¶ 1. Alvernest Floyd Kennedy appeals
pro se
from two postconviction orders entered after he was convicted of homicide by intoxicated use of a motor vehicle, contrary to Wis. Stat. § 940.09(1)(a) & (lc)(b) (2005-06).
1
He challenges both: (1) the order denying his motion seeking appointment of postconviction counsel at county expense, and (2) the order denying his motion seeking reconsideration of the trial court's denial of the first order. Kennedy claims the trial court erroneously exercised its discretion
BACKGROUND
¶ 2. At about 12:13 a.m. on August 3, 2006, Kennedy was driving his vehicle eastbound on Fond du Lac Avenue in the City of Milwaukee when he struck a pedestrian. The victim, Sheila Watson, was declared dead shortly after being transported to the hospital. Police Officer Marcey Asselin was the first to arrive at the scene. Kennedy identified himself as the driver of the vehicle that struck the victim. Officer Asselin observed during her interaction with Kennedy that he had bloodshot eyes, was slurring his speech, and exhibited a strong odor of alcohol. Based on her observations and experience, Officer Asselin believed Kennedy to be under the influence of alcohol. He was subsequently conveyed to the hospital for a blood draw to determine whether he had been operating his vehicle while intoxicated. He was placed under arrest, and a blood sample was taken and submitted for analysis. His blood was found to contain a blood alcohol concentration of .216 grams, approximately two hours, forty minutes after the accident. In a complaint dated August 7,2006 and amended August 11, 2006, 2 Kennedy was charged with one count of homicide by intoxicated use of a vehicle and one count of driving with a prohibited alcohol concentration.
¶ 3. Kennedy retained a private attorney, John Schiro, to defend him. The case was tried to a jury. The jury found Kennedy guilty and he was sentenced to eighteen years, consisting of eleven years initial confinement followed by seven years of extended supervision. On May 8, 2007, Schiro reviewed with Kennedy the form entitled: "Notice of Right to Seek Postconviction Relief." On May 14, 2007, Schiro filed, on Kennedy's behalf, a notice of intent to seek postconviction relief, which stated in pertinent part:
The defendant currently is an inmate at the Milwaukee County Jail. The defendant was represented by privately retained counsel, John S. Schiro .... However, the defendant is indigent and seeks representation by the Office of the State Public Defender.
¶ 4. On October 4, 2007, Kennedy filed a pro se motion in this court seеking an extension of time for the SPD to appoint counsel and request transcripts. He asserted that due to limited resources and his temporary facility assignment, he was unable to timely comply with the SPD's request for information necessary to assess indigency. He alleged that he submitted all the required information to the SPD on May 29, 2007. By order dated October 10, 2007, we held the motion in abeyance and referred the matter to the Office of the State Public Defender.
¶ 5. The SPD responded to this court's order on October 19, 2007:
An Eligibility Evaluatiоn Form (E-Form) was mailed to the defendant on May 23, 2007, with instructions to return it within 7 days. Defendant submitted an incomplete E-Form on June 4, 2007. Additional information was requested from the defendant on June 5, 2007, June 21, 2007, and July 26, 2007. The defendant did not submit a complete E-Form. The defendant was notified by letter dated August 13, 2007, that he had not submitted sufficient financial documentation to determine eligibility and that this office was unable to appoint counsel.
... As of October 19, 2007, the defendant has still not submitted a complete E-Form, the State Public Defender can not determine finаncial eligibility, and is unable to appoint appellate counsel.
¶ 6. Based on the response from the SPD, we denied Kennedy's motion for an extension of time. On January 7, 2008, Kennedy filed, pro se, a document with the circuit court entitled "Notice of Motion and Motion to Appoint Postconviction Counsel." In this document, Kennedy represented that he sought counsel through the SPD, but he "was not found to be eligible under State Public Defender Standards." He asked the circuit court to exercise its inherent authority to appoint postconviction counsel at county expense.
¶ 7. The trial court denied the motion by written order dated January 17, 2008. On February 7, 2008, Kennedy filed a motion seeking reconsideration of that denial. The trial court denied the motion for reconsideration by written order dated February 11, 2008. Kennedy now appeals.
