STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, v. NHIA LEE, DEFENDANT-APPELLANT.
Case No.: 2019AP221-CR
COURT OF APPEALS OF WISCONSIN
January 20, 2021
2021 WI App 12
PUBLISHED OPINION. †Petition for Review Filed. Cir. Ct. No. 2018CF1025. Marathon County. LAMONT K. JACOBSON, Judge.
Oral Argument: October 28, 2020
JUDGES: Stark, P.J., Hruz and Seidl, JJ.
Appellant ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the briefs of
Respondent ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the brief of Timothy M. Barber, assistant attorney general, and Joshua L. Kaul, attorney general. There was oral argument by Timothy M. Barber.
A nonparty brief was filed by Kelli S. Thompson, assistant state public defender, and Katie R. York, state public defender appellate division director of Madison.
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See
APPEAL from an order of the circuit court for Marathon County: LAMONT K. JACOBSON, Judge. Reversed and cause remanded with directions.
Before Stark, P.J., Hruz and Seidl, JJ.
¶1 HRUZ, J. Wisconsin law requires that a preliminary hearing be held within ten days of a defendant‘s initial appearance if the defendant is in custody on a felony charge and bail is set in excess of $500.
¶2 During the time Lee was unrepresented, circuit court judges and a court commissioner, on their own motions, repeatedly extended the statutory, ten-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. 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. The court ultimately denied Lee‘s motion.
¶3 We agree with Lee 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 under
¶4 Because Lee‘s preliminary hearing was held outside of the ten-day time limit without a proper finding of good cause, the circuit court was deprived of personal jurisdiction over Lee. Accordingly, we reverse the order denying Lee‘s motion to dismiss and remand with directions for the court to grant the motion and dismiss the criminal complaint without prejudice.
BACKGROUND
¶5 On September 10, 2018, Lee was charged in Marathon County Circuit Court case No. 2018CF1025 with two felony drug offenses and a single count of identity theft.2 Lee made an initial appearance that same day; he was represented by SPD-appointed counsel for purposes of that hearing only, but the matter was continued to the following day because his attorney had not yet spoken to Lee about the charges. The circuit court found probable cause for the charged offenses based upon the contents of the criminal complaint and imposed cash bail in the amount of $25,000.
¶6 The imposition of bail in that amount triggered the statutory obligation to hold a preliminary hearing within ten days of the initial appearance. See
¶7 On September 14, 2018, a court commissioner, sua sponte, held what was designated as a “review hearing.” The State did not appear at the hearing. Lee appeared without counsel, as the SPD had not yet appointed anyone for him. The commissioner stated its understanding that Lee had been “found eligible for a Public Defender but they are still looking for somebody to represent you.” Lee confirmed that he shared that understanding, and he reaffirmed that he wanted an attorney to represent him. The commissioner removed the preliminary hearing from the schedule and found good cause to extend the ten-day time limit for holding the preliminary hearing until another review hearing scheduled for the following week.
¶8 The court commissioner conducted additional weekly review hearings between September 21 and October 12, 2018. At each hearing, the commissioner, sua sponte, considered whether to extend the time limit for holding the preliminary hearing. The State did not appear at any of the hearings, and Lee continued to appear without counsel. At each hearing, the commissioner stated that the SPD was continuing to search for someone to represent Lee. Each time, the commissioner, on its own motion, found good cause to extend the time limit for holding the preliminary hearing. At the October 5 hearing, the commissioner noted that “four people this week ... got attorneys ... but it looks like nothing has changed in your case yet.”
¶9 At the October 12, 2018 review hearing, Lee objected that he had been in custody for one month without counsel. The court commissioner responded: “I wish I could tell you what the hold up is, there doesn‘t seem to be any ... certain length. I‘ve seen people who have been in shorter get attorneys, so I‘m not sure what the hold up is on your particular case.” The commissioner told Lee that, at some point, the lack of counsel for him “will become a problem.” The commissioner informed
¶10 A similar discussion occurred at the October 19, 2018 review hearing. Lee again objected to the amount of time he had been in custody without an attorney, and the court commissioner again advised Lee to write a letter to Judge Jacobson expressing his concerns.3 The commissioner again found good cause to extend the time for holding the preliminary hearing.
¶11 Lee wrote a pro se letter to Judge Jacobson in mid-October, expressing concerns regarding his due process rights as a result of the delay and requesting that his case be dismissed.4 At the October 26, 2018 review hearing, the court commissioner acknowledged that the circuit court had received the letter but had taken no action on it. The commissioner then summarily found good cause to extend the time limit for the preliminary hearing.
