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State v. Suriano

Supreme Court of Wisconsin

April 27, 2017

State of Wisconsin, Plaintiff-Respondent,
Jack M. Suriano, Defendant-Appellant-Petitioner.

          SUBMITTED ON BRIEFS: ORAL ARGUMENT: December 2, 2016

         REVIEW of a decision of the Court of Appeals Reported at 369 Wis.2d 73, 879 N.W.2d 809 (WI Ct. App. 2016 - Unpublished. Affirmed.

         REVIEW of a decision of the Court of Appeals Circuit Door County (L.C. No. 13CM249) D. T. Ehlers, JUDGE

          For the defendant-appellant-petitioner, there were briefs and oral argument by Colleen Marion, assistant state public defender.

          For the plaintiff-respondent the cause was argued by Kevin M. LeRoy, deputy solicitor general, with whom on the brief was Daniel P. Lennington, assistant attorney general, Misha Tseytlin, solicitor general and Brad D, Schimel, attorney general.

          An amicus curiae brief was filed by Kelli S. Thompson, state public defender and Joseph N. Ehmann, regional attorney manager, Wisconsin State Public Defender. Oral argument by Joseph N. Ehmann.


         ¶1 We review whether Jack Suriano's actions, which caused three attorneys appointed by the State Public Defender to withdraw in rapid succession, constituted forfeiture of his right to counsel, and whether the right-to-counsel warnings and procedure this court recommended in State v. Cummings, 199 Wis.2d 721, 546 N.W.2d 406');">546 N.W.2d 406 (1996), should be made mandatory. We conclude that Suriano forfeited his constitutional right to counsel by repeatedly refusing to cooperate with his attorneys, constantly complaining about their performance, verbally abusing them, and triggering one lawyer's fear of a physical threat. Suriano's dilatory and manipulative game-playing frustrated the progression of this case and interfered with the proper administration of justice. We uphold the circuit court's[1] determination that Suriano forfeited his right to counsel, and we affirm the court of appeals decision.[2]We see no reason to change the forfeiture standard this court set forth in Cummings and decline Suriano's request to modify it. Instead, we reaffirm our holding that right-to-counsel warnings in forfeiture cases and the procedures suggested by the Cummings dissent are strongly recommended, but not required. We affirm.

         I. BACKGROUND

         ¶2 In October 2013, Suriano obstructed the Door County Sheriff's Department and sanitation officials who came to his home with a warrant to take a soil sample from the property. Police arrested Suriano, and he was charged with obstructing an officer, contrary to Wis.Stat. § 946.41(1) (2013-14).[3] Due to Suriano's indigence, the State Public Defender ("SPD") appointed Attorney Grant Erickson as his lawyer.

         ¶3 Less than one month later, Erickson filed a motion to withdraw telling the circuit court he and Suriano had "differing opinions and objectives for the handling and resolution of this case." At the hearing on the withdrawal motion, the circuit court asked Suriano if he opposed the motion. Suriano answered: "Well, I think we need to have some testimony on that. Maybe if I could put Grant on the stand and ask him a question or two. Get some information on the record here." Suriano asked Erickson what Erickson's end goal was and how it differed from Suriano's end goal. Erickson testified that, while his goal was to resolve the case, Suriano's goals included:

• To take depositions of all the parties and explore all contractual relationships;
• To prove his innocence;
• "[T]o explore every legal or even nonlegal aspect of this case" to make things difficult and frustrate "the legal system";
• "To be an ass"; and
• "[T]o make it difficult or frustrating for the court system to proceed" because Suriano believed he was improperly charged.

         After this testimony, the circuit court again asked Suriano if he opposed Erickson's motion. Suriano did not directly answer the court's question; instead, he responded: "Anybody would probably be better so --." Interpreting this answer as a "no, " the circuit court granted the motion but warned Suriano that it "did not anticipat[e]" changing the February 2014 pretrial and March 2014 trial dates that remained on the calendar.

         ¶4 The SPD gave Suriano a second attorney, Linda Schaefer, who very quickly moved to withdraw, averring that "a significant conflict ha[d] developed" so she could "no longer effectively represent Mr. Suriano." At the February 2014 pretrial hearing, the circuit court addressed Schaefer's motion and asked Suriano if he wanted to comment on it. Suriano said "No, " and the circuit court granted the motion. This second withdrawal clearly bothered the circuit court, prompting a warning for Suriano:

[T]he other thing I would suggest, Mr. Suriano, you do is call the public defender's office. You will now be on your third attorney appointed with the public defender's office. I think they have a three strike rule. Talk to them about that. . . . [W]hen individuals go through three attorneys, they don't appoint an attorney any longer so maybe you need to call them and talk to them about that also, sir, because, as I said, you are now going to be on your third attorney with the public defender's office.

         When discussing the existing trial date, Suriano asked the circuit court to send communications directly to him "rather than sending it to someone who won't share it with me, " but the court explained that "all correspondence and communication from the Court goes through your attorney, not to you directly."

         ¶5 The SPD appointed Raj Kumar Singh as Suriano's third attorney. At an April 2014 status conference, Singh told the circuit court:

• Suriano insisted Singh remind the court Suriano refused to enter his own plea at his initial appearance and instead stood "mute";
• Suriano wanted the case dismissed;
• Great "discord" already existed between Suriano and Singh on "the law that relates to this case"; and
• Suriano was completely dissatisfied with Singh's "performance so far as his lawyer, " causing Singh to think Suriano "really wants to represent himself."

