State v. Divanovic
| Decision Date | 14 February 1996 |
| Docket Number | No. 95-0881-CR,95-0881-CR |
| Citation | 200 Wis.2d 210,546 N.W.2d 501 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Ismet D. DIVANOVIC, Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant the cause was submitted on the briefs of William J. Chandek of William J. Chandek & Associates of Brookfield.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Thomas J. Balistreri, Assistant Attorney General.
Before ANDERSON, P.J., and NETTESHEIM and SNYDER, JJ.
Ismet D. Divanovic appeals from a judgment of conviction for solicitation to commit a felony pursuant to § 939.30(1), STATS., and party to the crime of misdemeanor criminal damage to property pursuant to §§ 939.05 and 943.01(1), STATS. Divanovic was sentenced as a repeater pursuant to § 939.62, STATS., on both counts. Divanovic also appeals from an order denying postconviction relief.
On appeal, Divanovic contends that: (1) he was denied his constitutional right to be present at all critical stages of the trial court proceedings, (2) he was denied his right to effective assistance of counsel because his trial counsel did not actively participate in the trial court proceedings, and (3) the repeater portion of the sentence on the conspiracy conviction is invalid. We reject all of Divanovic's arguments. We affirm the judgment of conviction and the postconviction order.
We set out the history of this case at some length. During the pendency of all the trial court proceedings in this case, Divanovic was serving a state prison sentence on an unrelated conviction. On December 14, 1993, the State charged Divanovic in this case with soliciting a felony escape from the Kenosha county jail and party to the crime of intentionally causing criminal damage to property. That same day, Court Commissioner Frank J. Parise conducted an initial appearance. However, Divanovic refused to come out of his jail cell to attend the proceeding. Commissioner Parise set cash bail at $10,000 and adjourned the initial appearance to December 16.
At the adjourned initial appearance, Divanovic again refused to leave the jail and to [Divanovic] indicated specifically [that] he did not reject my representation, but he did not want me to make an appearance for him today; and he was not going to make an appearance today. Therefore, as a matter of courtesy, I am informing the Court of that; but I am bound by his instructions not to make an appearance despite the fact I'm technically representing him.
appear in court. Commissioner Parise again adjourned the initial appearance and arranged for the appointment of counsel for Divanovic. 1 At the adjourned hearing on December 23, Attorney Robert Bramscher appeared for Divanovic, but Divanovic again refused to appear. At this hearing, Bramscher reported the following to Commissioner Parise
Commissioner Parise then informed Bramscher of Divanovic's history of not appearing in court and refusing to come out of the jail, 2 and stated that the court nonetheless wanted Bramscher to attend and participate in the trial proceedings despite Divanovic's nonappearance. Commissioner Parise scheduled a preliminary hearing for January 7, 1994.
When the matter was called for preliminary hearing, Divanovic again refused to attend the proceedings. Bramscher informed Commissioner Parise that he had been instructed by Divanovic not to appear at the hearing. According to Bramscher, Divanovic said that he had been assaulted the previous night and was "unable to make an appearance." Commissioner Parise proceeded with the hearing after he determined that Divanovic had waived his right to appear. Because Divanovic had instructed Bramscher to not even appear at the hearing, Bramscher did not actively participate in the proceeding. At the conclusion of the hearing, Commissioner Parise found probable cause and bound Divanovic over for trial.
The case was then assigned to the Honorable Michael S. Fisher, who conducted the arraignment on February 4, 1994. Bramscher appeared, but Divanovic again refused to attend. Judge Fisher inquired whether the bailiff had any information about Divanovic's nonappearance. The bailiff reported that Divanovic was in the jail, that he had told the bailiff that he had fired Bramscher and that he refused to appear at the arraignment. Based on this information, Judge Fisher released Bramscher from representing Divanovic and entered "not guilty" pleas on Divanovic's behalf. Judge Fisher then scheduled the matter for a jury trial.
On April 25 and 27, 1994, Divanovic wrote to Judge Fisher acknowledging the jury trial date and asking Judge Fisher to appoint counsel for him. By letters to Divanovic, Judge Fisher denied these requests. In addition, Judge Fisher warned Divanovic that if he continued to refuse to attend the proceedings, the trial would be conducted in his absence.