¶12 At the November 2, 2018 review hearing, the commissioner again observed that no action had been taken on Lee‘s letter. Lee objected that he had been “sitting here for this long” without counsel. The commissioner acknowledged it had to “be frustrating to sit there and be waiting” and offered to investigate the status of Lee‘s letter before the next review hearing. The commissioner again found good cause to extend the time limit for the preliminary hearing based solely on the SPD‘s failure to locate an attorney for Lee.
¶13 The circuit court held a hearing on November 7, 2018, to address Lee‘s letter. Lee, still unrepresented, appeared in person, as did the State. The court invited SPD attorney Suzanne O‘Neill to attend and explain the delay in finding an attorney for Lee. O‘Neill acknowledged that Lee had been “on the list now a significant period of time.” O‘Neill believed “at least 100, if not more” attorneys had been contacted by the SPD. None of those attorneys were willing to represent Lee, although O‘Neill was not asked why that was the case, and she did not otherwise specify the reasons. O‘Neill stated that the SPD had attempted to contact local attorneys by telephone and attorneys throughout the state by e-mail.
¶14 In addressing Lee‘s motion, the circuit court found that Lee had been waiting approximately two months for a preliminary hearing and that the delay was “getting very, very close to the point where the Court could find a constitutional violation.” Nonetheless, the court observed that probable cause had been twice found during Lee‘s initial appearances and that Lee had received weekly review hearings, during which the court commissioner found good cause to extend the ten-day time limit to hold a preliminary hearing. On these respective bases, the court found neither a constitutional nor statutory violation, and it denied Lee‘s motion to dismiss.
¶16 The court commissioner first raised the prospect of appointing an attorney for Lee at county expense during the November 30, 2018 hearing. Lee told the commissioner that he had sent the circuit court judge another letter, which the court apparently had not yet received. Lee then inquired about the results of the Marathon County judges’ meeting, and the commissioner informed him that they “haven‘t come up with any plan yet” and had decided only to hold review hearings on a biweekly schedule rather than weekly. When Lee further questioned the delay, the commissioner stated: “[A]t some point they‘re going to have to do something different and that might mean appointing somebody for you at County expense. I know they‘re trying not to have to do that, but at some point that might have to be what the answer is.”
¶17 The December 14, 2018 review hearing was held before Judge Michael Moran. The circuit court stated it “wish[ed the SPD] could have someone at this point but they don‘t, therefore I‘m going to toll time limits for cause at this time.” The next review hearing was set for December 28, 2018.
¶18 On December 21, 2018, the SPD appointed attorney Julianne Lennon as counsel for Lee. Attorney Lennon immediately filed a motion to dismiss, alleging that the delays in appointing counsel for Lee had violated his Sixth Amendment and statutory rights. At the next hearing, which was held on December 28 before the court commissioner, Lennon appeared with Lee and argued that given the SPD‘s delay in appointing counsel for Lee, the circuit court was required to have appointed an attorney at county expense pursuant to S. CT. ORDER 17-06, 2018 WI 83 (eff. Jan. 1, 2020) (In re the Petition to Amend SCR 81.02). The preliminary hearing had been set for January 2, 2019, but Lennon objected to that date because it would occur more than ten days after her appointment. The commissioner again found good cause to extend the time limit, based upon its assumption that January 2, 2019, was the earliest date available for a hearing.
¶19 Lee then filed an amended motion to dismiss, in which he added a claim that his pretrial detention without an attorney violated his due process rights. Lee asserted the circuit court had inherent authority to appoint counsel for him at county expense, and that its failure to do so and to
¶20 Lee‘s motion to dismiss was heard on March 25, 2019. In addition to her written arguments, Lennon argued at the hearing that the various judicial actors who had found good cause to extend the time limit for holding Lee‘s preliminary hearing had done so without a sufficient basis. Lennon contended they had failed to properly exercise discretion under State v. Selders, 163 Wis. 2d 607, 472 N.W.2d 526 (Ct. App. 1991), because they had failed to consider the possible prejudice Lee suffered as a result of the delayed preliminary hearing. Lennon represented that Lee had been interviewed by numerous law enforcement agencies while he was awaiting the appointment of counsel, that he had been taken for a “ride-along” to identify locations of ongoing criminal activity, and that officers had confiscated his cell phone. Lennon contended that because these activities occurred without Lee having representation, he was unable to negotiate a cooperation agreement, have the interviews recorded, or secure a property receipt for his phone.6
¶21 In addressing Lee‘s motion, the circuit court recognized that, given the low compensation rates for SPD-appointed attorneys, there were few attorneys willing to take such cases and “[a] statewide crisis regarding public defender representation has been brewing for several years.” The court noted that Marathon County judges had been attempting to deal with the problem by scheduling review hearings prior to the preliminary hearing for two purposes: (1) to make sure that indigent persons requesting an attorney had obtained representation by the time of the preliminary hearing, which is a “critical stage” in criminal proceedings7; and (2) to avoid repeatedly rescheduling the preliminary hearing due to the lack of counsel, thereby inconveniencing any police officers who were required to testify at such hearings.