         Then, Singh asked the circuit court to question "Suriano directly about whether or not he wants me to continue as his lawyer." Singh requested the circuit court's help to make sure Suriano understood:

That if he wants anybody, whoever it is, let's say it's me to represent him as an attorney, then he's reserving three things for himself: How to plead; whether or not to waive his right to a jury. Now then there is more to that than that, but that's his part. And whether or not to testify in his own defense or remain silent. He needs to understand, other than those three things, all of the other decisions are left to the attorney, if you agree. And with that understanding, does he want to have an attorney representing him and, specifically does he want me because I have reason to doubt that he does want me and I have reason to doubt that he wants an actual attorney in general.

         ¶6 The circuit court then asked Singh about the SPD's "three-strike" rule-that is, whether the SPD would appoint another attorney when a defendant has already had three SPD-appointed attorneys who withdrew.[4] Singh responded he could not speak for the SPD, but he had "grave doubts" about whether the SPD would appoint a fourth attorney if Suriano fired Singh. Singh said everyone should "assume that if I end up off the case he's going to have to either represent himself [or] get a lawyer on the economy." The court then specifically asked Suriano if he wanted Singh to continue as his lawyer. Suriano did not directly answer the court's question; instead, he rattled off a series of complaints about Singh, claimed he had not "received any value" from the SPD, and contended that, although his case should be "very easy to win on dismissal, " none of his lawyers would pursue it.

         ¶7 Suriano proceeded to ask the circuit court how he could get a court-appointed attorney. The court explained how the fees and billing work with a court-appointed attorney, but told Suriano it would not appoint an attorney if Suriano was eligible for a SPD appointment. The circuit court again warned Suriano that, if he dismissed three SPD-appointed lawyers, the SPD would not give him another one.

         ¶8 Suriano asked whether the circuit court would appoint counsel if he ended up "getting dumped by the public defender's office." The court cautioned: "I will take up your petition when it's filed. I'm not saying I will grant it or I won't grant it. I'm just telling you that's the procedure and that's how the case gets billed." Then the court again asked Suriano if he wanted "to get rid" of Singh as his attorney. Suriano again refused to answer the question directly with a yes or no. Instead, he: (1) criticized Singh's representation as not benefitting him; (2) said he "hesitate[ed] to go around firing people, especially because there might be consequences"; and (3) suggested Singh withdraw because that might make Suriano look better to the SPD. Attorney Singh explained he was not filing a motion to withdraw but wanted to make a record on the issues that arose since his appointment:

• He was unable to speak to Suriano by phone, as Suriano claimed he did not have a phone;
• Suriano refused to meet in person with him on several occasions;
• He had sent many letters to Suriano and received many emails from Suriano, although he told Suriano it is not his practice to confer with clients by email;
• Suriano finally accepted that the law does not allow for depositions in his case, but Suriano made Singh prove this by showing him a copy of the statute instead of taking his lawyer's word;
• Singh saw no merit in the motion to suppress Suriano wanted to file; and
• Suriano did not want a trial and wanted the charge dismissed.

         ¶9 After a brief back and forth with the circuit court in which Suriano insisted that it was his attorney who wished to withdraw, the court stopped the exchange: "I'm done going around in circles here this afternoon. We're moving forward with this case. It's now going on seven months old. It needs to be scheduled and resolved one way or another." Singh then told the court Suriano forbade him from filing a motion to withdraw without Suriano's preapproval, Suriano wanted to make all the lawyering decisions, and Suriano just wanted Singh "to be his clerk typist." Singh urged the court to insist Suriano "make a decision right now does he want to represent himself or does he want [Singh] to represent him." When the court asked him once again, Suriano talked around the issue and suggested the court schedule another hearing rather than the trial. The court then allowed Singh to try to get a direct answer from Suriano by asking, "Mr. Suriano, would you like me to go forward as your attorney on this case knowing what I have informed you over the past weeks of our relationship? Yes or no, please." Suriano refused to answer yes or no, responding, "I haven't considered all of that." The court ruled Suriano's refusal to answer meant Singh would remain as his lawyer. The court scheduled the jury trial for June 2014.

         ¶10 One month later, Singh filed a motion to withdraw, titled, "Defendant's Motion for an Order of Attorney's Withdrawal." He explained to the circuit court that Suriano emailed the SPD Director of Appointments and accused Singh of being a liar and refusing to communicate, investigate, seek discovery, or prosecute a motion to suppress. Suriano's email included disparaging remarks and accusations against Singh, ending with: "I have not received legitimate representation. I need a real attorney." In an email directly to Singh, Suriano leveled a similar attack. Singh told the court:

He will not cooperate with me at all. He wants to micromanage what I do. He wants to basically have me be, figuratively speaking, the fingers on his hand, and I've tried to explain to him that's simply not acceptable. It's not acceptable to anybody within the practice of law. I can't do that. I have to be like a medical doctor. I have to take full responsibility for what I do. I have repeatedly explained to Mr. Suriano that he has -- if he wishes to be represented, if that's the case, then he has three decisions and only three that are kept within his purview: How to plead, whether or not to testify in his own defense, and whether or not to try ...

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