DISCUSSION
¶ 8. Kennedy makes two arguments. First, he contends the trial court erred in upholding the SPD's determination denying appointment of counsel. Second, he contends the trial court erred in failing to proceed to thе second independent analysis under the circuit court's inherent authority to consider whether counsel should be appointed despite the SPD's denial. We reject each contention in turn.
¶ 9. It is clear that a "criminal defendant in Wisconsin is guaranteed the right to counsel by both article I, section 7 of the Wisconsin Constitution and the Sixth Amendment to the United States Constitution."
State v. Drexler,
¶ 10. There are two avenues by which an indigent criminal defendant will be afforded counsel at no expense. The first is through the legislatively created Office of the State Public Defender. The legislature created Wis. Stat. ch. 977 of the Wisconsin Statutes establishing the Office of the State Public Defender "to deal with the appointment of counsel for indigent defendants."
Pirk,
A. SPD Denial.
¶ 11. Kennedy argues that the trial court failed to properly review the SPD's determination that he did not qualify for the appointment of counsel. In reviewing this issue, the trial court's findings of fact will not be overturned unless clearly erroneous.
See id,
¶ 12. Wisconsin Stat. § 977.06(4) provides in pertinent part that: "A circuit court may review any
indigency determination upon its own motion or the motion of the defendant and shall review any indigency determination upon the motion of the district attorney or the state рublic defender." In
Dean,
we addressed the same issue, engaged in statutory construction of the statutes, and determined that under the statute the circuit court's " 'review [of] any indigency determination' is limited to determining whether the public defender properly followed the legislative criteria."
Id.,
¶ 13. As noted in the chronology set forth earliеr in this opinion, attempting to solicit cooperation from Kennedy was no easy task. The SPD repeatedly asked him to submit additional and current documentation. Kennedy failed to timely submit to the SPD sufficient and current information to enable it to make an assessment as to indigency. The SPD asked Kennedy to complete an Eligibility Evaluation Form ("E-form"). He failed to initially return the E-form and then eventually submitted an incomplete and very tardy E-form. As of October 19, 2007, the SPD still did not have the information it needed in order to make an indigency eligibility assessment. Thus, at that time, the SPD denied appointment, not based on a financial analysis, but because Kennedy failed to submit to the SPD sufficient documentation to enable it to conduct the financial analysis. Although not completely clear from the record, it does appear that sometime between October 19, 2007 and December 21, 2007, through an additional exchange of letters and documentation, the SPD did finally determine on the basis of the information submitted, that Kennedy did not satisfy its financial eligibility requirements. 3
¶ 14. Shоrtly thereafter, on January 7, 2008, Kennedy filed a motion with the circuit court seeking appointment of counsel at county expense. The circuit court's ruling in its January 17, 2008 order denied Kennedy's motion, reasoning:
The public defender's office has forwarded all documents to this court for review regarding its determination that the defendant was not eligible for the appointment of appellate counsel. The materials reveal that the defendant owns several rental properties from which rents are obtained. The informationis not current, however, as to what became of the properties (or if rents are still collected to pay the mortgages). The public defender's office has indicated that it has given the defendant several opportunities to provide it with current documentation with respect to those properties, and the defendant has failed to do so. Under the circumstances, the court cannot find the public defender's determination of ineligibility is without basis.
¶ 15. The circuit court's finding in this regard is not сlearly erroneous. It is the defendant's burden to submit documentation sufficient and current so that an accurate assessment of financial circumstances can be made.
See Buelow,
B. Inherent Authority.
¶ 16. Kennedy's second argument is that the trial court erred in failing to invoke its inherent authority and appoint counsel after his request for the appointment of counsel from the SPD was rejected. We held in
Dean,
that "[t]here are situations . . . where a defendant does not meet certain indigency criteria, but nevertheless is unable to afford counsel."
Id.,
¶ 17. Kennedy had the burden of proving that he is indigent. See id. "Whether the defendant has the financial means to obtain counsel is a question of fact." Id. (citation omitted). It is Kennedy who has the information necessary to show the court why he is unable to retain private counsel. See id. Whether Kennedy has provided the circuit court with sufficient fаcts to appoint counsel under its inherent authority is a discretionary call for the circuit court. See id. at 514.
¶ 18. "A defendant who seeks appointed counsel must present evidence to the trial court of his or her assets, income, liabilities and attempts to retain counsel."
Id.
