Withdrawal of a guilty plea on the grounds of ineffective representation by trial counsel is discussed. State v. Rock,
92 Wis. 2d 554,
285 N.W.2d 739 (1979).
A defendant's request on the morning of trial to represent himself was properly denied as untimely. Hamiel v. State,
92 Wis. 2d 656,
285 N.W.2d 639 (1979).
A prerequisite to a claim on appeal of ineffective trial representation is preservation of trial counsel's testimony at a postconviction hearing in which the representation is challenged. State v. Machner,
92 Wis. 2d 797,
285 N.W.2d 905 (Ct. App. 1979).
The trial court did not err in refusing the defendant's request on the 2nd day of trial to withdraw a waiver of the right to counsel. Self-representation is discussed. Pickens v. State,
96 Wis. 2d 549,
292 N.W.2d 601 (1980).
The right to counsel did not preclude incarceration for a second operating while intoxicated conviction when the defendant was not represented by counsel in proceedings leading to the first conviction, since the first offense was a civil forfeiture case. State v. Novak,
107 Wis. 2d 31,
318 N.W.2d 364 (1982).
Counsel was ineffective for failing to raise the heat-of-passion defense in a murder case when a wife who had been maltreated during a 23-year marriage intentionally killed her husband while he lay sleeping. State v. Felton,
110 Wis. 2d 485,
329 N.W.2d 161 (1983).
A defendant's uncorroborated allegations will not support a claim of ineffective representation when counsel is unavailable to rebut the claim of ineffectiveness. State v. Lukasik,
115 Wis. 2d 134,
340 N.W.2d 62 (Ct. App. 1983).
Effective assistance of counsel was denied when the defense attorney did not properly inform the client of the personal right to accept a plea offer. State v. Ludwig,
124 Wis. 2d 600,
369 N.W.2d 722 (1985).
When a trial court fails to make adequate inquiry into a defendant's last-minute request to replace his or her attorney, the right to counsel is adequately protected by a retrospective hearing at which the defendant may present his or her own testimony. State v. Lomax,
146 Wis. 2d 356,
432 N.W.2d 89 (1988).
Defense counsel's absence at the return of the jury verdict without the defendant's consent and the failure to poll the jury were grounds for automatic reversal. State v. Behnke,
155 Wis. 2d 796,
456 N.W.2d 610 (1990).
When a defendant accepts counsel, the decision to assert or waive a constitutional right is delegated to the attorney. The failure of the defendant to object to the attorney's waiver, is waiver. State v. Wilkens,
159 Wis. 2d 618,
465 N.W.2d 206 (Ct. App. 1990).
There is a two-prong test for ineffective counsel: 1) trial counsel was ineffective; and 2) the defense was prejudiced so that absent error the result would have been different. State v. Wilkens,
159 Wis. 2d 618,
465 N.W.2d 206 (Ct. App. 1990).
A court may disqualify the defendant's chosen counsel over the defendant's objection and waiver of the right to conflict-free representation when actual or a serious potential for a conflict of interest exists. State v. Miller,
160 Wis. 2d 646,
467 N.W.2d 118 (1991).
A determination of indigency by the public defender under s. 977.07 is not the end of the court 's inquiry into the need to appoint counsel. State v. Dean,
163 Wis. 2d 503,
471 N.W.2d 310 (Ct. App. 1991).
To bring a claim of ineffective appellate counsel, defendant must petition the court that heard the appeal for a writ of habeas corpus. State v. Knight,
168 Wis. 2d 509,
484 N.W.2d 540 (1992).
The question of ineffective counsel is whether there is a reasonable probability that a jury viewing the evidence untainted by counsel's errors would have had a reasonable doubt respecting guilt. State v. Glass,
170 Wis. 2d 146,
488 N.W.2d 432 (Ct. App. 1992).
A defense attorney's ex parte petition to withdraw was improperly granted. A minimal due process hearing was required. State v. Batista,
171 Wis. 2d 690,
492 N.W.2d 354 (Ct. App. 1992).
Absent a clear waiver of counsel and a clear demonstration of a defendant's ability to proceed
pro se, courts are advised to mandate full representation by counsel. State v. Haste,
