State v. Lee, 2019AP221-CR

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtPER CURIAM.
Citation401 Wis.2d 593,973 N.W.2d 764 (Mem),2022 WI 32
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Nhia LEE, Defendant-Appellant-Petitioner.
Docket Number2019AP221-CR
Decision Date24 May 2022

401 Wis.2d 593
973 N.W.2d 764 (Mem)
2022 WI 32

STATE of Wisconsin, Plaintiff-Respondent,
v.
Nhia LEE, Defendant-Appellant-Petitioner.

No. 2019AP221-CR

Supreme Court of Wisconsin.

Oral Argument: December 10, 2021
Opinion Filed: May 24, 2022


For the defendant-appellant-petitioner there were briefs filed by Julianne M. Lennon and the Law Offices of Attorney Julianne M. Lennon. There was an oral argument by Julianne M. Lennon.

For the plaintiff-respondent there was a brief filed by Timothy M. Barber, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Timothy M. Barber.

An amicus curiae brief was filed by Ellen Henak and Henak Law Office, S.C. for the Wisconsin Association of Criminal Defense Lawyers. There was an oral argument by Ellen Henak and Bonnie Hoffman.

An amicus curiae brief was filed by Jerome F. Buting and Buting, Williams & Stilling, S.C. for the National Association of Criminal Defense Lawyers.

An amicus curiae brief was filed by Andrew T. Phillips, Natalie D. Fluker, and Matthew J. Thome and von Briesen & Roper, S.C. for the Wisconsin Counties Association.

An amicus curiae brief was filed by Katie R. York, state public defender, for the Office of the Wisconsin State Public Defender.

REBECCA GRASSL BRADLEY, J., filed a concurring opinion in which ZIEGLER, C.J. and HAGEDORN, JJ., joined. DALLET, J., filed a dissenting opinion in which ANN WALSH BRADLEY, J., joined.

PER CURIAM.

973 N.W.2d 765
401 Wis.2d 594

¶1 Nhia Lee petitioned for review of a decision of the court of appeals, State v. Lee, 2021 WI App 12, 396 Wis. 2d 136, 955 N.W.2d 424, reversing the circuit court's orders denying his motion to dismiss the criminal complaint and remanding with directions to grant the motion and dismiss the criminal complaint without prejudice. After reviewing the record

401 Wis.2d 595

and the briefs, and after hearing oral arguments, we conclude that this matter should be dismissed as improvidently granted.

By the Court. —The review of the decision of the court of appeals is dismissed as improvidently granted.

REBECCA GRASSL BRADLEY, J. (concurring).

¶2 In her dissent, Justice Rebecca Dallet identifies a number of "systemic issues" with the "process for appointing counsel for indigent defendants." Although acknowledging a lack of merit with two of the three issues Lee raises, she nevertheless accuses the court of "fail[ing] him" by dismissing his petition as improvidently granted. Justice Dallet doesn't explain how the court "fail[s]" Lee, considering he would remain incarcerated regardless of this court's disposition of his case.1 Even if one or more of Lee's issues have merit, Justice Dallet "agree[s] with the court of appeals that, consistent with our precedent, the correct remedy for failing to hold a timely preliminary examination is dismissal without prejudice for lack of personal jurisdiction."2 Resolving Lee's case therefore would require nothing more than an opinion from this court agreeing with the court of appeals. There are much better uses of this court's time than repeating work already done correctly by a lower court.

¶3 Justice Dallet seems to suggest Lee's case somehow offers an avenue for taking "transformative steps" to implement policy

973 N.W.2d 766

changes.3 As she sees it, "Lee's appeal provided the court with the chance to highlight the problems with our appointed-counsel system, so all three branches of government can begin

401 Wis.2d 596

working toward solutions."4 That's not part of our case-deciding function. When we grant a petition for review, we resolve issues of law.

¶4 The court's superintending authority, which Justice Dallet would apparently use to effect policy changes she acknowledges would inflict a financial burden on counties, "is ordinarily exercised when a party asserts error by the circuit court causing ‘great and irreparable’ ‘hardship.’ " Koschkee v. Evers, 2018 WI 82, ¶42, 382 Wis. 2d 666, 913 N.W.2d 878 (Rebecca Grassl Bradley, J., concurring/dissenting) (citing Application of Sherper's, Inc., 253 Wis. 224, 226, 33 N.W.2d 178 (1948) ; State ex rel. Wis. State Dep't of Agric. v. Aarons, 248 Wis. 419, 423, 22 N.W.2d 160 (1946) ). There was no error in this case, and we should not transform it (or any other case) into a vehicle for "highlight[ing]" issues that are more properly considered through a rule petition or legislative proposal.5 The principal policy changes for which Justice Dallet advocates are properly considered by the legislature, which possesses the power of the purse. We don't have this power, which is why we should decide cases and leave policymaking to the legislature.

