State v. Richard H. Harrison, 858 N.W.2d 372

Richard H. Harrison was charged in Clark County; Clark County has only one resident circuit judge, Judge Jon M. Counsell.
Harrison timely filed a written request for substitution of judge under Wis. Stat. § 971.20; the clerk approved and the chief judge reassigned the matter to Judge Thomas Flugaur.
Judge Flugaur presided over the preliminary hearing and expressly told parties the case could be scheduled back with Judge Counsell for arraignment and trial.
Despite the substitution, Judge Counsell later presided over arraignment, pretrial events, the July 2011 jury trial (resulting in convictions), sentencing, and postconviction proceedings; no § 971.20(11) written agreement returning the case to Judge Counsell was ever filed.
Harrison moved postconviction for a new trial, arguing Judge Counsell lacked authority; the circuit court denied relief (but granted other sentencing-program relief), the court of appeals reversed and ordered a new trial, and the Wisconsin Supreme Court granted review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Harrison forfeited his § 971.20 peremptory substitution right by proceeding without objecting when Judge Counsell returned	Harrison forfeited the right by participating at trial and sentencing without reserving the issue; common-law forfeiture should apply	Harrison did not forfeit: he made a timely, proper request that was granted and did not follow the statutory § 971.20(11) procedure to return the judge; Austin controls	Harrison did not forfeit the right; the substitution request remained effective and Judge Counsell erred in presiding
Whether the error is subject to harmless-error analysis	Any procedural or competency error that did not prejudice the defendant was harmless beyond a reasonable doubt	Harmless-error analysis cannot apply because § 971.20 grants an absolute right to substitution without proof of prejudice; allowing harmless-error review would nullify the statute	Harmless-error analysis does not apply; the statutory right cannot be nullified by a harmless-error inquiry; remand for new trial

State v. Austin, 171 Wis. 2d 251 (Ct. App.) (timely granted substitution continues to protect defendant; substituted judge may not resume absent § 971.20(11) agreement)
State v. Smith, 106 Wis. 2d 17 (1982) (once judge is substituted out, that judge may not preside over subsequent proceedings)
Clark v. State, 92 Wis. 2d 617 (1979) (failure to pursue timely relief or object can forfeit challenge where request was not acted on and the defendant effectively abandoned it)
State v. Damaske, 212 Wis. 2d 169 (Ct. App.) (distinguishable: substitution request was denied as untimely and defendant waived challenge by pleading without reservation)
State v. Holmes, 106 Wis. 2d 31 (1982) (background on the peremptory substitution statute and legislative intent to eliminate affidavit-of-prejudice requirement)
State v. Bell, 62 Wis. 2d 534 (legislative history and intent that defendants need not prove prejudice)
State v. Matasek, 353 Wis. 2d 601 (2014) (statutory interpretation principle: do not read into statute language legislature did not include)