State v. Lee, Appeal No. 2019AP221-CR

CourtCourt of Appeals of Wisconsin
Writing for the CourtHRUZ, J.
Citation396 Wis.2d 136,955 N.W.2d 424,2021 WI App 12
Docket NumberAppeal No. 2019AP221-CR
Decision Date20 January 2021
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Nhia LEE, Defendant-Appellant.

396 Wis.2d 136
955 N.W.2d 424
2021 WI App 12

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

Appeal No. 2019AP221-CR

Court of Appeals of Wisconsin.

Oral Argument: October 28, 2020
Opinion Filed: January 20, 2021


On behalf of the defendant-appellant, the cause was submitted on the briefs of and oral argument by Julianne M. Lennon of Law Offices of Attorney Julianne M. Lennon, Wausau.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Timothy M. Barber, assistant attorney general, and Joshua L. Kaul, attorney general. There was oral argument by Timothy M. Barber.

A nonparty brief was filed by Kelli S. Thompson, assistant state public defender, and Katie R. York, state public defender appellate division director of Madison.

Before Stark, P.J., Hruz and Seidl, JJ.

HRUZ, J.

955 N.W.2d 426
396 Wis.2d 140

¶1 Wisconsin law requires that a preliminary hearing be held within ten days of a defendant's initial appearance if the defendant is in custody on a felony charge and bail is set in excess of $500. WIS. STAT. § 970.03(2) (2017-18).1 After Nhia Lee's initial appearance, he was deemed eligible for representation by the Wisconsin State Public Defender's Office (SPD) based on his indigence, but he was held in custody for 101 days without counsel while the SPD searched for an attorney willing and able to represent him. Ultimately, Lee's preliminary hearing was not held until 113 days after his initial appearance.

¶2 During the time Lee was unrepresented, circuit court judges and a court commissioner, on their own motions, repeatedly extended the statutory, ten-day time limit for holding the preliminary hearing. Each time, they found cause to do so based solely on the fact that the SPD was still searching for counsel. After eventually obtaining an SPD-appointed attorney, Lee filed a motion to dismiss the criminal complaint, in which he alleged, among other things, that the circuit court and the commissioner had erroneously exercised their discretion when extending the time limits by failing to consider other relevant factors, including the potential prejudice to Lee arising from the delay. Lee

396 Wis.2d 141

also asserted that, barring a timely SPD appointment, the court was required to appoint counsel for him at county expense. The court ultimately denied Lee's motion.

¶3 We agree with Lee that the circuit court and the court commissioner erroneously exercised their discretion when, on their own motions, they continued to find cause to extend the time limit under WIS. STAT. § 970.03(2) for months based solely upon the fact that the SPD had not yet obtained counsel for Lee. Although the SPD's search for counsel can constitute good cause to delay the preliminary hearing, going forward there must be a more robust consideration of relevant factors than is demonstrated by this record—including the necessity and feasibility of appointing counsel at county expense, especially in instances of prolonged delay. In this case, we conclude that the court's erroneous exercise of discretion occurred no later than at the conclusion of a status hearing that was held nearly two months after Lee's initial appearance. By that time, the court was informed that over 100 potential attorneys had declined to represent Lee, and Lee continued to request that counsel be appointed for him or that the charges against him be dismissed. We reject Lee's assertion, however, that the court was required before that time to appoint counsel for him at county expense under State v. Dean , 163 Wis. 2d 503, 471 N.W.2d 310 (Ct. App. 1991), and a 2018

955 N.W.2d 427

Wisconsin Supreme Court order amending SCR 81.02.

¶4 Because Lee's preliminary hearing was held outside of the ten-day time limit without a proper finding of good cause, the circuit court was deprived of personal jurisdiction over Lee. Accordingly, we reverse the order denying Lee's motion to dismiss and remand

396 Wis.2d 142

with directions for the court to grant the motion and dismiss the criminal complaint without prejudice.

