State v. Dean, Nos. 90-1974-C

• Court: Court of Appeals of Wisconsin
• Writing for the Court: ANDERSON
• Citation: 163 Wis.2d 503,471 N.W.2d 310
• Docket Number: Nos. 90-1974-C,90-1975-CR
• Decision Date: 29 May 1991
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Arvid E. DEAN, Defendant-Appellant.

Page 310

471 N.W.2d 310 163 Wis.2d 503 STATE of Wisconsin, Plaintiff-Respondent,
v.
Arvid E. DEAN, Defendant-Appellant. Nos. 90-1974-CR, 90-1975-CR. Court of Appeals of Wisconsin. Submitted on Briefs Jan. 16, 1991.
Opinion Released May 29, 1991.
Opinion Filed May 29, 1991.

Page 312

[163 Wis.2d 507] Charles Bennett Vetzner, Asst. State Public Defender, for defendant-appellant.

Phillip A. Koss, Dist. Atty. and Jayne Davis Dewire, Asst. Dist. Atty., for plaintiff-respondent.

Before BROWN, SCOTT and ANDERSON, JJ.

ANDERSON, Judge.

Arvid E. Dean appeals two convictions of operating a motor vehicle while under the [163 Wis.2d 508] influence of an intoxicant (OWI), contrary to sec. 346.63(1)(a), Stats. Dean also appeals from an order denying a portion of his motion for postconviction relief. The issue is whether the trial court's refusal to appoint counsel based solely on the state public defender's determination of nonindigency was a denial of his right to counsel. Because this court concludes that Dean was denied his right to counsel when Judge John R. Race and Judge Robert J. Kennedy deferred to the public defender's findings without additional inquiry into the necessity of appointed counsel, we reverse the judgments and order, and remand for a new trial.

At Dean's initial appearance on the first OWI arrest, he told Judge Kennedy that he could afford to retain private counsel. However, after contacting an attorney, Dean concluded that he could not afford to hire an attorney and sought representation from the public defender. The public defender's office determined that Dean was not indigent based on the criteria found in sec. 977.07(2), Stats., and Wis.Adm.Code sec. SPD 3.01 et seq. Dean requested judicial review of this determination. Judge Kennedy approved the public defender's calculations and found that Dean had sufficient assets to hire an attorney. At the conclusion of the hearing, Dean executed a waiver of counsel form although he still wanted an attorney.

Subsequently, Dean made an initial appearance on the second OWI arrest; he immediately claimed indigency and was referred to the public defender. Again the public defender determined that Dean was not indigent; Judge Kennedy denied Dean's request for appointed counsel; and, Dean executed a waiver of counsel form.

Dean appeared without counsel to enter a plea of guilty to the two OWI charges. Judge Kennedy found him guilty of both charges. On the first charge he was [163 Wis.2d 509] sentenced to six months in the county jail, and on the second charge he was given a consecutive five-month jail term.

For postconviction proceedings, Dean qualified for representation from the public defender. Dean filed a motion for postconviction relief alleging that Judge Kennedy abused his sentencing discretion and that he was denied his right to the assistance of counsel.

During the postconviction hearing, the district attorney stipulated that Dean had been indigent when he was convicted of the two separate OWI offenses. However, the trial court refused to review independently

Page 313

the public defender's indigency findings and a request to vacate Dean's conviction on the ground that he was denied his right to counsel. Judge Race stated:

Once the public defender's office has made that finding, it's my practice in this court and I think it was Judge Kennedy's practice, not to go beyond that and impose representation on the Public Defender's office because we know what the effect of it is.... We further know the county will be billed for it.... I don't have separate standards. If there's mathematical error made, I would hear it. But if the standards of the Public Defender's office are met, I don't appoint and I don't propose to appoint.

Judge Race also stated that "Judge Kennedy before me and this Court simply find that if the Public Defender determines that the working poor are not indigent ... the Court has to give administrative rules and regulations deference."

Dean obtained an order for postconviction relief from Judge Race, which reduced his imprisonment for each conviction to thirty days.

The issue presented to this court is whether the trial court's refusal to appoint counsel based solely on the [163 Wis.2d 510] state public defender's determination of nonindigency was a denial of Dean's right to counsel. Both parties confine their arguments to the scope of review under sec. 977.07(3), Stats. ¹ Therefore, the resolution requires us to proceed under two separate analyses. First, what is the scope of the trial court's review under sec. 977.07(3), and second, what additional considerations apart from sec. 977.07(3) are required for the court's final determination of whether counsel should be appointed to the defendant.

The first analysis involves the construction of sec. 977.07(3), Stats. Construction of a statute is a question of law which this court considers de novo. State v. Fouse, 120 Wis.2d 471, 476, 355 N.W.2d 366, 369 (Ct.App.1984). The primary source for the construction of a statute is the language of the statute itself. State v. Sher, 149 Wis.2d 1, 8-9, 437 N.W.2d 878, 880 (1989). When the statutory language is clear and unambiguous, the court is to arrive at the intention of the legislature by giving the language its ordinary and accepted meaning. State v. Engler, 80 Wis.2d 402, 406, 259 N.W.2d 97, 99 (1977). The issue involves the scope of the phrase "review any indigency determination."

In sec. 977.07(2), Stats., the legislature clearly set forth the criteria the public defender's office must use when making a determination of indigency for a defendant to qualify for public defender representation. Section 977.07(3), providing for review, immediately follows. [163 Wis.2d 511] The scope of the trial court's review under sec. 977.07(3), then is to examine the public defender's application of the legislative criteria and the accompanying mathematical computations. Thus, under sec. 977.07(3), the court's "review [of] any indigency determination" is limited to determining whether the public defender properly followed the legislative criteria.

The trial court's finding of fact may not be overturned on appeal unless it is clearly...