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State v. Zimbal

Supreme Court of Wisconsin

June 14, 2017

State of Wisconsin, Plaintiff-Respondent,
Edward J. Zimbal, Defendant-Appellant-Petitioner.

          ORAL ARGUMENT: December 2, 2016

         REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 371 Wis.2d 564, 884 N.W.2d 535 (2016 - Unpublished)

         REVIEW of an opinion of the Court of Appeals. Reversed and cause remanded.

         Circuit Court Brown County L.C. Nos. 2010CF706 & 2011CF231 William M. Atkinson Judge

          For 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.

          For 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.

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


         ¶1 Petitioner, Edward J. Zimbal ("Zimbal"), seeks review of an unpublished court of appeals opinion affirming a circuit court order denying his postconviction motion.[1] The court of appeals determined that Zimbal did not timely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.

         ¶2 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.

         ¶3 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.[2] 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.


         ¶4 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.

         ¶5 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.

         ¶6 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.[3]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."[4] It remanded Zimbal's cases with directions to vacate the judgments of conviction and grant Zimbal's motion to withdraw his pleas.[5]

         ¶7 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)[6] after his cases were remitted to the circuit court following the successful appeal of the denial of his Bangert motion.

         ¶8 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).

         ¶9 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."

         ¶10 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 conference:

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 himself.
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.

         ¶11 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 part:

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!

         ¶12 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 proceed:

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.

         ¶13 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 him.

         ¶14 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.

         The 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)."

         ¶15 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.

         ¶16 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.

         ¶17 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."[7] II

         ¶18 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.

         ¶19 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., ¶44.

         ¶20 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., ΒΆ45. Statutory language is interpreted in the context in which it is used, in relation ...

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