BACKGROUND

¶5 On September 10, 2018, Lee was charged in Marathon County Circuit Court case No. 2018CF1025 with two felony drug offenses and a single count of identity theft.2 Lee made an initial appearance that same day; he was represented by SPD-appointed counsel for purposes of that hearing only, but the matter was continued to the following day because his attorney had not yet spoken to Lee about the charges. The circuit court found probable cause for the charged offenses based upon the contents of the criminal complaint and imposed cash bail in the amount of $25,000.

¶6 The imposition of bail in that amount triggered the statutory obligation to hold a preliminary hearing within ten days of the initial appearance. See WIS. STAT. § 970.03(2). Lee was deemed eligible for SPD representation based on his indigence, and his preliminary hearing was set for September 19, 2018.

¶7 On September 14, 2018, a court commissioner, sua sponte, held what was designated as a "review hearing." The State did not appear at the hearing. Lee appeared without counsel, as the SPD had not yet appointed anyone for him. The commissioner stated its understanding that Lee had been "found eligible for a Public Defender but they are still

396 Wis.2d 143

looking for somebody to represent you." Lee confirmed that he shared that understanding, and he reaffirmed that he wanted an attorney to represent him. The commissioner removed the preliminary hearing from the schedule and found good cause to extend the ten-day time limit for holding the preliminary hearing until another review hearing scheduled for the following week.

¶8 The court commissioner conducted additional weekly review hearings between September 21 and October 12, 2018. At each hearing, the commissioner, sua sponte, considered whether to extend the time limit for holding the preliminary hearing. The State did not appear at any of the hearings, and Lee continued to appear without counsel. At each hearing, the commissioner stated that the SPD was continuing to search for someone to represent Lee. Each time, the commissioner, on its own motion, found good cause to extend the time limit for holding the preliminary hearing. At the October 5 hearing, the commissioner noted that "four people this week ... got attorneys ... but it looks like nothing has changed in your case yet."

¶9 At the October 12, 2018 review hearing, Lee objected that he had been in custody for one month without counsel. The court commissioner responded: "I wish I could tell you what the hold up is, there doesn't seem to be any ... certain length. I've seen people who have been in shorter get attorneys, so I'm not sure what the hold up is on your particular case." The commissioner told Lee that, at some point, the lack of counsel for him "will become a problem." The commissioner informed

955 N.W.2d 428

Lee of the purpose of the preliminary hearing, of his right to have it within ten days of the initial appearance, and that the commissioner had been finding good cause to extend that time

396 Wis.2d 144

limit based upon the SPD's failure to find counsel for him. Upon Lee's further protestations, the commissioner informed Lee that judicial actors could not give him advice about how to proceed. The commissioner suggested that Lee write a letter to Judge LaMont Jacobson, to whom Lee's case had been assigned, expressing his concerns.

¶10 A similar discussion occurred at the October 19, 2018 review hearing. Lee again objected to the amount of time he had been in custody without an attorney, and the court commissioner again advised Lee to write a letter to Judge Jacobson expressing his concerns.3 The commissioner again found good cause to extend the time for holding the preliminary hearing.

¶11 Lee wrote a pro se letter to Judge Jacobson in mid-October, expressing concerns regarding his due process rights as a result of the delay and requesting that his case be dismissed.4 At the October 26, 2018 review hearing, the court commissioner acknowledged that the circuit court had received the letter but had taken no action on it. The commissioner then summarily found good cause to extend the time limit for the preliminary hearing.

¶12 At the November 2, 2018 review hearing, the commissioner again observed that no action had been taken on Lee's letter. Lee objected that he had

396 Wis.2d 145

been "sitting here for this long" without counsel. The commissioner acknowledged it had to "be frustrating to sit there and be waiting" and offered to investigate the status of Lee's letter before the next review hearing. The commissioner again found good cause to extend the time limit for the preliminary hearing based solely on the SPD's failure to locate an...

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1 practice notes
  • State v. Lee, 2019AP221-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • May 24, 2022
    ...N.W.2d 765401 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 t......
1 cases
  • State v. Lee, 2019AP221-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • May 24, 2022
    ...N.W.2d 765401 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 t......

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