175 Wis. 2d 1, N.W.2d (Ct. App. 1993).
The proper test of attorney performance is reasonableness under prevailing professional norms. Counsel is not required to have a total and complete knowledge of all criminal law, no matter how obscure. State v. Hubert,
181 Wis. 2d 333,
510 N.W.2d 799 (Ct. App. 1993).
Appellate counsel's closing of a file because of no merit without the defendant knowing of the right to disagree and compel a no merit report under s. 809.32 is ineffective assistance of counsel. A defendant must be informed of the right to appeal and to a no merit report, but need not be informed orally. State ex rel. Flores v. State,
183 Wis. 2d 587,
516 N.W.2d 362 (1994).
An appellate defendant represented by counsel has no right to have a
pro se brief considered by the court when counsel has submitted a brief. State v. Debra A. E.
188 Wis. 2d 111,
523 N.W.2d 727 (Ct. App. 1994).
The decision to poll the jury may be delegated to counsel. Waiver by counsel without showing that the waiver was knowingly and voluntarily made by the defendant did not violate a constitutional right. State v. Jackson,
188 Wis. 2d 537,
525 N.W.2d 165 (Ct. App. 1994).
If the same counsel represents co-defendants, the trial court must conduct an inquiry to determine whether the defendant waived the right to separate counsel. When an actual conflict of interest is found, specific prejudice need not be shown. If no inquiry is made by the trial court, the court of appeals will examine the record, reversing if an actual conflict of interest is found. State v. Dadas,
190 Wis. 2d 339,
526 N.W.2d 818 (Ct. App. 1994).
The prejudice prong of the test for ineffective counsel was met when counsel failed to insure that a defense witness would appear without shackles. State v. Tatum,
191 Wis. 2d 548,
530 N.W.2d 407 (Ct. App. 1995).
A suspect's reference to an attorney who had previously or is presently representing the suspect in another matter is not a request for counsel requiring the cessation of questioning. State v. Jones,
192 Wis. 2d 78,
532 N.W.2d 79 (1995).
The right to counsel and right to remain silent are the defendant's. An attorney, not requested by the defendant, could not compel the police to end questioning by stating that no questioning was to take place outside his presence. State v. Jones,
192 Wis. 2d 78,
532 N.W.2d 79 (1995).
A defendant must assert the right to counsel in a timely manner. However, no waiver of counsel is presumed and a waiver must be clear and unequivocal. The state has the burden of overcoming the presumption. Mere inconvenience to the court is insufficient to deny the right to counsel. State v. Verdone,
195 Wis. 2d 476,
536 N.W.2d 172 (Ct. App. 1995),
94-3369.
Withdrawal of a guilty plea after sentencing may be based on ineffective assistance of counsel. Erroneous advice regarding parole eligibility can form the basis for ineffective assistance. State v. Bentley,
195 Wis. 2d 580,
536 N.W.2d 202 (Ct. App. 1995),
94-3310.
A trial court's failure to conduct a hearing to determine if a defendant's waiver of counsel is knowingly made is harmless error absent a showing of prejudice. A trial court need not make a finding that a defendant is competent to proceed without counsel unless there is doubt that the defendant is competent to stand trial. State v. Kessig,
199 Wis. 2d 397,
544 N.W.2d 605 (Ct. App. 1995),
95-1938.
In certain situations a court may find that a defendant has waived counsel without having expressly done so. Waiver was found when the defendant constantly refused to cooperate with counsel while refusing to waive the right and when the court found the defendant's intent was to "delay, obfuscate and compound the process of justice." State v. Cummings,
199 Wis. 2d 721,
516 N.W.2d 406 (1996),
93-2445.
The test for ineffective assistance of counsel under the state constitution is the same as under the federal constitution. In such cases the burden is placed on the defendant to show that the deficient performance of counsel prejudiced the defense. State v. Sanchez,
201 Wis. 2d 219,
548 N.W.2d 69 (1996),
94-0208.
Read together, s. 809.32 (4) and 977.05 (4) (j) create a statutory, but not constitutional, right to counsel in petitions for review and cases before any court, provided counsel does not determine the appeal to be without merit. When counsel fails to timely file a petition for review, the defendant may petition for a writ of habeas corpus and the supreme court has the power to allow late filing. Schmelzer v. Murphy,
201 Wis. 2d 246,
548 N.W.2d 45 (1996),
95-1096.
