State v. Jones

• Decision Date: 08 July 2010
• Docket Number: No. 2008AP2342–CR.,2008AP2342–CR.
• Citation: 2010 WI 72,326 Wis.2d 380,797 N.W.2d 378
• Parties: STATE of Wisconsin, Plaintiff–Respondent,v.Dwight Glen JONES, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

326 Wis.2d 380

797 N.W.2d 378

2010 WI 72

STATE of Wisconsin, Plaintiff–Respondent,

v.Dwight Glen JONES, Defendant–Appellant–Petitioner.

No. 2008AP2342–CR.

Supreme Court of Wisconsin.

Argued April 12, 2010.Decided July 8, 2010.

For the defendant-appellant-petitioner there were briefs and oral argument by Ellen Henak, assistant state public defender.For the plaintiff-respondent the cause was argued by Eileen W. Pray, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.¶ 1N. PATRICK CROOKS, J.

This is a review of an unpublished opinion of the court of appeals affirming a judgment and order of the circuit court for Milwaukee County. Dwight Glen Jones appeals from his judgment of conviction and an order denying his post-conviction motion seeking a new trial. He seeks a new trial on the grounds that the circuit court erred when it denied his request to substitute counsel. He contends that the denial was error because the circuit court should have given more weight to the timeliness of his request—made more than three months before trial—and should have balanced that with the conflict he had with trial counsel. He claims that the dispute related partly to his severe hearing impairment. He also argues that the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution give him the right to reject his appointed counsel and, because substitute counsel was available through the Office of the State Public Defender (SPD), to have a second attorney appointed. His basis for the constitutional claim is that the United States Supreme Court and this court have both upheld, though on slightly different constitutional grounds,¹ a defendant's right to retained counsel of choice; he contends that such a right should be applied to indigent defendants to the extent possible and would require a court to grant his request for substitution of counsel.

¶ 2 The issues we address are first, whether Jones is entitled to a new trial on the grounds that the circuit court wrongly denied his request for substitution of counsel, and second, whether he is entitled to a new trial on the grounds that such a denial violates rights guaranteed by the Wisconsin Constitution and the Sixth Amendment to the United States Constitution.

¶ 3 We agree with the court of appeals that the circuit court, in denying Jones' motion for a new trial, considered the relevant factors, including Jones' stated reasons for wanting new counsel and his ability to read written English and to speech read,² and applied a proper standard of law as set forth in State v. Lomax.³ Because the circuit court did so and reached a conclusion that a reasonable judge could reach, there was no erroneous exercise of discretion in denying his request for substitution of counsel, and therefore the order denying the post-conviction motion for a new trial was proper.⁴

¶ 4 We reject as well Jones' argument that indigent defendants with appointed counsel have a right, under the constitutions of Wisconsin and the United States, to reject appointed counsel in favor of substitute counsel. Jones has not cited any case where a court has so held, and we are unaware of any. Of course, nothing bars a defendant from requesting substitution of counsel, nothing bars the SPD from choosing to make substitute counsel available, and nothing bars a court from granting such a request. The question is whether a court is required by the Sixth Amendment to the United States Constitution or by Article I, Section 7 of the Wisconsin Constitution to do so solely because a defendant requests it. This court and the United States Supreme Court have held that it is not. As the Seventh Circuit Court of Appeals put it, the Sixth Amendment does not guarantee “a friendly and happy attorney-client relationship,” ⁵ but rather effective assistance of counsel. Even if Jones was dissatisfied with the number of letters and visits from his counsel, and took offense at counsel's assessment of the strength of the case, it is evident from the record that counsel visited Jones, wrote him letters, conveyed plea offers, reviewed discovery with him and discussed with him during trial matters such as the defendant's decision about whether to testify. It is clear that the two communicated and that an adequate defense was presented. There was therefore no violation of Jones' right to counsel under the Sixth Amendment to the United States Constitution and under the Wisconsin Constitution, and the circuit court properly denied Jones' motion for a new trial on that basis.

¶ 5 Accordingly, we affirm the court of appeals decision affirming the denial of Jones' motion for a new trial.

