State v. Kenneth A. James, 2013AP2409-CR, District 2, 7/23/14 (not recommended for publication); case activity
James insisted on going to trial even though the transcript from the preliminary hearing hadn’t yet been prepared, so he can’t complain now that trial counsel was ineffective for failing to seek an adjournment so he could get the transcript.
James’s trial counsel made multiple requests for a transcript of the preliminary hearing but did not get the transcript by the time of trial. (¶3). Trial counsel had already received one adjournment of the trial to have more time to review discovery—an adjournment James only reluctantly agreed to. He testified that he talked to James before trial about his inability to get the transcript and that James told him he did not want another adjournment. (¶¶2, 4). James denied his trial counsel had told him that he could ask for an adjournment to wait for the transcript, but the circuit court found trial counsel’s testimony more credible. (¶¶4, 5).
¶9 “A defendant who insists on making a decision which is his or hers alone to make in a manner contrary to the advice given by the attorney cannot subsequently complain that the attorney was ineffective for complying with the ethical obligation to follow his or her undelegated decision.” State v. Divanovic, 200 Wis. 2d 210, 225, 546 N.W.2d 501 (Ct. App. 1996). “If a defendant selects a course of action, that defendant will not be heard later to allege error or defects precipitated by such action. Such an election constitutes waiver or abandonment of the right to complain.” State v. Robles, 157 Wis. 2d 55, 60, 458 N.W.2d 818 (Ct. App. 1990) (citation omitted). The circuit court found that James knew the consequences of proceeding to trial without a transcript from the preliminary hearing and that James chose to go to trial anyway. James cannot now claim his trial counsel was deficient for following his own informed choice because the outcome was not as he hoped.[3] See id.
[3] Best practice in a fact situation as presented here is for defense counsel to inform the circuit court of the lack of transcript prior to trial such that the defendant’s knowledge and consent to proceed without the transcript is on the record. The court may also be able to promptly obtain the desired transcript from the reporter.