¶22 The circuit court ultimately denied Lee‘s motion to dismiss. The court noted that Lee had no constitutional right to a preliminary hearing and that his constitutional right to a timely probable cause determination had been satisfied by the probable cause reviews during the initial appearances in both the earlier-filed case and the present case. The court also determined that Lee‘s Sixth Amendment right to counsel was not affected by the SPD‘s delay in obtaining counsel for him, although it found the circumstances of Lee‘s case “extreme” and stated it was “very troubled by the length of time that it took.” The court also determined that the statutory time limits under
DISCUSSION
I. Preliminary Hearings Generally and “Cause” to Extend the Time Limit for Holding One
¶23 We begin with Lee‘s assertion that the circuit court lacked personal jurisdiction over him as a result of its failure to hold a preliminary hearing within ten days of his initial appearance. Since 1849, the preliminary hearing has been considered “an essential step in the criminal process involving felonies.” Sparkman v. State, 27 Wis. 2d 92, 99, 133 N.W.2d 776 (1965). The hearing is held “for the purpose of determining if there is probable cause to believe a felony has been committed by the defendant.”
¶24 Strict timeliness provisions govern when a preliminary examination must be commenced. See
¶25 Lee‘s statutory claim turns on what constitutes “cause” under
¶26 During each of Lee‘s first twelve review hearings, the various judicial actors found “cause” under
¶27 Lee argues that while the SPD‘s search for counsel may have initially constituted cause to delay the preliminary examination, that justification eventually dissipated given the circuit court‘s inherent authority to appoint an attorney at county expense. Indeed, Lee goes so far as to argue the court was required to appoint counsel for him at county expense. Lee‘s argument thus implicates both the SPD‘s statutory responsibility to find counsel for indigent defendants and a court‘s inherent authority to appoint an attorney for an indigent defendant at county expense.
¶28 As part of our analysis in this case, we are mindful that “long-standing principles relating to the right to counsel are among the most important in protecting an accused.” State v. Forbush, 2011 WI 25, ¶45, 332 Wis. 2d 620, 796 N.W.2d 741. Indeed, the Wisconsin Constitution recognizes that a defendant “enjoy[s] the right to be heard by himself and counsel.”
¶29 In creating the SPD, the legislature “intended to structure a comprehensive state-wide program to deal with the appointment of counsel for indigent defendants.” Douglas Cnty. v. Edwards, 137 Wis. 2d 65, 76-77, 403 N.W.2d 438 (1987). The statutes establish a public defender board, which sets the indigency criteria, see
II. A Court‘s Inherent Authority to Appoint Counsel at County Expense
¶30 A crucial component of Lee‘s argument is his observation that, despite the creation of the SPD as the primary appointing authority of counsel for indigent defendants, a circuit court retains the inherent authority to appoint counsel at county expense. This argument is well taken. “The legislature cannot limit who is constitutionally entitled to an attorney. The creation of the public defender‘s office is not the exclusive means for assuring counsel to indigents and did not negate the inherent power of the court to appoint when the public defender declines to act.” Dean, 163 Wis. 2d at 513.
¶31 For example, in Dean, we concluded that although the circuit court did not err in finding the defendant statutorily ineligible for SPD-appointed counsel, the court was nonetheless required to “go beyond the public defender‘s determination ... and determine whether the ‘necessities of the case’ and the demands of ‘public justice and sound policy’ require appointing counsel.” Id. at 511, 513 (quoting Sparkman, 27 Wis. 2d at 98). And in Edwards, the SPD declined to appoint counsel after the defendant repeatedly fired his SPD-appointed attorneys, prompting our supreme court to conclude the circuit court possessed inherent authority to appoint standby counsel for the pro se defendant at county expense. Edwards, 137 Wis. 2d at 68-70.
