Preliminary Hearings – Timeliness – Delays in the Appointment of Counsel for Defendants
State v. Lee, 2021 WI App 12 (filed 20 Jan. 2021) (ordered published 24 Feb. 2021)
HOLDING: Because the defendant’s preliminary hearing in a felony case was held later than the 10-day time limit without a proper finding of good cause, the circuit court was deprived of personal jurisdiction over the defendant.
SUMMARY: Wisconsin law requires that a preliminary hearing be held within 10 days after a defendant’s initial appearance if the defendant is in custody on a felony charge and bail is set in excess of $500. This time limit may be extended “on motion and for cause.” See Wis. Stat. § 970.03(2). In this case, after defendant Lee’s initial appearance, he was deemed eligible for representation by the Wisconsin State Public Defender (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 held 113 days after his initial appearance. While Lee was unrepresented, circuit court judges and a court commissioner, on their own motions, repeatedly extended the statutory, 10-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. Lee never consented to the adjournments and repeatedly objected to the delays.
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 also asserted that, barring a timely SPD appointment, the court was required to appoint counsel for him at county expense (see ¶ 2).
The circuit court denied the motion, and this interlocutory appeal followed. In an opinion authored by Judge Hruz, the court of appeals reversed.
The court of appeals concluded 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 for conducting a preliminary hearing for months based solely on the fact that the SPD had not yet obtained counsel for the defendant.
“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” (¶ 3). The court should recite on the record the factors that lead it to find good cause for the extension of time for holding the preliminary hearing and why such factors override the statutory directive that the hearing be promptly held (see ¶ 59).
The circuit court and the court commissioner should have considered the justification for the extensions and possible prejudice to the defendant. See State v. Selders, 163 Wis. 2d 607, 472 N.W.2d 526 (Ct. App. 1991). “When a circuit court or court commissioner moves sua sponte to extend the preliminary hearing deadline based on a lack of appointed counsel, some factors it should consider – especially as the delay continues – are the nature of the charges against the defendant, the extent of the SPD’s efforts to locate counsel, the reasons for the delay in obtaining counsel, and how long that delay is likely to continue given the other circumstances” (¶ 53).
The court should also consider alternative avenues of procuring counsel, such as a court appointment of counsel at county expense under State v. Dean, 163 Wis. 2d 503, 471 N.W.2d 310 (Ct. App. 1991) (see ¶ 54). Comments made by the judicial officials in this case suggest that a Dean appointment of counsel was not made because of its cost to the county. A county’s costs might be a valid consideration, but the court must also take into account the cost to the county of continuing to incarcerate the defendant while awaiting the preliminary hearing (see ¶ 55).
The overall length of the delay is also a factor that must have significance in the determination of good cause for an extension of time for the preliminary hearing. Although “the SPD bears the primary responsibility for obtaining counsel for indigent defendants, when there is an extended breakdown of that process, it is incumbent upon a circuit court to consider alternative mechanisms for appointing counsel” (¶ 57).
The court also should consider potential prejudice arising from one or more delays, including the potential that the defendant will be subjected to further evidence gathering by law enforcement officers while incarcerated and the possibility that the delay could compromise the defense or result in lost evidence, to the defendant’s detriment (see ¶ 58).
In this case the appellate court concluded 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 Wisconsin Supreme Court order amending SCR 81.02” (¶ 3).
Failure to hold a timely preliminary hearing resulted in a loss of personal jurisdiction over the defendant (see ¶ 61).
Accordingly, the court of appeals remanded this case to the circuit court with directions to dismiss the criminal complaint without prejudice (see ¶ 4).
Statutory Double Jeopardy – Territorial Jurisdiction
State v. Triebold, 2021 WI App 13 (filed 20 Jan. 2021) (ordered published 24 Feb. 2021)
HOLDING: 1) Wisconsin had territorial jurisdiction to prosecute the defendant, who was subject to lifetime sex-offender registration because of a Wisconsin sexual assault conviction, for his failure to notify Wisconsin authorities when he relocated from one Minnesota address to another Minnesota address. 2) Wisconsin’s prosecution of the defendant for failing to provide notice of an address change was not barred by Wis. Stat. section 939.71 even though he had already been convicted of violating Minnesota’s registration laws.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
SUMMARY: Triebold is subject to lifetime sex-offender registration in Wisconsin based on a crime he committed in Wisconsin approximately 25 years ago. After his release from a Wisconsin prison, Triebold relocated to Minnesota, and he later failed to provide both Wisconsin and Minnesota authorities with updated address information when he changed his place of residence within the state of Minnesota. He was convicted in Minnesota for his failure to update his registration there.