The record reflects that Kennedy submitted:
C. Reconsideration.
¶ 19. After Kennedy received the circuit court's order denying his motion seeking appointment of counsel at county expense, he submitted a motion seeking reconsideration. The motion for reconsidеration asserts that the SPD erred in its calculation, the trial court erred in relying on the miscalculation, and the trial court erred in not making an independent indigency determination based on the information Kennedy submitted. In addition, Kennedy attached new information with his motion, including: (1) a personal financial statement showing the value of his real estate ownership to be $415,000, his total liabilities to be $429,000; his real estate income to be $4,725; listing four rental properties with each being in default on the mortgage; 5 (2) information regarding rental income and expenses related to these properties; (3) mortgage statements on the 3075 North 21st Street property (dated 10/12/07), 2424 West Concordia Avenue property (dated 10/17/07), 3451 North 5th Street property (dated 11/16/07), and the 3025 North Buffum Street property (dated 12/16/07), all showing amounts due; (4) two letters from private counsel stating an estimate as to what it might cost to represent Kennedy on appeal; and (5) correspondence between Kennedy and the SPD. 6
¶ 20. In response to this submission, the trial court denied the motiоn, ruling that
¶ 21. In reviewing a trial court's decision on a motion for reconsideration, we apply the erroneous exercise of discretion standard.
Koepsell's Olde Popcorn Wagons, Inc. v. Koepsell's Festival Popcorn Wagons,
Ltd.,
¶ 22. In reviewing this record, we cannot conclude that the trial court erroneously exercised its discretion. Kennedy made a mess of the record and the process in this case. After sentencing, Kennedy alleged that he was indigent and requested that a state public defender be appointed for postconviction and appellate purposes. In rеsponse, the SPD mailed him an E-Form on May 23, 2007, with instructions to complete and return it within seven days. He submitted an incomplete E-form twelve days later on June 4, 2007. On June 5, 2007, June 21, 2007, and July 26, 2007, the SPD requested additional information from Kennedy. Kennedy failed to submit a complete E-form and was notified by letter dated August 13, 2007 that he had not submitted the financial documentation required by the SPD in order for it to make an assessment as to whether he qualified for an SPD appointment.
¶ 23. He then engaged in additional correspondence with the SPD telling them by lettér dated Oсtober 20, 2007, that he would now like to submit the additional documentation that the SPD had requested from him on July 27, 2007. By letter dated November 5, 2007, he submitted additional documents to the SPD. The SPD responded on November 6, 2007 that it had to stand by its original determination as Kennedy failed to establish eligibility and the time limit for appointment had expired. On November 10, 2007, Kennedy wrote to the SPD again asking them to review the information he submitted and "make a determination of. . . eligibility for appointment of counsel." On December 21, 2007, the SPD responded:
I have reviewed all previous correspondence and all of the information we have received regarding the issue of your eligibility for appointment of public defender counsel. I am sorry but based upon the information provided to us, the original determination that you are financially ineligible for appointment of public defender counsel was correct.
The fact that you executed a revocable durable power of attorney document naming Myrna Harris to manage your property and assets does not alter the fact that those assets remain yours and are assets we must account for in the eligibility calculus. The financial documents provided show a great many discretionary expenditures. The reported income minus the discretionary expenditures far exceeds that which would allow you to qualify for public defender counsel.
¶ 24. Kennedy then filed a motion with the circuit court, challenging the SPD denial and seeking appointment of counsel. He alleged in the reconsideration motion that the SPD miscalculated his financial status and the trial court erred in relying on the miscalculation. The problem with
¶ 25. Finally, Kennedy argues that the trial court should have looked beyond the SPD's determinаtion to other facts to determine whether to find him indigent. Kennedy is correct that Wisconsin law permits the circuit court to exercise its inherent authority to appoint counsel for an indigent defendant even if the defendant does not qualify as indigent under the legislatively created SPD guidelines.
See Dean,
¶ 26. The inherent power to appoint, however, should be exercised only after a defendant has fully сooperated with the SPD to enable the SPD an opportunity to properly assess whether the defendant qualifies for SPD appointment. It is not completely clear in this case whether or not that happened. The record does reflect that Kennedy ignored requests from the SPD, failed to submit documentation, and sent back incomplete information. Despite Kennedy's failure to cooperate, there is some indication that eventually, the SPD was able to make a financial analysis and concludеd that Kennedy did not qualify for SPD appointment. The record, nonetheless, also suggests that docu ments filed with the SPD were never filed with the circuit court and documents filed with the circuit court (pertinent to the SPD evaluation) were never filed with the SPD.