¶32 A circuit court‘s inherent authority to appoint counsel has not always been well received by counties that must pay for such representation. Even as far back as Carpenter, counties have objected to paying the attorney fees of indigent criminal defendants, see Carpenter, 9 Wis. at 252, [*277], and Edwards concluded that the SPD could not be charged for court-appointed representation, see Edwards, 137 Wis. 2d at 82-85. As a result, the costs of court-appointed attorneys must be borne by the county of venue and are considered operating costs of circuit courts under
¶34 As additional authority, Lee relies on In re the Petition to Amend SCR 81.02, in which our supreme court considered an administrative rule petition to raise the rate paid to court-appointed attorneys from $70 to $100 per hour. Id. at 12. The court recognized at that time that, due in part to the low statutory rate paid to SPD-appointed private attorneys, “the SPD struggles to find counsel who will represent indigent criminal defendants.” Id. at 2-3. As a result, “costs for indigent defense, which should be borne by the state as a whole, are being shifted to individual counties” through the court-appointment process. Id. at 15.
¶35 Lee interprets In re the Petition to Amend SCR 81.02 as a mandate to appoint attorneys at county expense whenever there are delays in procuring SPD-appointed counsel. Lee relies on a single sentence in the body of the order: “If lawyers are unavailable or unwilling to represent indigent clients at the SPD rate of $40/hour, as is increasingly the case, then judges must appoint a lawyer under SCR 81.02, at county expense.” Id. at 15 (citing generally Dean, 163 Wis. 2d 503).
¶36 We do not agree with Lee‘s understanding that the supreme court‘s statement operates as a mandatory directive in cases like his. First, the operative language of the order (i.e., the “IT IS ORDERED” mandate sections) merely amended SCR 81.02(1) and (2) to reflect the rate increase for court-appointed attorneys. The supreme court rejected other proposed amendments to the rule. Id. at 18-19. Moreover, the supreme court cited Dean as authority for its statement regarding the necessity of court-appointed counsel. As we have discussed, Dean does not directly mandate the appointment of counsel under the circumstances present in this case.16 Instead, we view the order‘s matter-of-fact statement cited by Lee as being observational in nature.
¶37 The sentence of the order Lee highlights undoubtedly provides support for his
III. Properly Exercising Discretion When Making Sua Sponte Assessments of “Cause” Under WIS. STAT. § 970.03
¶38 Our declining to read a mandatory court-appointment requirement into the authorities Lee cites does not mean that the availability of court-appointed counsel should not factor into a circuit court‘s determination of whether there is good cause to extend the time limit for holding a preliminary hearing based on the SPD‘s failure to timely appoint counsel for the defendant. Under a prior version of
¶39 Addressing first the latter question, we perceive nothing improper about a circuit court (or a court commissioner) acting sua sponte to extend the time within which to hold the preliminary hearing. Our supreme court has held that identical “on motion” language in
¶40 Turning to the remaining question, one major focus of the oral argument in this case was which party bears the burden of showing cause under the circumstances here. The State correctly pointed out that, unlike the prosecutor in Selders, the prosecutor here had not requested an adjournment and, in fact, had not attended any of the review hearings. Nor was the preliminary hearing adjourned at Lee‘s insistence; to the contrary, he expressed dismay at the delays throughout the circuit court proceedings. Both parties acknowledged at oral argument the procedural oddity of the situation, where the court sua sponte moved to extend the time limit for the preliminary hearing and where no attorney was present for either party.
¶41 The question of who bears the burden of proof under a statute is a question of law. State v. West, 2011 WI 83, ¶21, 336 Wis. 2d 578, 800 N.W.2d 929. The moving party typically bears the burden of establishing the basis for the desired relief. Wolfe v. Wolfe, 2000 WI App 93, ¶15, 234 Wis. 2d 449, 610 N.W.2d 222 (“A party seeking judicial process to advance [his or her] position carries the burden of proof.“). When a circuit court on its own motion extends the time for holding the preliminary hearing, it displaces the typical adversary process in favor of its broader authority to efficiently manage its docket and do justice. See Larry, 311 Wis. 2d 326, ¶23.