Whether counsel is deficient by not requesting the polling of individual jurors upon the return of a verdict depends on all the circumstances, not on whether counsel explained to the defendant the right to an individual polling. State v. Yang,
201 Wis. 2d 725,
549 N.W.2d 769 (Ct. App. 1996),
95-0583.
To establish ineffective assistance of counsel based on a conflict of interest there must be an actual conflict that adversely affected the attorney's performance. Simultaneous representation of a criminal defendant and a witness in that case in an unrelated civil case resulted in an actual conflict. State v. Street,
202 Wis. 2d 533,
551 N.W.2d 830 (Ct. App. 1996),
95-2242.
Counsel is not ineffective when the general theory of the defense is discussed with the defendant, and when based on that theory, counsel makes a strategic decision not to request a lesser-included instruction because it would be inconsistent with or harmful to the theory of the defense. State v. Eckert,
203 Wis. 2d 497,
553 N.W.2d 539 (Ct. App. 1996),
95-1877.
When a prosecutor elicits testimony that can only be contradicted by defense counsel or the defendant, if defense counsel could not reasonably foresee the dilemma and the defendant has decided not to testify, defense counsel must be permitted to testify. State v. Foy,
206 Wis. 2d 629,
557 N.W.2d 494 (Ct. App. 1996),
96-0658.
Counsel was deficient when it failed to object at sentencing to a prosecutor's sentence recommendation after agreeing in a plea bargain to make no recommendation. The defendant was automatically prejudiced when the prosecutor materially and substantially breached the plea agreement. State v. Smith,
207 Wis. 2d 259,
558 N.W.2d 379 (1997),
94-3364.
Whenever a defendant seeks to proceed
pro se, a colloquy to determine whether the waiver is knowing and voluntary is required. The colloquy is to ensure that the defendant: 1) made a deliberate choice to proceed without counsel, 2) was aware of the difficulties and disadvantages of self-representation, 3) was aware of the seriousness of the charge or charges, and 4) was aware of the general range of the possible penalties. When there is no colloquy and post-conviction relief is requested, the court must hold an evidentiary hearing on the waiver and the state must prove by clear and convincing evidence that the waiver was knowingly made for the conviction to stand. State v. Klessig,
211 Wis. 2d 194,
564 N.W.2d 716 (1997),
95-1938.
There is a higher standard for determining competency to represent oneself than for competency to stand trial. The standard is based on the defendant's education, literacy, fluency in English, and any disability that may affect the ability to communicate a defense. When there is no pretrial finding of competency to proceed and post-conviction relief is sought, the court must determine if it can make a meaningful
nunc pro tunc inquiry. If it cannot, or it finds that it can but the defendant was not competent, a new trial is required. State v. Klessig,
211 Wis. 2d 194,
564 N.W.2d 716 (1997),
95-1938.
It was ineffective assistance of counsel to advise a defendant to go to trial and lie rather than agree to a plea agreement. Despite the defendant's participation in fraud on the court, the defendant was entitled to vacation of his sentence and a return to pretrial status, although offering the prior proposed plea agreement was not required. State v. Fritz,
212 Wis. 2d 284,
569 N.W.2d 48 (Ct. App. 1997),
96-1905.
When a defendant proves ineffective assistance of counsel occurred at the pretrial stage, the defendant must be granted a new trial. State v. Lentowski,
212 Wis. 2d 849,
569 N.W.2d 758 (Ct. App. 1997),
96-2597.
An in-court identification subsequent to a lineup in violation of an accused's right to counsel is admissible only if the state carries the burden of showing that the in-court identification was based on observations of the suspect other than the lineup. State v. McMorris,
213 Wis. 2d 156,
570 N.W.2d 384 (1997),
95-2052.
Having disputed relevant portions of the presentence investigation at the sentencing hearing, it was trial counsel's duty to see that the disputes were fully resolved by a proper hearing. Failure to do so constituted ineffective assistance of counsel. State v. Anderson,
222 Wis. 2d 403,
588 N.W.2d 75 (Ct. App. 1998),
97-3070.
Whether a defendant's motion for substitution of counsel, with an accompanying request for a continuation, should be granted depends on the balancing of several interests. State v. Wanta,
224 Wis. 2d 679,
592 N.W.2d 645 (Ct. App. 1999),
98-0318.
