State v. Marcelle

• Docket Number: 2022AP888-CR
• Decision Date: 24 January 2024
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Kris M. Marcelle, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

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State of Wisconsin, Plaintiff-Respondent,
v.
Kris M. Marcelle, Defendant-Appellant.

No. 2022AP888-CR

Court of Appeals of Wisconsin, District II

January 24, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5 (2021-22).

APPEAL from a judgment and an order of the circuit court for Sheboygan County: No. 2017CF442, REBECCA L. PERSICK, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

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PER CURIAM.

¶1 Kris M. Marcelle appeals a judgment of conviction, entered upon his no-contest pleas, for second-degree reckless injury, false imprisonment, intimidation of a victim, and strangulation. He argues the circuit court erroneously exercised its discretion by denying his last-minute request for substitution of counsel just days before the scheduled trial. He also argues he is entitled to plea withdrawal because his pleas were rendered involuntary as a result of the ineffective assistance of counsel he received in the preparation of his case. We reject these arguments and affirm.

BACKGROUND

¶2 Marcelle was charged with eight crimes stemming from his pregnant girlfriend's allegations that Marcelle had committed acts of physical violence against her over the course of four days in July 2017. His trial was ultimately scheduled for three days, commencing on July 24, 2018.

¶3 At a hearing six days before trial, Marcelle expressed his desire to fire his appointed attorney. Applying the factors discussed in State v. Boyd, 2011 WI.App. 25, 331 Wis.2d 697, 797 N.W.2d 546, the circuit court denied Marcelle's request. Marcelle subsequently pled no contest to the four offenses described above pursuant to a plea agreement with the State. The remaining charges were dismissed and read in. The State agreed to recommend a total sentence of ten years' initial confinement and thirteen years' extended supervision, with the defense free to argue. The court imposed consecutive sentences totaling fifteen years' initial confinement and sixteen years' extended supervision.

¶4 Marcelle sought postconviction relief, asserting the circuit court erred by denying his request for a new attorney and that he had received ineffective assistance of counsel in connection with the entry of his pleas.

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Following a Machner^[1] hearing and further briefing, the court denied the postconviction motion. As relevant here, it concluded it had properly exercised its discretion when it refused to grant Marcelle's request for substitute counsel. It also rejected Marcelle's contention that he was coerced into entering his pleas by his attorney's lack of preparation for trial. Marcelle now appeals.

DISCUSSION

¶5 We first address Marcelle's argument that the circuit court erred by denying his request for new counsel.^[2] We review a court's denial of substitute counsel for an erroneous exercise of discretion. State v. Jones, 2010 WI 72, ¶24, 326 Wis.2d 380, 797 N.W.2d 378. Our review encompasses a number of factors, including the adequacy of the circuit court's inquiry into the defendant's complaint, the timeliness of the motion, and "whether the alleged conflict between the defendant and the attorney was so great that it likely resulted in a total lack of communication that prevented an adequate defense and frustrated a fair presentation of the case." Id., ¶25 (citation omitted).

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¶6 We conclude the circuit court did not erroneously exercise its discretion. The court permitted Marcelle to make a lengthy statement regarding the reasons for his substitution-of-counsel request. Marcelle stated that he disagreed with his attorney about trial strategy, he did not believe his attorney was prepared for trial, and defense counsel had been uncommunicative. Marcelle was skeptical that his attorney had his "best interest at heart," and he believed defense counsel was "trying to force [him] to take a deal."

¶7 The State opposed an adjournment, noting the late timing of the request and that the victim objected to a delay. The State pointed out that one of its witnesses was in the military and had been granted a special approval to be present on the scheduled trial dates, with the flight already paid for.

¶8 The circuit court found that a new attorney would require substantial time to prepare Marcelle's defense to the serious felony charges. Given the court's calendar, a new trial would not be expected to occur until the following spring. The court also noted that Marcelle's substitution-of-counsel request came close to the trial date, when an adjournment would be extremely inconvenient.

¶9 The court nonetheless observed that a "bona fide conflict" between Marcelle and his attorney could warrant the delay. It found, however, that no such conflict existed: Marcelle was primarily upset with his attorney's "honest assessment of the case." When Marcelle interjected to reiterate that he did not believe his counsel was prepared for trial, the court inquired of counsel whether that was true. Defense counsel responded that the only holdup was their difficulty communicating; counsel stated he had reviewed all of the discovery and had given all but perhaps a few recently disclosed pages of it to Marcelle.

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¶10 Marcelle faults the circuit court for failing to consider, among other things, whether Marcelle had "any fair opportunity to assess his attorney or even make the request" for substitution of counsel prior to the time he did. While those might be relevant considerations, they do not alter...