¶42 So, how should a circuit court measure whether cause is present to extend the time limit for the preliminary examination under these circumstances? Only two cases appear to have analyzed a court‘s “good cause” finding: Selders and Crummel v. State, 46 Wis. 2d 348, 174 N.W.2d 517 (1970).18 In Crummel, our supreme court held that
¶43 Selders, which was a case decided under
¶44 In Lee‘s case, the repeated sua sponte extensions of the preliminary hearing deadline were based solely upon the SPD‘s failure to obtain counsel for him. Yet the various judicial actors who extended the time limit for that reason failed to consider many factors that might have had a bearing on that decision. For illustrative purposes, we endeavor to set forth a nonexhaustive list of such factors potentially applicable to Lee. Ultimately, we conclude that various exercises of discretion cannot be sustained in this case. In particular, the facts developed at the November 7, 2018 hearing should have given rise to a more probing inquiry as to the efficacy of appointing counsel for Lee at county expense so as to avoid even further delays.
¶45 Under the “erroneous exercise of discretion” standard, we will not set aside the circuit court‘s ruling if it appears from the record that the court applied the proper legal standard to the facts before it and, through a reasoned process, arrived at a reasonable conclusion. State v. Pal, 2017 WI 44, ¶13, 374 Wis. 2d 759, 893 N.W.2d 848. “[T]o determine whether the trial court properly exercised its discretion in a particular matter, we look first to the court‘s on-the-record explanation of the reasons underlying its decision.” Burkes v. Hales, 165 Wis. 2d 585, 590, 478 N.W.2d 37 (Ct. App. 1991). While this explanation need not be a lengthy process, the court‘s statements must “indicate to the reviewing court that the trial court ‘undert[ook] a reasonable inquiry and examination of the facts’ and the record shows that there is a reasonable basis for the ... court‘s determination.” Id. at 590-91 (quoting Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 471, 326 N.W.2d 727 (1982)).
¶46 While we acknowledge the deferential nature of our standard of review, given the facts of this case and the important liberty interests protected by the time requirements in
¶47 Lee‘s letter prompted the circuit court to hold a hearing on November 7, 2018. The court, quite appropriately, expressed concern with the amount of time it was taking to obtain counsel for Lee, and it requested that attorney O‘Neill from the SPD‘s office explain the reasons for the delay. O‘Neill represented that “at least 100, if not more” attorneys had been contacted by the SPD to represent Lee. She did not explain—and was not asked—what factors were causing the delay in obtaining counsel. When the court ultimately refused to take action on Lee‘s letter, it relied on the court commissioner‘s prior findings of good cause to extend the ten-day time limit for holding a preliminary hearing. As a result, the court‘s laudable conduct in holding a hearing to address the delay did not reveal much additional information regarding the reasons for the delay, nor did the court add to the commissioner‘s rationale in finding good cause to extend the time limit.
¶48 Thereafter, four additional review hearings were held over the course of more than one month before the SPD obtained counsel for Lee. At nearly every hearing, the presiding circuit court judge or court commissioner expressed dismay at the amount of time Lee had been awaiting the appointment of counsel. Yet, none of them made further inquiries of the SPD office regarding the reason for the delay or considered the possible prejudice Lee suffered by continuing to remain incarcerated without having a preliminary hearing. The commissioner for the first time on November 30, 2018, raised the notion of appointing an attorney for Lee at county expense. The commissioner, however, elected not to make such an appointment solely on the basis that “they‘re trying not to have to do that“—an apparent reference to the costs the county would incur by it appointing counsel.
¶49 The circuit court also made several relevant observations at the hearing on Lee‘s motion to dismiss following the SPD‘s appointment of attorney Lennon. The court stated that it was “very troubled by the length of time that it took” and that the delay in obtaining counsel was “extreme.” Although the court rejected Lee‘s assertion that it had been constitutionally required to appoint an attorney for him at county expense, it observed:
The Court also recognizes that there is a significant overlap in attorneys who accept State Public Defender appointments and those accepting court appointments in criminal cases. If the Court appointed attorneys in any but the most extreme cases, considerable resources would have to be devoted by the court to the task of securing attorneys to represent people in criminal cases, just as is occurring with the Public Defenders Office at this time, although certainly the higher rate of pay, in theory, would make it easier to do so.
When denying Lee‘s motion to dismiss, the court found it sufficient that the “magistrate presiding over Mr. Lee‘s review hearings found it appropriate to extend the time limits for good cause so under the circumstances, the statutory procedure was fulfilled.”
