the attorney was so great that it likely resulted in a total lack
of communication that prevented an adequate defense and frustrated a fair
presentation of the case.
Lomax, 146
Wis.2d at 359, 432 N.W.2d at 90. Here,
as the parties agree, the trial court provided no inquiry into Rushing's
request for new counsel. In this case,
not only did the trial court erroneously exercise its discretion by failing to
make the required inquiry when Rushing first made his request, but it again
failed to make any inquiry when Rushing attempted to obtain the required
hearing through his postconviction motion.
The remedy for a trial court's failure to make that inquiry is a retrospective
hearing for consideration of the Lomax criteria. See State v. Kazee, 146 Wis.2d
366, 376, 432 N.W.2d 93, 97 (1988).
Accordingly, this court
reverses and remands to the trial court for a Lomax hearing.
By the Court.—Judgment
and order reversed and remanded.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.