State v. Wickstrom

Decision Date06 March 1984
Docket NumberNo. 83-1500-CR,83-1500-CR
Citation118 Wis.2d 339,348 N.W.2d 183
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. James P. WICKSTROM, Defendant-Appellant. d
CourtWisconsin Court of Appeals

Gerhardt F. Getzin and Getzin & Jannetta, Wausau, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., Douglas Haag, Asst. Atty. Gen., Sp. Prosecutor for Shawano county, for plaintiff-respondent.

Before FOLEY, P.J., and DEAN and CANE, JJ. 1

CANE, Judge.

James P. Wickstrom appeals a judgment convicting him of two counts of violating sec. 946.69(1), Stats., and imposing consecutive sentences of nine months for each conviction. Wickstrom challenges the judgment on three procedural grounds, arguing that (1) the trial court did not have jurisdiction because the attorney general had no statutory authorization to prosecute this case; (2) the trial court erroneously vacated an initial determination that he was indigent; and (3) the complaint was improperly amended. Wickstrom also challenges the judgment, arguing that the state failed to prove he violated sec. 946.69(1) 2 because the offices he claimed to assume were those of a fictitious township and therefore not "public offices" as the statute requires. Alternatively, he argues that sec. 946.69(1) is unconstitutionally vague and overbroad. Finally, Wickstrom argues that the trial court abused its sentencing discretion by relying on improper factors. We conclude that the statute is constitutional. We also conclude that the trial court did not commit any procedural errors, properly interpreted sec. 946.69(1), and considered appropriate sentencing criteria supporting its imposed sentence. The judgment is therefore affirmed.

After being defeated in an election for chairman of the Town of Fairbanks in Shawano County, Wickstrom had a local weekly newspaper print a "Public Notice" of the creation of the "Constitution Township of Tigerton Dells" and of a meeting to elect officers for the Constitution Township. The notice stated that it was "drafted and given by James P. Wickstrom," the "acting clerk" of the Constitution Township. A meeting was held at which Wickstrom participated and was elected town clerk and municipal judge of the Constitution Township.

Wickstrom subsequently took a number of actions indicating that he assumed to act as a public officer. His actions included having published in a local paper a "Constitution Township" ordinance and an application for a liquor license; "issuing" a liquor, a bartender or "operator's," and a cigarette license; filing or attempting to file, with various legitimate local and state offices, documents captioned "Official Oath of Municipal Judge," "Official Municipal Court Bond," and "Constitution Township of Tigerton Dells Land Title Document," each indicating that Wickstrom was a municipal judge or town clerk. Wickstrom also sent correspondence to various legitimate public officials using the title "town clerk" and threatened the Shawano county clerk with federal court action if she did not cooperate with his demand for official printed ballots.

Many of Wickstrom's actions were taken after the attorney general issued his opinion, reported in a Shawano newspaper, that the Constitution Township was not organized pursuant to the specific statutory procedures provided for creating new towns, that the Constitution Township was fictitious, and that the actions taken by its purported officers had no legal effect. Some of the documents Wickstrom submitted for filing were rejected for this reason.

The original complaint charged both Wickstrom and Donald Minniecheske with violating sec. 946.69(1). Eventually, the trial court appointed three assistant attorneys general as special prosecutors in this matter at the request of the Shawano County district attorney pursuant to sec. 59.44(2), Stats. The trial court allowed an amended complaint that was filed a week before trial. It severed Minniecheske as a co-defendant and charged two counts against Wickstrom, one each for assuming to act as a town clerk and as a municipal judge.

An assistant state public defender initially determined Wickstrom to be indigent, based on Wickstrom's affidavit. Subsequently, the public defender obtained a court review of Wickstrom's indigency determination. The trial court later reversed the determination of indigency and Wickstrom obtained private representation. At one point in the pretrial proceedings, Wickstrom told the court that he had plans to set up townships in other states. At another, Minniecheske served the first judge presiding in this case a "subpoena" for a "Citizens Grand Jury." Wickstrom signed the document using the title "Judge."

A jury found Wickstrom guilty on both counts, and a judgment of conviction was entered. Wickstrom received the maximum nine-month sentence on each count, the sentences to be served consecutively.