A defendant's prejudicial deprivation of appellate counsel, be it the fault of the attorney or the appellate court, is properly remedied by a petition for habeas corpus in the supreme court. State ex rel. Fuentes v. Court of Appeals,
225 Wis. 2d 446,
593 N.W.2d 48 (1999),
98-1534.
A defendant who alleges counsel was ineffective by failing to take certain steps must show with specificity what the action, if taken, would have revealed and how the action would have affected the outcome. State v. Byrge,
225 Wis. 2d 702,
594 N.W.2d 388 (Ct. App. 1999),
97-3217.
When defense counsel has appeared for and represented the state in the same case in which he or she later represents the defendant and no objection was made at trial, to prove a violation of the right to effective counsel, the defendant must show that counsel converted a potential conflict of interest into an actual conflict by knowingly failing to disclose the attorney's former prosecution of the defendant or representing the defendant in a manner that adversely affected the defendant's interests. State v. Love,
227 Wis. 2d 60,
594 N.W.2d 806 (1999),
97-2336. See also State v. Kalk,
2000 WI App 62,
234 Wis. 2d 98,
608 N.W.2d 98,
99-1164.
There is a distinction between the consequences on appeal of a trial court error and the consequences of that same error when it is raised in an ineffective-assistance-of-counsel context. The fact that a preserved error could lead to automatic reversal does not mean the same result will be reached when the error was waived. State v. Erickson,
227 Wis. 2d 758,
596 N.W.2d 749 (1999),
98-0273.
The defendant's assertion of the 6th amendment right to counsel was evident during interrogation when he asked whether the police officer thought he should have an attorney and if he could call a person known to the officer to be a criminal defense lawyer. State v. Hornung,
229 Wis. 2d 469,
600 N.W.2d 264 (Ct. App. 1999),
99-0300.
Inherent in a defendant's choice to proceed pro se is the risk, which the defendant knowingly assumes, that a defense not known to him or her will not be presented during trial. State v. Clutter,
230 Wis. 2d 472,
602 N.W.2d 324 (Ct. App. 1999),
99-0705.
A defendant has a substantive due process right to enforce a plea agreement after the plea has been entered. Defense counsel's failure to inform defendant of that right or to pursue enforcement of the agreement constituted ineffective assistance of counsel. State v. Scott,
230 Wis. 2d 643,
602 N.W.2d 926 (Ct. App. 1999),
98-2109.
The lack of legal expertise is an impermissible basis on which to deny a request to represent oneself. State v. Oswald,
2000 WI App 3,
232 Wis. 2d 103, 606 N.W.2d. 238,
97-1219.
When a person who has been formally charged with a crime has retained counsel to represent him or her on that charge and the attorney has informed police of the representation and that they are not to question the accused, the accused need not specifically "invoke" the right to counsel. In that case, police must assume that the accused does not intend to waive the right to counsel and may not question the accused in the absence of the attorney. State v. Dagnall,
2000 WI 82,
236 Wis. 2d 339,
612 N.W.2d 680,
98-2746. See also State v. Forbush,
2011 WI 25,
332 Wis. 2d 620,
796 N.W.2d 741,
08-3007. See also State v. Delebreau,
2014 WI App 21,
352 Wis. 2d 647,
843 N.W.2d 441,
13-1108.
A defendant's unusual conduct or beliefs do not necessarily establish incompetence for purposes of self-representation. Although a defendant may exhibit beliefs that are out of the ordinary and make references that may antagonize jurors, that does not reflect a mental defect that prevents self-representation. State v. Ruszkiewicz,
2000 WI App 125,
237 Wis. 2d 441,
613 N.W.2d 893,
99-1198.
Except when charges have been filed in a closely-related case derived from the same factual predicate, the 6th amendment right to counsel is offense specific and attaches to a particular offense only after adversary proceedings are commenced. The 6th amendment does not not prohibit the interrogation of a defendant in regard to a murder in the absence of counsel retained in a bail jumping case. State v. Badker,
2001 WI App 27,
240 Wis. 2d 460,
623 N.W.2d 142,
99-2943.
