COURT OF APPEALS DECISION DATED AND RELEASED February
8, 1996 |
NOTICE |
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
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No. 95-1546
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
COUNTY
OF LA CROSSE,
Plaintiff-Respondent,
v.
G.
BRADFORD MERKL,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for La Crosse County: MICHAEL J. MULROY, Judge. Reversed and cause remanded with
directions.
VERGERONT,
J.[1] G.
Bradford Merkl appeals from a judgment of conviction for disorderly conduct and
resisting arrest in violation of §§
9.947.01 and 9.946.41, La Crosse County
Ordinances. The trial was to the
court. The court imposed a forfeiture
of $175 for the disorderly conduct and a forfeiture of $297 for resisting
arrest. Merkl appeals on a number of
grounds, one of which is that he was not notified of his right to a jury trial
and of the procedure for requesting a jury trial as required by statute. We conclude that Merkl is entitled to a new
trial before a jury because he was not notified of his right to a jury trial
and the procedure for requesting a jury trial as required by §§ 345.34(1),
345.425(1) and 345.43(1), Stats. We find it unnecessary to reach the other
issues Merkl raises on appeal.
Merkl
made an initial appearance on January 20, 1995, on a complaint issued alleging
the two ordinance violations. While an
assistant public defender appeared with Merkl, the court explained that because
Merkl was charged with ordinance violations, the public defender's office could
not represent him. The court also
explained that the penalty for each ordinance violation is a forfeiture of not
less than $5 nor more than $500. Merkl
pled not guilty. The court stated that
based on the pleas of not guilty, the matter would be set for a pretrial
conference and Merkl would receive notice of that. Merkl was released on a $200 signature bond with conditions that
he have no contact with the Hollywood Theatre, the location at which the
incident giving rise to the charges occurred.
The transcript of the initial appearance shows that there was no mention
of a jury trial or how Merkl could obtain one.
A
pretrial conference was held on February 21, 1995, at which time the matter was
scheduled for trial on April 20. Merkl
appeared, made a written demand for a jury trial and paid the applicable
fees.
Merkl
appeared unrepresented on April 20, 1995.
When his case was called, he stated that he wished to have a trial
before a jury because he had paid the fee.
The court responded that the fee was not filed in time because it had to
be filed within ten days. Merkl said he
was not given notice of that time. The
court denied the request for a jury trial, concluding that it did not have to
advise Merkl of the law.
The
construction of a statute in relation to a set of facts is a question of
law. Tahtinen v. MSI Ins. Co.,
122 Wis.2d 158, 166, 361 N.W.2d 673, 677 (1985).
Section
345.34(1), Stats., governing
ordinance violations, provides:
If the defendant
appears in response to a citation, or is arrested and brought before a court
with jurisdiction to try the case, the defendant shall be informed that he or
she is entitled to a jury trial and then asked whether he or she wishes
presently to plead, or whether he or she wishes a continuance. If the defendant wishes to plead, the
defendant may plead guilty, not guilty or no contest.
Section
345.425, Stats., provides:
(1) The
defendant shall be informed of his or her right to a jury trial in circuit
court on payment of fees required by s. 345.43(1).
(2) If both
parties, in a court of record, request a trial by the court or if neither
demands a trial by jury, the right to a trial by jury is waived.
Section
345.43(1), Stats., provides in
part:
If a case has been
transferred under s. 800.04(1)(d), or if in circuit court either party files a
written demand for a jury trial within 10 days after the defendant enters a
plea of not guilty under s. 345.34 and immediately pays the fee prescribed in
s. 814.61(4), the court shall place the case on the jury calendar of the
circuit court.... If no party demands a
trial by a jury of 12, the right to trial by a jury of 12 is waived forever.
The
State concedes that § 345.34(1), Stats.,
requires that a defendant in a forfeiture proceeding for an ordinance violation
be informed that he or she has a right to a jury trial. The State apparently does not concede that
these statutes require that the defendant also be informed that he or she must
pay jury fees within ten days of entering a guilty plea in order to have a jury
trial. However, the State does not
explain how § 345.425, Stats.,
can be reasonably read otherwise, and we conclude it cannot be.
The
phrase "on payment of fees required by s. 345.43(1)" must modify
"right to a jury trial in circuit court." The only other phrase it could modify is "[t]he defendant
shall be informed" because that is the only other phrase in the sentence. But that reading of the sentence produces an
unreasonable result: "On payment
of fees required by §§ 345.425 and 345.43(1), Stats., the defendant shall be informed of his or her right
to a jury trial." It makes no
sense to require that a defendant be informed of his or her right to a jury
trial after the required jury fee has been paid. Since "on payment of fees required by s. 345.43(1)"
modifies "right to a jury trial," it follows that the information
that must be provided to the defendant is the information that the defendant
has a right to a jury trial if the defendant files a written demand for a jury
trial and pays the jury fees within ten days of entry of the not guilty plea,
as required by § 345.43(1).
The
State concedes that there is no evidence in the transcript of the initial
appearance that Merkl was informed that he had a right to a jury trial provided
he pay the applicable jury fee within ten days. There is no evidence elsewhere in the record indicating that he
was so informed. Indeed, there is no
evidence that Merkl was informed at the initial appearance that he was entitled
to a jury trial, although the State agrees that § 345.34(1), Stats., requires that.
The
State does not argue that, if there were an error in failing to inform Merkl of
his right to a jury trial and how to obtain one, such an error is harmless. We conclude the error is not amenable to a
harmless error analysis. See Sullivan
v. Louisiana, 508 U.S. 275, ___, 124 L.Ed.2d 182, 190 (1993)
(structural defects in the constitution of the trial mechanism, as opposed to
errors which occur during the presentation of the case to the jury and which
may be assessed in the context of the evidence presented, defy analysis by
harmless-error standards); Wold v. State, 57 Wis.2d 344, 357, 204
N.W.2d 482, 491 (1973); Olympia Hotels Corp. v. Johnson Wax Dev. Corp.,
908 F.2d 1363, 1369 (7th Cir. 1990) (issues of entitlement to a particular kind
of tribunal are not subject to the harmless error rule). Merkl is therefore entitled to a new trial
before a jury.[2]
By
the Court.—Judgment reversed
and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.