¶50 At oral argument, both parties lamented the inadequate state of the record. Lee argued the record fails to reflect a full and fair consideration of whether there was good cause to extend the time limit under
¶51 We agree with Lee that the record fails to reflect an adequate exercise of discretion at most, if not all, of the review hearings at which good cause under
¶52 Here, at least following the November 7, 2018 hearing, the need for additional inquiries into the necessity of the delay, as well as consideration of the alternative mechanism for appointing counsel, should have been obvious. At the November 7 hearing, attorney O‘Neill explained that despite contact with 100 or more attorneys over the course of nearly two months, no one willing to represent Lee had been located. There was no inquiry, however, regarding the reasons that more than 100 attorneys had declined such representation. Those reasons are important when determining whether there was good cause to extend the time limit for holding the preliminary hearing.
¶53 Counsel can be unavailable for an SPD appointment for a number of reasons. There may be a general or geographic lack of attorneys qualified to accept an appointment for a particular type of case. Moreover, attorneys may have conflicts of interest that preclude them from representing a particular defendant. An attorney‘s existing caseload may also prevent him or her from taking on another client. Or, as the circuit court here speculated, attorneys may not be willing to represent clients at the statutory SPD rate. Given the foregoing, 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
¶54 The circuit court should also consider alternate avenues of procuring counsel, like court appointment. It could be that this approach is no more fruitful. As the court here recognized, the group of attorneys who will accept SPD appointments may be the same group of attorneys who will accept a court appointment. Or, there may be no available attorneys who are qualified to provide competent representation in a given type of case. But if, as Lee suggests, attorneys are declining SPD appointment based on low pay rates, a higher court appointment rate might prove more compelling to private attorneys. Thus, the availability of court-appointed counsel may impact whether there is good cause to extend the time limit for the preliminary hearing under
¶55 Based on the comments of the circuit court and court commissioner, it seems that a court appointment might have been a viable alternative mechanism to obtain counsel for Lee. The only justification provided for not making such an appointment was the cost to the county. This strikes us as an incomplete balancing of interests. Among other considerations, and generally speaking, persons awaiting a preliminary hearing are held in county jails, see
¶56 Case law also establishes that the circuit court should consider the special circumstances of the defendant and whether the purpose of the preliminary hearing will be thwarted by the delay. Again, the preliminary hearing is designed “to ensure that people are not held for unreasonably long periods of time where the possibility exists that the State cannot muster even minimal proof in support of the allegations set out in the petition or complaint.” State v. Brissette, 230 Wis. 2d 82, 88, 601 N.W.2d 678 (Ct. App. 1999). Here, Lee‘s counsel at the initial appearance on September 11, 2018, stated that Lee was subject to an extended supervision hold. The fact that a defendant would (or could) remain in custody regardless of whether the preliminary hearing was delayed may be a factor bearing upon a finding of good cause in a particular case. “There is no need to safeguard against unreasonable intrusions on the person‘s liberty ... when he or she is already in custody pursuant to some other sentence.” Id.
¶57 The overall length of the delay is also a factor that must have significance to the determination of whether there is good cause under
¶58 Relatedly, and as was made explicit in Selders, a circuit court must consider the potential for prejudice to the defendant arising out of an extension of the deadline for holding the preliminary hearing. See Selders, 163 Wis. 2d at 614-15. In particular, Lee argues he “did not have counsel to investigate the charges, preserve evidence, or consult with when law enforcement sought a custodial interrogation.” The court should consider potential prejudice arising from one or more delays, including the potential that the defendant will be subjected to further evidence gathering by police while incarcerated and the possibility that the delay could compromise the defense or result in lost evidence, to the defendant‘s detriment.22
¶59 In all, we conclude that when a circuit court or a court commissioner sua sponte extends the time limit for holding a preliminary hearing under
[t]he process must be a rational one, and the rationality of it must be demonstrated on the record, showing that the conclusion was reached on facts of record or which are reasonably derived by inference from the record. Upon review an appellate court should be able to determine from the record whether discretion was in fact exercised and whether a reasonable judicial mind could have reached the conclusion it did.
Id. Most, if not all, of the review hearings in this case were insufficient to satisfy this standard; the later hearings are of particular concern, given the delays that had occurred by the time they were held.