In making its separate determination of whether a defendant is indigent for purposes of court-appointed counsel, the trial court should consider federal poverty guidelines. If a defendant has no assets and an income well below the poverty level, the trial court should set forth why it determined that the defendant could afford counsel. State v. Nieves-Gonzales, 2001 WI App. 90,
242 Wis. 2d 782,
625 N.W.2d 913,
00-2138.
An indigent sexually violent person is constitutionally entitled to assistance of counsel in bringing a first appeal as of right from a denial of his or her petition for supervised release. State ex rel. Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, 99-3354.
There was ineffective assistance of counsel when the notice of appeal for the denial of a ch. 980 petition for supervised release was filed one day late in circuit court. Under the U.S. Supreme Court's decisions in
Douglas v. California,
372 U.S. 353 (1963) and
Anders v. California,
386 U.S. 738 (1967) the court of appeals could not conduct an independent review for error when the individual lacked requested representation.
State ex rel. Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, 99-3354.
A reviewing court is not required to view defense counsel's subjective testimony as dispositive of an ineffective assistance claim. The testimony is simply evidence to be considered along with other evidence in the record that a court will examine in assessing counsel's overall performance. State v. Kimbrough,
2001 WI App 138,
246 Wis. 2d 648,
630 N.W.2d 752,
00-2133.
Forfeiture of the right to counsel cannot occur simply because the effect of the defendant's conduct is to frustrate the orderly and efficient progression of the case. The defendant must also have the purpose of causing that effect. Forfeiture, by action or conduct, is subject to the same rules as when a defendant informs the court that he or she wishes to proceed without counsel, and the court must determine whether the defendant is competent to proceed without an attorney. State v. Coleman,
2002 WI App 100,
253 Wis. 2d 693,
644 N.W.2d 283,
01-2201.
For a knowing and voluntary waiver of counsel on direct appeal, the defendant must be aware of: 1) the rights to an appeal, to the assistance of counsel for the appeal, and to opt for a no-merit report; 2) the dangers and disadvantages of proceeding pro se; and 3) the possibility that if appointed counsel is permitted to withdraw, successor counsel may not be appointed. The necessary colloquy may be accomplished by written communications with the defendant, initiated either by the court or by counsel seeking to withdraw. State v. Thornton,
2002 WI App 294,
259 Wis. 2d 157,
656 N.W.2d 45,
01-0726.
Opening a letter marked "Legal Papers" outside of an inmate's presence may have violated an administrative rule, but it was not a violation of the 6th amendment right to counsel. For the right to counsel to have an arguable application, there must, as a threshold matter, be some evidence that the documents in the envelope were communications with an attorney. State v. Steffes,
2003 WI App 55,
260 Wis. 2d 841,
659 N.W.2d 445,
02-1300.
When in closing argument counsel concedes guilt on a lesser count in a multiple-count case, in light of overwhelming evidence on that count and in an effort to gain credibility and win acquittal on the other charges, the concession is a reasonable tactical decision and counsel is not deemed to have been constitutionally ineffective by admitting a client's guilt contrary to the client's plea of not guilty. State v. Gordon,
2003 WI 69,
262 Wis. 2d 380,
663 N.W.2d 765,
01-1679.
When a court finds numerous deficiencies in a counsel's performance, it need not rely on the prejudicial effect of a single deficiency if, taken together, the deficiencies establish cumulative prejudice. Whether the aggregated errors by counsel will be enough to meet the
Strickland prejudice requirement depends upon the totality of the circumstances at trial, not the totality of the representation provided to the defendant. State v. Thiel,
2003 WI 111,
264 Wis. 2d 571,
665 N.W.2d 305,
01-1589.
Under
Dean a trial court is only obligated to advise a defendant of the right to counsel. The trial court is not required to conduct a colloquy that includes specific advice to a defendant that the right to appointed counsel is broader than the right to counsel provided by the state public defender and includes the right to counsel appointed by the court and paid for by the county. State v. Drexler,
2003 WI App 169,
266 Wis. 2d 438,
669 N.W.2d 182,
02-1313.
No law requires that a motion to withdraw be filed any time an attorney appointed by the public defender terminates his or her postconviction/appellate representation of a defendant. Counsel for the defendant did not render ineffective assistance by closing his file without first obtaining court permission to withdraw or otherwise seeking a contemporaneous judicial determination that his client had knowingly waived either the right to appeal or the right to counsel. Ford v. Holm,
2004 WI App 22,
269 Wis. 2d 810,
676 N.W.2d 500,
02-1828.
