Portage County v. W.P.R., 2024AP454, 7/11/24, District IV (one-judge decision; ineligible for publication); case activity
COA affirms circuit court’s order denying defendant’s request for new counsel in TPR case.
The only issue raised by the appellant in this appeal from the circuit court’s order terminating his parental rights was whether the court erroneously exercised its discretion when it denied his request for new counsel. In a straightforward application of State v. Lomax, a 1988 SCOW decision that addressed the factors to consider when reviewing whether the circuit court properly exercised its discretion in deciding whether to appoint new counsel, the court of appeals affirmed.
The factors are: 1) the adequacy of the circuit court’s inquiry into the defendant’s complaint; 2) the timeliness of the motion; and 3) whether the alleged conflict between the defendant and counsel 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.” (¶ 13).
The court of appeals considered the circuit court’s inquiry appropriate, even though it did not expressly determine on the record whether there was a total lack of communication: “Such a requirement would be inconsistent with the principle that the court’s inquiry need not satisfy a particular formula.” (¶ 18). The court found that the record demonstrated there was not a total lack of communication, “even though the court did not recite those words verbatim.” (¶ 19).
Regarding communication between W.P.R. and counsel, the court observed that the conflict arose from strategic decisions made by counsel, and “Wisconsin cases are clear that the ‘mere disagreement over trial strategy does not constitute good cause to allow an appointed attorney to withdraw.’” (¶ 22) (quoting State v. Robinson (Ct. App. 1988)). The court of appeals also noted that W.P.R. and counsel adequately communicated because, at a hearing one month after counsel was appointed, W.P.R. waived his right to a jury trial, represented that he discussed the issue with counsel, and did not express difficulty communicating with counsel. (¶ 24).
Finally, in light of W.P.R. requesting new counsel one week before trial and six months after counsel was appointed, the court of appeals concluded the circuit court did not erroneously exercise its discretion when it considered the request for new counsel untimely. (¶ 30).