On May 25, 1994, Judge Fisher conducted a pretrial proceeding to again address the question of legal representation for Divanovic. Bramscher appeared, but again Divanovic refused to appear. At this proceeding, Judge Fisher reappointed Bramscher as Divanovic's counsel.
The case was called for jury trial on June 30, 1994. Bramscher appeared. Again, Divanovic refused to appear. Prior to jury selection, Bramscher reported that since his reappointment, he had discussed possible trial tactics with Divanovic, including the possible subpoenaing of certain witnesses. However, on that morning, Divanovic had instructed Bramscher to request Judge Fisher to adjourn the trial. If Judge Fisher denied the request, Divanovic further instructed Bramscher not to participate in the proceedings even if Judge Fisher ordered Bramscher to personally remain in attendance at the trial.
Bramscher also informed Judge Fisher that he had explained to Divanovic that if he followed Divanovic's instructions, Bramscher would not be able to cross-examine any witnesses Pursuant to Divanovic's instructions, Bramscher then requested an adjournment, which Judge Fisher denied. Judge Fisher then inquired of a "Mr. Kamin" as to his knowledge of Divanovic's intentions. Kamin reported that he had spoken to Divanovic that morning and that Divanovic had advised that he would not come out of the jail to attend the trial or to don the clothing which Bramscher had brought for him to wear at the trial. 3
or call any witnesses on Divanovic's behalf. Divanovic stated to Bramscher that he understood these consequences. Nonetheless, Divanovic stood by his instructions to Bramscher because participating in the trial would "add legitimacy to the proceedings."
Judge Fisher then summarized the history of the case regarding Divanovic's lack of cooperation and his repeated refusals to appear. Based on this history, Judge Fisher confirmed his earlier ruling denying Bramscher's request for an adjournment of the trial. In the course of these remarks, Judge Fisher also recounted an unreported personal visit he previously made to Divanovic in the county jail in an effort to persuade Divanovic to attend the trial. Judge Fisher then instructed Bramscher to remain in attendance at the trial, but added that "[Bramscher] does not have to participate in any way at his client's request."
The State then asked Judge Fisher to send the bailiff over to the jail to ask Divanovic one more time to attend the trial and to warn him again that the trial would commence and continue without him if he declined to attend. Judge Fisher adopted this suggestion and the bailiff was dispatched to the jail. Moments later, Judge Fisher reported the results of the bailiff's meeting with Divanovic as follows:
The deputy that was sent over to give Mr. Divanovic his final warning concerning either coming over for the trial or having the trial go on without him reported in to the Court that he explained this to Mr. Divanovic, who clearly heard him; and all Mr. Divanovic did was wave his hand telling him to get away, and he did not say anything but waved his hand in a fashion that he didn't want Deputy Chartier talking to him; so we will proceed without him.
In due course, a jury was selected. Judge Fisher explained to the jury that Divanovic had chosen not to personally attend the trial and had instructed Bramscher not to actively participate in the trial. The matter proceeded to trial and the jury convicted Divanovic.
At the sentencing, Bramscher reported that Divanovic again refused to attend and that Divanovic had again instructed him not to participate in the proceeding. Invoking the repeater provisions, Judge Fisher sentenced Divanovic to eleven years' imprisonment on the solicitation to commit a felony conviction and three years' consecutive imprisonment on the party to the crime of criminal damage to property conviction. The sentences were ordered consecutive to the sentence Divanovic was then serving. Divanovic appeals.
Divanovic first argues that he was "denied his due process right to a fair trial" because he was not present at the critical stages of the proceedings. We stress at the outset that Divanovic casts his argument solely in constitutional terms. He does not make any argument under, nor even cite, § 971.04, STATS., which governs a defendant's right or duty to be present at the various stages of a criminal proceeding. 4
The Confrontation Clause and the Fourteenth Amendment grant an accused the right to be present in the courtroom at every stage of his or her trial. State v. Haynes, 118 Wis.2d 21, 25, 345 N.W.2d 892, 894-95 (Ct.App.1984) (citing Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970)). Although an accused has the...
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