An attorney may not substitute narrative questioning for the traditional question and answer format unless counsel knows that the client intends to testify falsely. Absent the most extraordinary circumstances, such knowledge must be based on the client's expressed admission of intent to testify untruthfully. While the defendant's admission need not be phrased in magic words, it must be unambiguous and directly made to the attorney. State v. McDowell,
2004 WI 70,
272 Wis. 2d 488,
681 N.W.2d 500,
02-1203.
When a defendant informs counsel of the intention to testify falsely, the attorney's first duty shall be to attempt to dissuade the client from the unlawful course of conduct. The attorney should then consider moving to withdraw from the case. If the motion to withdraw is denied and the defendant insists on committing perjury, counsel should proceed with the narrative form of questioning, advising the defendant beforehand of what that entails and informing opposing counsel and the circuit court of the change of questioning style prior to use of the narrative. State v. McDowell,
2004 WI 70,
272 Wis. 2d 488,
681 N.W.2d 500,
02-1203.
An alleged violation of the requirements of
Klessig, 211 Wis. 2d 194, can form the basis of a collateral attack as long as the defendant makes a prima facie showing that he or she did not knowingly, intelligently, and voluntarily waive his or her constitutional right to counsel, which shifts the burden to prove that the defendant validly waived his or her right to counsel to the state. The state may elicit testimony from the defendant at an evidentiary hearing in an attempt to meet its burden and, in turn, the defendant may not raise the 5th amendment privilege against testifying. State v. Ernst,
2005 WI 107,
283 Wis. 2d 300,
699 N.W.2d 92,
03-1728.
When a defendant seeks to proceed pro se, the circuit court undertakes a 2-part inquiry, ensuring that the defendant: 1) has knowingly, intelligently, and voluntarily waived the right to counsel; and 2) is competent to proceed pro se. The record must demonstrate an identifiable problem or disability that may prevent a defendant from making a meaningful defense. The circuit court need not always make an express finding as to which specific problem or disability prevented a defendant from being able to meaningfully represent himself or herself. State v. Marquardt,
2005 WI 157,
286 Wis. 2d 204,
705 N.W.2d 878,
04-1609.
A deaf defendant who was shackled during trial and sentencing had the burden to show that he in fact was unable to communicate, not that he theoretically might have had such difficulty. State v. Russ,
2006 WI App 9,
289 Wis. 2d 65,
709 N.W.2d 483,
04-2869.
A defendant's constitutional right to effective representation for the purpose of exercising the right to directly appeal a conviction did not require postconviction counsel to offer the defendant the option of a "partial no-merit" report on any potential issues remaining after the defendant declined for strategic reasons to pursue an issue having arguable merit. The U.S. Constitution requires only that "an indigent's appeal will be resolved in a way that is related to the merit of that appeal." Ford v. Holm,
2006 WI App 176,
296 Wis. 2d 119,
722 N.W. 2d 609,
02-1828.
While courts sometimes can override a defendant's choice of counsel when deemed necessary, nothing requires them to do so. Requiring a court to disqualify an attorney because of a conflict of interest would infringe upon the defendant's right to retain counsel of his choice and could leave the accused with the impression that the legal system had conspired against him or her. State v. Demmerly,
2006 WI App 181,
296 Wis. 2d 153,
722 N.W. 2d 585,
05-0181.
Generally, a defendant who validly waives the right to conflict-free representation also waives the right to claim ineffective assistance of counsel based on the conflict, although there may be instances in which counsel's performance is deficient and unreasonably so even in light of the waived conflict of interest. State v. Demmerly,
2006 WI App 181,
296 Wis. 2d 153,
722 N.W. 2d 585,
05-0181.
It is recommended, if not required, that circuit courts take certain steps to determine whether a defendant has forfeited the right to counsel: 1) provide explicit warnings that, if the defendant persists in specific conduct, the court will find that the right to counsel has been forfeited; 2) engage in a colloquy indicating that the defendant has been made aware of the difficulties and dangers inherent in self-representation; 3) make a clear ruling when the court deems the right to counsel to have been forfeited; and 4) make factual findings to support the court's ruling. State v. McMorris,
2007 WI App 231,
306 Wis. 2d 79,
742 N.W.2d 322,
06-0772.