¶5 I am authorized to state that Chief Justice ANNETTE KINGSLAND ZIEGLER and Justice BRIAN HAGEDORN join this concurrence.

REBECCA FRANK DALLET, J. (dissenting).

¶6 The criminal justice system has already failed Nhia Lee twice, and by dismissing his appeal, we fail him as well. First, he was not promptly appointed counsel after being charged with felony drug and identity theft offenses. Second, the circuit court and

401 Wis.2d 597

court commissioners, often over Lee's pro se objections, erroneously exercised their discretion by repeatedly extending the 10-day statutory time limit for holding a preliminary examination solely because the State Public Defender's Office (SPD) had not yet appointed counsel for Lee. See Wis. Stat. § 970.03(2) (requiring a preliminary examination within 10 days of the initial appearance unless the parties stipulate or "on motion and for cause.");1

973 N.W.2d 767

State v. Lee, 2021 WI App 12, ¶¶51–52, 396 Wis. 2d 136, 955 N.W.2d 424. Those extensions resulted in Lee being in custody for 113

401 Wis.2d 598

days before a preliminary examination was held, 101 of which were prior to the appointment of counsel.2

¶7 Now, with no explanation, the court dismisses his appeal as improvidently granted. By doing so, we minimize the important questions Lee's case raises about the efficacy of Wisconsin's process for appointing counsel for indigent defendants, which protects one of a defendant's most important constitutional rights. See Wis. Const. art. 1, § 7 (providing that a criminal defendant "enjoy[s] the right to be heard by himself and counsel."); see also State v. Forbush, 2011 WI 25, ¶43, 332 Wis. 2d 620, 796 N.W.2d 741 (recognizing that "to be effective, [the Article I, Section 7 right to counsel] must include the right to have the expense of counsel for indigent defendants covered by the State."). I write separately to discuss the systemic issues highlighted by Lee's case.

¶8 Before addressing those broader issues, however, I briefly discuss the legal issues Lee raised in this appeal. Section 970.03(2) gives the circuit court discretion to extend the time limit for holding a preliminary examination "on motion and for cause." In State v. Selders, 163 Wis. 2d 607, 472 N.W.2d 526 (Ct. App. 1991), the court of appeals held that a circuit

401 Wis.2d 599

court's discretionary decision to extend the time limit for "cause" must be based on the justification for the extension, the possible prejudice to the opposing party, and, where appropriate, the public interest. See id. at 613-16, 472 N.W.2d 526. Here, the parties agree with the court of appeals that the circuit court and court commissioners erroneously exercised their discretion in finding "cause" to extend the time limit for holding Lee's preliminary examination, because those extensions were based solely on the fact that counsel had not yet been appointed for Lee. See Lee, 396 Wis. 2d 136, ¶¶51–52, 955 N.W.2d 424.

¶9 The parties disagree, though, about what remedy is appropriate. The court of appeals concluded that the circuit court should dismiss the criminal complaint without prejudice. See id., ¶61. Lee argues that the appropriate remedy is dismissal with prejudice. We have repeatedly held, however, that the remedy for failing to hold a timely preliminary examination is dismissal without prejudice for lack of personal jurisdiction. See, e.g., Armstrong v. State, 55 Wis. 2d 282, 285, 198 N.W.2d 357 (1972) ; Crummel v. State, 46 Wis. 2d 348, 356, 174 N.W.2d 517 (1970) ; State ex rel. Klinkiewicz v. Duffy, 35 Wis. 2d 369, 375, 151 N.W.2d 63 (1967). Departing from that precedent would require a "special justification," which Lee does not offer. See Hennessy v. Wells Fargo Bank, N.A., 2022 WI 2, ¶27, 400 Wis. 2d 50, 968 N.W.2d 684. Instead, he argues that the circuit court's failure to hold a timely preliminary examination means the circuit court lost competency. See generally

973 N.W.2d 768

Green Cnty. Dep't of Human Servs. v. H.N., 162 Wis. 2d 635, 656, 469 N.W.2d 845 (1991) (failing...

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