Afterward, Wisconsin filed the charge in the present action for Triebold’s failure to notify Wisconsin authorities about the change of Minnesota addresses, which would violate Wisconsin’s sex-offender registration law. In the Wisconsin prosecution, Triebold filed two pretrial motions to dismiss: one asserting lack of territorial jurisdiction and the other asserting that the Wisconsin prosecution was barred by statutory double jeopardy as provided for in Wis. Stat. section 939.71.
The circuit court denied the motions, and Triebold was convicted in a bench trial of failing to comply with Wisconsin’s registration requirements. See Wis. Stat. § 301.45(6)(a)1. In an opinion authored by Judge Hruz, the court of appeals affirmed.
The court of appeals first considered territorial jurisdiction. This form of jurisdiction, which is defined at Wis. Stat. section 939.03 and is a necessary prerequisite to a valid judgment of conviction, describes the reach of a state’s laws, which may extend beyond its geographic boundaries (see ¶ 10). In this case the court looked to Wis. Stat. section 939.03(1)(c), which provides that Wisconsin asserts jurisdiction over a person who, while outside Wisconsin, does an act with intent that it cause in this state a consequence set forth in a section defining a crime.
The court of appeals concluded that this statute “clearly provides a basis upon which the State could prosecute Triebold for his failure to provide Wisconsin authorities with his updated address information…. Triebold’s intentional act of omission had the consequence of depriving Wisconsin authorities of information concerning the location of his residence, a consequence expressly prohibited by Wis Stat. § 301.45. Section 301.45(4)(a), in conjunction with § 301.45(2)(a)5., requires a person subject to the sex offender registry to update the Wisconsin Department of Corrections with his or her address information within ten days after it changes, and the knowing failure to do so is criminalized by § 301.45(6)(a)1.” (¶ 13).
The court rejected Triebold’s argument that his failure to update his address information had a “consequence” only in Minnesota. Said the court: “Triebold fails to recognize that – given his prior commission of a crime in Wisconsin requiring his lifetime registration as a sex offender – all Wisconsin individuals and entities have a continuing interest in knowing where he resides, even if that is out of state” (¶ 14).
The court of appeals also rejected the defendant’s claim that the federal sex-offender registration laws preempt Wisconsin’s enforcement of its requirement that offenders subject to registration in this state update their registration information even if they move while residing outside Wisconsin (see ¶ 3).
Lastly, the court concluded that Triebold’s prosecution in Wisconsin was not barred by principles of statutory double jeopardy codified in Wis. Stat. section 939.71 because the Minnesota and Wisconsin statutes under which he was prosecuted each require proof of different facts (see ¶ 25). Under the Minnesota statute, Triebold was required to provide notice of his new address to law enforcement entities located in Minnesota. He was not prosecuted in Wisconsin for failing to provide his new address to Minnesota authorities. Rather, he was prosecuted in Wisconsin for failing to provide his updated address information to Wisconsin authorities (see ¶ 26).
Said the court: “We conclude that the registration crimes [of Minnesota and Wisconsin] were legally distinct for purposes of Wis. Stat. § 939.71” (id.).
Registry – Gender Identification – Self-expression
State v. C.G. (In Interest of C.G.), 2021 WI App 11 (filed 20 Jan. 2021) (ordered published 24 Feb. 2021)
HOLDING: The appellant was lawfully ordered to comply with the sex-offender registration requirements; her First Amendment rights were not violated by that statute’s prohibition against legal name changes.
SUMMARY: The appellant, “Ella,” was convicted of forcibly sexually assaulting a 15 year old. Ella, a transgender female, was age 15 at the time (see ¶ 4). The circuit court denied Ella’s postdispositional motion seeking to stay her sex-offender registration and to declare the sex-offender registry provisions unconstitutional.
The court of appeals affirmed in an opinion authored by Judge Seidl. First, the court found no abuse of discretion in the circuit court’s denial of a stay. Applicable statutory factors are discussed in light of the evidentiary record, which revealed “ample evidence” supporting the circuit court’s findings (¶ 25).
Second, the statutory ban against any name change did not offend the First Amendment as applied (see ¶ 26). Federal and state case law did not support Ella’s claim. “Ella has the right to use whatever name she chooses, provided she includes it in the sex offender registry” (¶ 32). Thus, the statute did not implicate the First Amendment.
Third, alternatively, even when applying a First Amendment analysis, Ella’s arguments failed. The name-change ban was content neutral; thus, it did not trigger a strict-scrutiny analysis (see ¶ 33). “The statute is content neutral because it does not determine such matters as what name a person must use – or what must be contained in a name – and does not treat anyone differently based on their name” (¶ 35). In short, the statute “easily passes intermediate scrutiny” (¶ 37).
Finally, prior case law foreclosed Ella’s contention that the statute violated her rights under the Eight Amendment’s “cruel and unusual punishments” ban.