It would be unreasonable to require a circuit court to engage in a colloquy to ensure that the defendant deliberately relinquished the right to counsel in circumstances where the defendant will verbally insist he or she did not. In cases in which the defendant's words are inconsistent with the defendant's conduct, such a colloquy would be farcical. State v. McMorris,
2007 WI App 231,
306 Wis. 2d 79,
742 N.W.2d 322,
06-0772.
Although an indigent defendant does not have the right to pick his or her trial lawyer, the indigent defendant is entitled to a lawyer with whom he or she can communicate. The ability-to-communicate assessment is left to the reasoned discretion of the trial court. The court must make sufficient inquiry to ensure that a defendant is not cemented to a lawyer with whom full and fair communication is impossible; mere conclusions, unless adequately explained, will not fly. State v. Jones,
2007 WI App 248,
306 Wis. 2d 340,
742 N.W.2d 341,
07-0226.
There is no 6th amendment effective assistance of counsel right to subpoena police reports and other non-privileged materials prior to a preliminary examination. State v. Schaefer,
2008 WI 25,
308 Wis. 2d 279,
746 N.W.2d 457,
06-1826.
A lawyer's failure to investigate is not deficient performance if he or she reasonably concludes, based on facts of record, that any investigation would be mere wheel-spinning and fruitless. When there is reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. State v. Walker,
2007 WI App 142,
302 Wis. 2d 735,
735 N.W.2d 582,
06-0562. Reversed on other grounds, State v. Walker,
2008 WI 34,
308 Wis. 2d 666,
747 N.W.2d 673,
06-0562.
Wisconsin affords a convicted person the right to postconviction counsel. It would be absurd to suggest that a person has a right to counsel at trial and a right to counsel on appeal, but no right to the assistance of counsel at a postconviction proceeding in the circuit court, which is often the precursor to and augments the record for an appeal. State v. Peterson,
2008 WI App 140,
314 Wis. 2d 192,
757 N.W.2d 834,
07-1867.
A defendant does not have the right to be represented by: 1) an attorney he or she cannot afford; 2) an attorney who is not willing to represent the defendant; 3) an attorney with a conflict of interest; or 4) an advocate who is not a member of the bar. State v. Peterson,
2008 WI App 140,
314 Wis. 2d 192,
757 N.W.2d 834,
07-1867.
The circuit court's decision to remove counsel of choice is discretionary. The court does not have unfettered freedom to deprive a defendant of retained counsel. Whether removal for conflict was proper rests on whether the court balanced the defendant's right to be represented by retained counsel against the court's interest in the appearance of fairness and diffusing what it characterized as a potential conflict. State v. Peterson,
2008 WI App 140,
314 Wis. 2d 192,
757 N.W.2d 834,
07-1867.
When making a determination whether to allow the defendant's counsel of choice to participate, the circuit court must balance the defendant's right to select counsel against the public's interest in the prompt and efficient administration of justice. Several factors assist the court in balancing the relevant interests, for example: the length of delay requested; whether competent counsel is presently available and prepared to try the case; whether prior continuances have been requested and received by the defendant; the inconvenience to the parties, witnesses and the court; and whether the delay seems to be for legitimate reasons or whether its purpose is dilatory. State v. Prineas,
2009 WI App 28,
316 Wis. 2d 414,
766 N.W.2d 206,
07-1982.
A defendant must clearly and unequivocally make a declaration in order to invoke the right to self-representation. A trial court has no duty to advise a defendant of the right to self-representation prior to an invocation. State v. Darby,
2009 WI App 50,
317 Wis. 2d 478,
766 N.W.2d 770,
08-0935.
The fact that the government might know an informant hopes to receive a benefit as a result of providing information does not translate into an implicit agreement between the government and the informant if the informant is thereafter placed into an environment where incriminating information can be obtained. If there is hope, and nothing else, then the informant cannot be construed to be a government agent eliciting a statement in violation of the 6th amendment right to counsel. State v. Lewis,
2010 WI App 52,
324 Wis. 2d 536,
781 N.W.2d 730,
09-0429.