IV. The Proper Remedy for Violations of WIS. STAT. § 970.03
¶60 A question remains regarding the remedy to which Lee is entitled. Lee argues—and reiterated at oral argument—that he believes dismissal of the criminal complaint with prejudice is warranted. He frames the erroneous exercise of discretion in this case as a failure to comply with a statutory mandate pertaining to the exercise of subject matter jurisdiction—i.e., a lack of competency. See Village of Trempealeau v. Mikrut, 2004 WI 79, ¶9, 273 Wis. 2d 76, 681 N.W.2d 190; see also id., ¶13 (noting “[m]any ‘loss of competency’ cases involve noncompliance with statutory time limitations“).
¶61 We disagree. Wisconsin law for decades has held that the failure to hold a preliminary hearing within the prescribed time results in a loss of personal jurisdiction, which requires only a dismissal without prejudice.23 In State ex rel. Klinkiewicz v. Duffy, 35 Wis. 2d 369, 375, 151 N.W.2d 63 (1967), our supreme court observed that a dismissal based on an unlawful adjournment of the preliminary hearing “does not preclude the state from initiating a new prosecution for the same offense absent the running of the statute of limitations.” The supreme court put it more pointedly in State v. Stoeckle, 41 Wis. 2d 378, 164 N.W.2d 303 (1969), when, upon observing that there is no time limit for a trial following bindover, the court asked rhetorically why the law should “require dismissal with prejudice for failure to hold a preliminary examination in the required time and yet demand no exact time period for the commencement of the trial itself?” Id. at 386-87. Other cases echo these holdings. See Armstrong v. State, 55 Wis. 2d 282, 285, 198 N.W.2d 357 (1972); Godard, 55 Wis. 2d at 190-91; Logan v. State, 43 Wis. 2d 128, 138-39, 168 N.W.2d 171 (1969).
¶62 Lee also presses constitutional claims regarding the alleged deprivation of his due process rights and the denial of his rights to counsel and to a speedy trial. The doctrine of constitutional avoidance counsels against our addressing constitutional questions if there is a sufficient statutory basis to decide the case. See Labor & Farm Party v. Elections Bd., State of Wis., 117 Wis. 2d 351, 354, 344 N.W.2d 177 (1984). To the extent that Lee would be entitled to any greater relief on his constitutional
See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (holding that we may decline to reach issues that are inadequately briefed). Here, the court should have dismissed the complaint against Lee without prejudice based solely on the failure to properly find good cause to delay the preliminary hearing. We therefore reverse the order and remand with directions for it to do so.
By the Court.—Order reversed and cause remanded with directions.
Notes
AlthoughThe preliminary examination shall be commenced within 20 days after the initial appearance of the defendant if the defendant has been released from custody or within 10 days if the defendant is in custody and bail has been fixed in excess of $500. On stipulation of the parties or on motion and for cause, the court may extend such time.
In the State‘s view, the totality of the record is what matters, as this appeal comes to us from the denial of Lee‘s motion to dismiss. The motion to dismiss, however, was predicated upon an alleged lack of good cause—or, at least, the erroneous exercise of discretion in finding good cause existed. We believe this situation requires an analysis of the exercise of discretion at the time it was made (i.e., at each of the review hearings in this case), not as a collective whole.
Our analysis in this regard is not an invitation to hold more sporadic review hearings than occurred in this case. Although
Lee‘s due process argument relies on Jauch v. Choctaw County, 874 F.3d 425 (5th Cir. 2017). Although the court discussed the evils of prolonged pretrial detention, it did so with the important qualification that the detention in that case occurred “without an arraignment or other court appearance.” Id. at 432. Here, a probable cause determination was made during Lee‘s initial appearance under State v. Koch, 175 Wis. 2d 684, 698-99, 499 N.W.2d 152 (1993), thereby satisfying the requirements of County of Riverside v. McLaughlin, 500 U.S. 44 (1991).
As for Lee‘s vague assertions that his rights to counsel and to a speedy trial were violated, he fails to develop key aspects of these claims. Lee was provided counsel during the initial appearance and the preliminary hearing, and, beyond his summary assertions, he fails to demonstrate that the period between those hearings was a “critical stage” of the proceeding to which the right to counsel would attach. See State v. Forbush, 2011 WI 25, ¶16, 332 Wis. 2d 620, 796 N.W.2d 741. Furthermore, as noted above, see supra ¶20 & n.6, the evidentiary record is incomplete regarding some of Lee‘s claims as to prejudice and what occurred before he was appointed counsel.