ARGUMENT: December 2, 2016
OF A DECISION OF THE COURT OF APPEALS Reported at 371 Wis.2d
564, 884 N.W.2d 535 (2016 - Unpublished)
of an opinion of the Court of Appeals. Reversed and cause
Court Brown County L.C. Nos. 2010CF706 & 2011CF231
William M. Atkinson Judge
the defendant-appellant-petitioner, there were briefs filed
by and oral argument by Jeremy A. Newman, assistant state
public defender, with whom on the briefs was Tristan S.
Breedlove, assistant state public defender.
the plaintiff-respondent, there was a brief filed by and an
oral argument by Nancy A. Noet, assistant attorney general,
with whom on the brief was Brad D. Schimel, attorney general.
amicus curiae brief was filed on behalf of Wisconsin State
Public Defender by Joseph N. Ehmann, regional
attorney manager, and Kelli S. Thompson, state
WALSH BRADLEY, J.
Petitioner, Edward J. Zimbal ("Zimbal"), seeks
review of an unpublished court of appeals opinion affirming a
circuit court order denying his postconviction
motion. The court of appeals determined that
Zimbal did not timely invoke his right to substitution of a
circuit court judge. It reasoned that his request fell
outside of the statutory 20 day time limit that begins to run
on the date of the court of appeal's remittitur following
a prior successful appeal in this case.
Zimbal asserts that the court of appeals erred, contending
that his substitution request was timely because: (1) prior
to having an attorney appointed he made an oral request for
substitution in the circuit court and a written request in
the court of appeals; (2) the circuit court instructed him
that the filing of a motion for substitution should be
deferred until after an attorney was appointed; and (3) his
trial counsel formalized the substitution request 17 days
after being appointed.
We conclude that under the unique circumstances presented
here, when a defendant follows a circuit court's
instruction to defer filing a request for substitution of a
judge until after counsel is appointed, that strict
compliance with the 20 day deadline for filing a request for
substitution after remittitur is not warranted. Although
Zimbal's motion for substitution of judge was not timely
filed under the statute, it was timely filed in this case
because the circuit court in essence extended the deadline
until after his trial counsel was appointed. Zimbal complied
with the extended deadline when he filed a motion for
substitution of judge within 20 days after his trial counsel
was appointed. Accordingly, we reverse the decision of the
court of appeals and remand to the circuit court to vacate
the judgments of conviction and for a new trial.
The underlying facts in this case are not in dispute.
Zimbal's petition for review arises from two criminal
cases. In the first case, Zimbal was charged with stalking,
disorderly conduct, and sending an obscene computer message.
He was charged with stalking and two counts of felony bail
jumping in the second case.
Zimbal entered a no contest plea to one count of stalking in
the former case and one count of bail jumping in the latter,
with the remaining counts dismissed or dismissed and read-in
at sentencing. The circuit court sentenced Zimbal to
consecutive maximum sentences, totaling nine years and six
months with four years and six months of initial confinement
and five years of extended supervision.
After sentencing, Zimbal filed a Bangert motion to withdraw
his pleas and vacate his conviction, alleging that his pleas
were not knowingly, intelligently and voluntarily
entered.The circuit court denied the motion but the
court of appeals reversed, determining that the "court
did not utilize any of the methods identified in Bangert for
establishing Zimbal's understanding of the nature of the
offense." It remanded Zimbal's cases with
directions to vacate the judgments of conviction and grant
Zimbal's motion to withdraw his pleas.
Although the merits of Zimbal's Bangert motion are not at
issue here, its resolution on appeal is relevant to the
procedural posture of this case. At issue is whether Zimbal
made a timely request for substitution of judge pursuant to
Wis.Stat. § 971.20(7) (2013-14) after his cases were
remitted to the circuit court following the successful appeal
of the denial of his Bangert motion.
A request for substitution of judge following appeal may be
filed within 20 days after the filing of the remittitur by
the appellate court:
If an appellate court orders a new trial or sentencing
proceeding, a request under this section may be filed within
20 days after the filing of the remittitur by the appellate
court, whether or not a request for substitution was made
prior to the time the appeal was taken.
Wis. Stat. § 971.20(7).
After Zimbal's appeal on the Bangert motion concluded,
his cases were remitted to the circuit court on October 8,
2013. On October 7, 2013, the circuit court continued a
status hearing that had been held over from October 4, 2013.
Zimbal appeared at the status conference by telephone from
prison. Attorney Jeff Cano, the Regional Attorney Manager for
the State Public Defender ("SPD") in Green Bay, was
present in the courtroom. He advised the court that when the
government returned Zimbal to the county, the SPD "would
discuss with him the appointment of an attorney."