We will first consider Wickstrom's procedural arguments. After addressing his arguments regarding the construction and constitutionality of sec. 946.69(1), we will consider his challenge to the sentence.

AUTHORITY OF PROSECUTORS

Wickstrom argues that the assistant attorneys general were without authority to prosecute this action and that the trial court therefore lacked jurisdiction. He notes that unless the power to prosecute a specific action is granted by statute, the attorney general is powerless to act. See In re Sharp, 63 Wis.2d 254, 261, 217 N.W.2d 258, 262 (1974).

The trial court properly denied Wickstrom's motion to dismiss for lack of jurisdiction. This was not a case prosecuted by the attorney general or the Justice Department. The trial court, on the motion of the district attorney who initiated Wickstrom's prosecution, appointed three assistant attorneys general as special prosecutors under sec. 59.44(2), Stats. That subsection provides that a judge may, upon application of the district attorney, "appoint counsel to assist the district attorney in the prosecution of persons charged with a crime." Nothing in the statute precludes appointing persons who are employed as assistant attorneys general. The three special prosecutors were appointed to represent the district attorney's office. They acted only with the authority of the district attorney. The trial court did not appoint the attorney general or the Department of Justice to prosecute this matter.

INDIGENCY QUESTION

Since Wickstrom was able to obtain counsel to represent him at trial, the alleged errors in the trial court's determination that he was ineligible for state public defender representation have become moot questions. See Ziemann v. Village of North Hudson, 102 Wis.2d 705, 712, 307 N.W.2d 236, 240 (1981). This court generally will not render a decision on a moot issue because it would be advisory and would not determine an existing controversy. Hahner v. Board of Education, 89 Wis.2d 180, 185-86, 278 N.W.2d 474, 476 (Ct.App.1979). Where the issue is of great importance or the situation involved arises so frequently that a definitive decision is essential to guide trial courts, review may be had despite mootness. Ziemann, 102 Wis.2d at 712, 307 N.W.2d at 240. The issue of whether a defendant, whose appointed counsel seeks review of an initial indigency determination, is entitled to separate representation for purposes of that review meets these criteria. We therefore address this issue. We will not consider the other issues Wickstrom raises concerning the trial court's review of the indigency determination.

Wickstrom argues that, after an initial determination of indigency, it was a conflict of interest for the assistant state public defender to support review of the indigency determination. Wickstrom recognizes that sec. 977.07(3), Stats., permits the state public defender to move for review of an initial determination of indigency. He argues, however, that the alleged conflict deprived him of his right to be represented by an attorney during the indigency proceedings and that the state public defender should have appointed another attorney to represent him at that point. Wickstrom also argues that it was a conflict of interest for the same assistant state public defender to represent both Wickstrom and co-defendant Minniecheske.

An accused is entitled to counsel at any critical stage of the prosecution. McMillian v. State, 83 Wis.2d 239, 244, 265 N.W.2d 553, 556 (1978). A pretrial proceeding is a critical stage if the accused's right to meaningfully cross-examine adverse witnesses and to have effective counsel at the trial itself require the presence of counsel at the proceeding. Id. "The fundamental purpose of the right to counsel is to insure reliable guilt determination." Brown v. State, 24 Wis.2d 491, 511, 129 N.W.2d 175, 184 (1964), reh'g denied, 24 Wis.2d 491, 131 N.W.2d 169 (1965), cert. denied, 379 U.S. 1004, 85 S.Ct. 730, 13 L.Ed.2d 706 (1965), reh'g denied, 380 U.S. 959, 85 S.Ct. 1094, 13 L.Ed.2d 977 (1965).

Wickstrom had no right to counsel at the hearing on review of the indigency determination. The purpose of the hearing was to determine if Wickstrom was indigent. The court's review of an initial determination does not change the nature of the proceeding. No witness testified concerning Wickstrom's guilt. The indigency proceeding was not a critical stage in the prosecution at which Wickstrom was entitled to counsel. This disposes of his challenges to the trial court's determination on both allegations of conflict of interest.

AMENDMENT OF COMPLAINT

Wickstrom argues that the trial court's order allowing the complaint to be amended was an abuse of discretion because it was made without giving him notice or an opportunity to be heard on the amendment, because he was allowed no time to file motions challenging the sufficiency of the amended complaint, and because the amendment was prejudicial to him since it charged two counts instead...

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