¶ 27. We emphasize that the procedures set forth in Dean by this court suggest that the inherent power of the circuit court shall be exercised to cover situations where a defendant cooperated with the SPD's financial analysis, was found not to be indigent under the legislative criteria, but based on the individual circumstances of the case, public justice, and sound policy is in fact "indigent." Id. at 512-14. A defendant may be found ineligible by the SPD, but still demonstrate he/she is unable to retain and pay for private counsel. If that is the case, the circuit court shall consider all relevant information submitted, on a case-by-case basis, to decide whether the defendant truly is indigent and whether counsel should be appointed at county expense. Id. at 514.
¶ 28. The inherent power of the court should not be invoked when a defendant fails to seek SPD appointment, fails to cooperate with the SPD for the indigency assessment, or fails to submit the required information to make a proper assessment. In other words, the first step for a defendant in seeking appointment of counsel based on inability to pay must be with the SPD.- A defendant must fully and timely cooperate with the SPD so that it
¶ 29. A defendant who finds himself in this position, however, carries the burden of submitting proof to the circuit court to enable it to make such an assessment. Id. at 513-14. "It is the defendant who possesses the facts necessary to explain why he or she is unable to retain private counsel." Id. at 513.
¶ 30. Here, Kennedy failed to satisfy that burden in his first motion because the information he submitted for review was incomplete and did not include any dоcumentation about attempts to retain counsel. He further failed to satisfy his burden in his motion for reconsideration. Although he did include two letters regarding attempts to retain counsel, the documentation was incomplete and inconsistent with what was previously contained in the record. There was no accounting for the 83rd Street property, or ownership/information related to his mailing address. The information was incomplete and therefore the circuit court did not erroneously exercise its discrеtion in ruling that Kennedy failed to satisfy his burden. Based on the facts and circumstances specific to this case, the circuit court did not err in denying Kennedy's motion seeking to reconsider the denial of his request to appoint counsel at county expense.
By the Court. — Orders affirmed.
Notes
All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
The amended complaint noted that Kennedy had one or more prior convictions, suspensions, or revocations counted under Wis. Stat. § 343.307(2).
We discern this from the only lettеr in the record which appears to acknowledge that the SPD conducted an eligibility determination and concluded that Kennedy's income exceeded the standards for SPD appointment. The letter is dated December 21,2007 from the SPD and states: "[Your] reported income minus the discretionary expenditures far exceeds that which would allow you to qualify for public defender counsel."
Kennedy includes in his reply brief a document which purports to be a SPD Worksheet, wherein an Evaluator by the name of Brendаn Rudolph conducted a financial review of Kennedy's income and expenses and concluded that Kennedy was not eligible for appointment of counsel. This document, however, does not appear in the record and therefore we cannot consider it in this appeal.
See Jenkins v. Sabourin,
We note that the rental properties disclosed in the first motion seeking appointment of counsel referenced three rental properties: (1) 2424 West Cоncordia Avenue; (2) 4480 North 83rd Street; and (3) 3075 North 21st Street. The documentation submitted with the motion for reconsideration lists four rental properties, including the Concordia Avenue and North 21st Street in addition to: (1) 3451 North 5th Street and (2) 3025 North Buffum Street. The reconsideration submission does not include the North 83rd Street property. In addition, the record includes documentation listing Kennedy's address as 2102 North 49th Street. The nature or status of this property is not disclosed.
The correspondence consisted of: (1) a letter dated October 20, 2007 from Kennеdy to Patrick Donnelly at the SPD; (2) a letter dated November 5, 2007 from Kennedy to Patrick Donnelly at the SPD which purported to submit additional financial documentation to the SPD; (3) a letter dated November 6, 2007 from Brendan Rudolph of the SPD, which stated it was a response to Kennedy's October 29, 2007 letter, advising that Kennedy failed to establish he was financially eligible for an SPD-appointed lawyer and that the time limit for the SPD to appoint had expired; (4) the December 21, 2007 letter from Joseph Ehmann of the SPD to Kennedy referring to Kennedy's "most recent letter" and indicating that Kennedy's submissions did not establish that he qualified for a SPD-appointed lawyer.