At the October 7, 2013, status hearing, Zimbal made a request
for recusal of the circuit court judge, which was denied
"at this time." The court allowed that it would
give Zimbal's attorney an opportunity to do research on
the recusal issue and address the request at the status
ZIMBAL: I'm also asking that you recuse yourself because
there is no way you can be impartial and/or [un]bias[ed].
THE COURT: Since you probably haven't done any research,
I'll let your attorney do research on that issue and you
can address that at the status conference. I'll deny your
request at this time.
ZIMBAL: I spoke to Attorney Hirsch this morning, and she said
absolutely you can't do that. The Judge must recuse
THE COURT: All right. He can provide his authority for that
at the status conference, and he can send it by letter
beforehand, by the way, if you want it addressed beforehand.
That same day, Zimbal also wrote a letter to the court of
appeals requesting assistance because the circuit court
denied his oral request for recusal. It provided in relevant
I asked Attorney Hirsch if I could ask Judge Atkinson to
recuse himself from my case based on him being biased and
[not] impartial. She said absolutely. If you ask as the
defendant he has to recuse himself especially after a[n]
appeal from his Court.
. . .
There is no way Judge Atkinson can be impartial and I know
that since I asked him to recuse himself from this case. He
has to. Can you please look into this for me as I feel you
need to be aware of this.
. . .
Yes I want him off my case and feel this is critical to me!
The court of appeals replied to Zimbal's letter on
October 17, 2013, copying Judge Atkinson and the Clerk of the
Circuit Court. It denominated his request as one for
"substitution or recusal" of a judge and explained
that it no longer had jurisdiction over his cases because the
cases had been remitted to the circuit court. The reply
recommended that he consult with trial counsel about how to
The court has asked me to respond to your October 7, 2013
letter regarding substitution or recusal of Judge Atkinson.
The records in these cases ha[ve] been remitted to the
circuit court and this court has no jurisdiction after
remittitur. Therefore, the court will take no action on your
letter. We suggest that you consult with your trial counsel
about how to proceed.
When the State failed to produce Zimbal for a scheduled
status hearing on October 15, and counsel had not yet been
appointed, the circuit court rescheduled the status hearing
to October 29, 2013. Zimbal appeared at that status
conference but without counsel. The circuit court
acknowledged that Zimbal was unrepresented and adjourned the
hearing until an attorney could be appointed to represent
On November 1, 2013, the State Public Defender appointed
Zimbal new trial counsel who subsequently filed a request for
substitution of judge seventeen days later, on November 18,
2013. It asserted:
Zimbal made a written request for substitution before the
statutory deadline, however he was not represented by counsel
at the time and mistakenly sent the request to the Court of
Appeals. Undersigned counsel was appointed by the State
Public Defender on November 1, 2013.
. . .
Zimbal requests that the Court deem this motion timely,
because counsel was only appointed after the statutory
deadline had elapsed.
circuit court denied Zimbal's November 18, 2013, request
for substitution, concluding that the "[d]efendant did
not comply with Wis. Stat. § 971.20(7)."
After Zimbal's request for substitution was denied, he
went to trial on the original charges. A jury found Zimbal
guilty of three counts in the first case, and three counts in
the second case. The circuit court again sentenced Zimbal to
consecutive maximum sentences, this time totaling nineteen
years and six months, with nine and a half years of initial
confinement and ten years of extended supervision.
Zimbal filed a postconviction motion requesting a new trial
in the interest of justice or, in the alternative, a new
trial due to ineffective assistance of counsel. His
postconviction motion did not include a claim that any of
Zimbal's attorneys had been ineffective for failing to
file a timely request for substitution of judge. The circuit
court denied Zimbal's postconviction motion.
On appeal, Zimbal raised only one issue: whether the circuit
court erred in denying his request for substitution of judge.
In an unpublished per curium opinion, the court of appeals
affirmed the circuit court order denying Zimbal's motion
for substitution of judge. It concluded that because
"Zimbal failed to comply with Wis.Stat. §
971.20(7), he did not properly invoke his right to
substitution of a circuit court judge and his motion was
properly denied." II
At issue is whether Zimbal made a timely request for
substitution of judge. We are called upon to interpret and
apply relevant statutes. The interpretation and application
of a statute present questions of law that we decide
independently of the decisions rendered by the circuit court
and the court of appeals. State v. Harrison, 2015 WI
5, ¶37, 360 Wis.2d 246, 858 N.W.2d 372.
Statutory interpretation begins with examining the language
of the statute. State ex rel. Kalal v. Cir. Ct. for Dane
Cty., 2004 WI 58, ¶45, 271 Wis.2d 633, 681 N.W.2d
110. The purpose of statutory interpretation is to determine
what the statute means so that it may be given its
"full, proper, and intended effect." Id.,
We give statutory language "its common, ordinary, and
accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning." Id., ¶45. Statutory
language is interpreted in the context in which it is used,
in relation ...