I. PROCEDURAL HISTORY

¶ 6 We begin by briefly setting forth the procedural history of this case. A jury found Jones guilty of seven charges related to car thefts and break-ins. Jones filed a post-conviction motion for a new trial, which the circuit court denied. Jones appealed his judgment of conviction and the denial of the post-conviction motion. The court of appeals reversed the circuit court's order denying the motion for a new trial and remanded for an evidentiary hearing on Jones' contentions. Following remand, the circuit court held a two-day evidentiary hearing and then denied the motion for a new trial. Jones again appealed the judgment of conviction and the denial of the post-conviction motion. The court of appeals affirmed both. Jones then petitioned this court for review, and we granted his petition.

II. BACKGROUND

¶ 7 In early spring of 2005, there was a rash of break-ins and car thefts in a parking structure on Milwaukee's east side. One of the stolen vehicles was later located on a Milwaukee street, and officers conducting surveillance saw Jones walk up to the car, start it, and drive off in it. They followed him until he parked and got out of the car. Police observed that the car's steering column was peeled, so that it could be started without a key. Officers then approached Jones, who ran. They chased Jones for three blocks, found him under a porch, and arrested him. A security guard who had witnessed one of the break-ins identified Jones as the person who took the vehicle. Security camera footage of two of the thefts showed a man whom the security guard identified as Jones stealing a radio from a car on one occasion and stealing a car on another. Jones was charged in May 2005 with theft, criminal damage to property, obstruction, entry into a locked vehicle, operating after revocation, and operating a vehicle without the owner's consent. All counts were subject to the habitual criminality enhancer.

¶ 8 Jones was indigent, and the SPD appointed counsel to represent him. As the court of appeals noted,

According to Jones, he has no hearing in his right ear, and he has twenty-five percent hearing in his left ear. He wears hearing aids that do not allow him to hear normally. He knows sign language, he can read lips, and he can speak aloud in English.

State v. Jones ( Jones II ), No.2008AP2342–CR, unpublished slip op., ¶ 4, 2009 WL 2366445 (Wis.Ct.App.2009). Jones' hearing aids were broken on the day of his arrest and he did not have working hearing aids during the pendency of this case. Counsel appointed to represent Jones did not know sign language. It is not disputed that besides appearing at status hearings where Jones was not present, counsel met with Jones on May 10, 2005, before the preliminary hearing; on August 19, 2005; on October 17, 2005; and on January 26, 2006. Counsel also sent Jones detailed letters on the status of the case on August 16, August 30, and October 13, 2005. At the preliminary hearing, ⁶ when the court was unable to procure an interpreter for Jones, the court gave Jones the choice of adjourning the hearing or proceeding with “real-time reporting,” which allows the court reporter to transcribe the proceedings in such a way that the words appear on a screen as they are spoken. Jones' counsel informed the court,

I did discuss both options with him. His desire is to proceed today. He indicates to me that he has attended the School for the Deaf in Delavan and completed a high school degree ... in the MPS program for the deaf, so—and he has no problem reading as long as he doesn't have to go too fast.The preliminary hearing proceeded and Jones was bound over for trial. The trial was adjourned once to October 17, 2005, and then again to February 6, 2006; the adjournments were necessary because the interpreters were unavailable, and Jones did not request either adjournment.

¶ 9 While the case was pending, the circuit court received two letters from Jones complaining about his appointed counsel. The letters to the court, dated October 17, 2005, and October 30, 2005, asked that his appointed attorney be permitted to withdraw,⁷ giving the following reasons: the attorney was not acting in Jones' best interest, the attorney had not been truthful, the attorney had visited Jones only once during the six months he had been in custody, and some of Jones' letters to the attorney had not been answered.⁸

¶ 10 After receiving a motion to withdraw from Jones' counsel on October 26, 2005, the circuit court, Judge Elsa C. Lamelas presiding, held a motion hearing. Prior to the hearing, the record reflects that the court questioned how the interpreters, who were there to assist Jones by signing for him, would work in the hearing.⁹ The circuit court then commented that Jones' counsel had told the court “that at least in close proximity he's communicated with the defendant without any interpreter whatsoever.” Jones asserted immediately, through signing, “I believe that we did struggle. I think I need an interpreter with my attorney.” From the circuit court's response, the court apparently took the comment to mean, given the context of the discussion, that Jones was referring to having an interpreter with him and his attorney at the defense...