State v. Jorgensen
| Decision Date | 01 November 2007 |
| Docket Number | No. 2006AP1847-CR.,2006AP1847-CR. |
| Citation | 754 N.W.2d 77,2008 WI 60 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Donald W. JORGENSEN, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs and oral argument by Martha K. Askins, assistant state public defender.
For the plaintiff-respondent the cause was argued by Aaron R. O'Neil, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
This is a review of an unpublished court of appeals' decision,1 which affirmed the decisions of the Shawano County Circuit Court, James R. Habeck, Judge. Jorgensen was convicted of bail jumping, operating while intoxicated (fifth offense), operating with a prohibited alcohol concentration (fifth offense), and operating a motor vehicle after revocation. The circuit court denied Jorgensen's motion for post-conviction relief concluding that defense counsel was not ineffective but instead had made decisions based upon a reasonable trial strategy, and any error that occurred did not negatively impact Jorgensen. The circuit court also concluded that none of the errors constituted plain error. The court of appeals affirmed the circuit court's decision, and as a result, Jorgensen petitioned this court for review. On this appeal, Jorgensen asserts four theories of relief: plain error, in the interest of justice, ineffective assistance of counsel, and structural error. We conclude that the unobjected to errors of the judge and the prosecutor in this case are fundamental, obvious, and substantial; and the State has failed to meet its burden of proof that these errors were harmless. Thus, we conclude that these errors constitute plain error. As a result, we reverse the court of appeals' decision and remand to the circuit court for a new trial.
¶ 2 On November 10, 2004, Donald Jorgensen was scheduled for a plea and sentencing hearing, on a matter unrelated to this appeal, in the circuit court of Shawano County, before Judge James R. Habeck. Assistant District Attorney White (the prosecutor) informed the circuit court that Jorgensen and his attorney, James Chereskin, were having trouble communicating. The prosecutor relayed to the circuit court that she could "smell a strong odor of intoxicants" coming from Jorgensen, and she had requested that a deputy come and do a preliminary breath test. The circuit court ordered a preliminary breath test and informed Jorgensen that a test was necessary in order to determine whether he could understand that day's proceeding. The preliminary breath test was conducted in court and witnessed by both the circuit court judge and the prosecutor.
¶ 3 Deputy Miller reported, in open court and on the record, Jorgensen's preliminary breath test result of 0.12. The judge noted, on the record as well, that Jorgensen had trouble following simple instructions, and the circuit court judge concluded that Jorgensen could not proceed. Jorgensen's previous cash bond was revoked, a new cash bond was ordered for violating the previous bond's no alcohol provision, and the circuit court ordered that Jorgensen be taken to the hospital to determine his blood alcohol concentration and to ensure that he could be safely taken into custody.
¶ 4 The Shawano County Sheriff's Department investigated the matter, and as a result, Jorgensen was charged with bail jumping, which arose out of a no alcohol provision in his previous bond, operating while intoxicated (fifth offense), operating with a prohibited alcohol concentration (fifth offense), and operating a motor vehicle after revocation.
¶ 5 Prior to trial, Attorney James Chereskin, who represented Jorgensen on previous matters, withdrew from representing Jorgensen on charges that arose out of the November 10, 2004, events. Attorney Chereskin cited irreconcilable differences as the reason for withdrawing. Attorney Joan Boyd was subsequently appointed to represent Jorgensen. However, on March 15, 2005, Attorney Boyd moved the circuit court to allow her to withdraw as Jorgensen's counsel due to a conflict of interest. Attorney Boyd explained, "I was in the courtroom on the day that [Jorgensen] was charged with these particular matters, and I don't think it's advisable for me to continue representing him." The circuit court allowed Attorney Boyd to withdraw, and Attorney Gary Dodge (defense counsel) was appointed to represent Jorgensen on this matter.
¶ 6 On the morning of trial, August 31, 2005, Jorgensen stipulated to having four previous convictions for operating while intoxicated. The court explained to Jorgensen that if he did not stipulate to these prior convictions, the State would need to prove them to the jury. As a result and on the advice of his defense counsel, Jorgensen stipulated so as to remove the previous OWI convictions from the jury's consideration.
¶ 7 Also on the morning of trial, Assistant District Attorney White (the prosecutor) informed the circuit court that she wanted to enter the November 10 hearing transcript into evidence. The prosecutor asked the circuit court to take judicial notice of the transcript, and she asked the circuit court judge to read the transcript so as to avoid any accusation that she read it improperly. The defense counsel agreed that the circuit court should read the transcript to the jury, and the circuit court judge agreed to read the transcript.
¶ 8 After opening statements, the prosecutor asked the court to take judicial notice and admit the certified copy of the bail bond that pertained to the bail jumping charge. The defense counsel did not object. The circuit court judge informed the jury of the no alcohol provision and that this bond was in effect on November 10, 2004. During opening statements and again during closing arguments, the defense counsel told the jury that Jorgensen conceded to the bail jumping charge because he admitted to drinking alcohol at a bar near the courthouse.
¶ 9 The prosecutor also moved for the admission of the November 10 hearing transcript. The defense counsel did not object, and the circuit court judge then stated the following to the jury:
What I'm going to read to you is what happened back on November 10 of last year. This was taken down by a court reporter who was here that day. You see the court reporter here in front of you today. So you can understand how that happened.
So this is a part of the proceedings held before James R. Habeck, circuit judge in the circuit court for Shawano County Branch 1 held on November 10, 2004, in the city of Shawano Court House, reported by Nina Bostwick. The appearances that day were Catharine White as the assistant DA, for the state, James Chereskin as attorney appearing on behalf of the defendant, and then we had the defendant, Donald Jorgensen in person. And I'll read off the beginning part when I say they, that would be the person who said a particular topic. If I use the phrase, the Court, that means the judge, who happened to be me that day.
¶ 10 The circuit court judge then read from the November 10 hearing transcript:
In the brief amount of time that I was close to his client, I could smell a strong odor of intoxicants from his client. I called over to the Sheriff's Department to have a deputy sent over with a preliminary breath test device. I'd ask the court to order that Mr. Jorgensen submit to a test.
. . . .
THE COURT: . . . I'm concerned about Mr. Jorgensen's health. So I'm going to revoke the existing bond. Our Shawano County bond, so we're clear, had a no alcohol...
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