State v. Edward J. Zimbal , 375 Wis. 2d 643 ( 2017 )

2017 WI 59SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1292-CR and 2015AP1293-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Edward J. Zimbal,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 371 Wis. 2d 564, 884 N.W.2d 535(2016 – Unpublished)
OPINION FILED: June 14, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 2, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Brown
JUDGE: William M. Atkinson
JUSTICES:
CONCURRED: ROGGENSACK, C.J. concurs, joined by R.G.
BRADLEY, J. and KELLY, J.(opinion filed).
ZIEGLER, J. concurs (opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
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.
2
2017 WI 59NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 2015AP1292-CR & 2015AP1293-CR
(L.C. Nos. 2010CF706 & 2011CF231)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. Jun 14, 2017
Edward J. Zimbal, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of an opinion of the Court of Appeals. Reversed and
cause remanded.
¶1 ANN 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("Zimbal"), seeks review of an unpublished court of appeals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.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
1
State v. Zimbal, Nos. 2015AP1292-CR & 2015AP1293-CR,
unpublished slip op., (Wis. Ct. App. July 6, 2016) (affirming
order entered by the circuit court for Brown County, William M.
Atkinson, J., presiding).
Nos. 2015AP1292-CR & 2015AP1293-CR
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
2
There is nothing wrong with this strict compliance
substitution statute, Wis. Stat. § 971.20(7), and we should not
rewrite it by adding such indefinite concepts as excusable
delay, good faith and prejudice. Establishing such a rule would
tend to unravel what is meant to be a narrowly circumscribed
statute. See, e.g., State v. Austin, 171 Wis. 2d 251, 257, 490
N.W.2d 780 (Ct. App. 1992). Nevertheless, the concurrence of
C.J. Roggensack would do just that.
(continued)
2
Nos. 2015AP1292-CR & 2015AP1293-CR
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
The concurrence would create a new——albeit amorphous——
category for the application of equitable tolling in this
context. Explaining that "[e]quitable tolling focuses on
whether there was an excusable delay by the plaintiff," it
reasons that "[t]he doctrine may be applied when a claimant has
made a good faith error and there is an absence of prejudice to
others if it is applied." Chief Justice Roggensack's
concurrence, ¶12 (citation and quotation omitted).
Under the approach of the concurrence, courts would have to
determine when the delay is excusable. What constitutes a good
faith showing and will any level of prejudice suffice? Is the
new rule to be applied prospectively or retroactively? Given
that the rule of the concurrence pertains only to unrepresented
defendants, are there equal protection considerations? See
concurrence, ¶19. What happens when a represented defendant
also can show excusable delay, good faith and no prejudice?
In the past this court and the court of appeals have
established categorical exceptions to the rule of strict
adherence to Wis. Stat. § 971.20. See, e.g., Baldwin v. State,
62 Wis. 2d 521, 530, 215 N.W.2d 541 (1974) (an exception when a
county's calendaring procedure prevents a defendant from timely
knowing the assigned judge); State ex rel. Tessmer v. Cir. Ct.
Branch III, In & For Racine Cty., 123 Wis. 2d 439, 443, 367
N.W.2d 235 (Ct. App. 1985) (an exception when the traffic and
misdemeanor court's procedures prevented a defendant from timely
knowing the assigned judge); State ex rel. Tinti v. Cir. Ct. for
Waukesha Cty., Branch 2, 159 Wis. 2d 783, 788, 464 N.W.2d 853(Ct. App. 1990) (an exception when an intake system does not
provide adequate notice of the assigned judge).
None of these cases has expanded the exception to invoke
the application of the doctrine of equitable tolling and we
likewise decline to do so here. Instead, we limit our decision
to the unique facts of this case.
3
Nos. 2015AP1292-CR & 2015AP1293-CR
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.
I
¶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
3
See State v. Bangert, 131 Wis. 2d 246, 275-76, 389
N.W.2d 12 (1986).
4
Nos. 2015AP1292-CR & 2015AP1293-CR
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
4
State v. Zimbal, Nos. 2012AP2234-CR & 2012AP2235-CR,
unpublished slip op., ¶9 (Wis. Ct. App. Sept. 4, 2013).
5
Id., ¶1.
6
All subsequent references to the Wisconsin Statues are to
the 2013-14 version unless otherwise indicated.
5
Nos. 2015AP1292-CR & 2015AP1293-CR
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:
6
Nos. 2015AP1292-CR & 2015AP1293-CR
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
7
Nos. 2015AP1292-CR & 2015AP1293-CR
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
8
Nos. 2015AP1292-CR & 2015AP1293-CR
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
7
State v. Zimbal, Nos. 2015AP1292-CR & 2015AP1293-CR,
unpublished slip op., ¶1 (Wis. Ct. App. July 6, 2016).
9
Nos. 2015AP1292-CR & 2015AP1293-CR
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., ¶45. Statutory language is
interpreted in the context in which it is used, in relation to
the language of surrounding or closely-related statutes." Id.,
¶46.
III
¶21 In determining whether Zimbal's request for
substitution of judge was timely, we must consider both the
plain meaning of the substitution statute and whether, under the
circumstances, Zimbal was provided with an opportunity to
exercise the statutory right to substitution. Zimbal asserts
that his request for substitution of judge 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.
¶22 Pursuant to Wis. Stat. § 971.20(7), a request for
substitution of judge following appeal must be filed within 20
days after remittitur:
10
Nos. 2015AP1292-CR & 2015AP1293-CR
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.
Zimbal argues first that he complied with the deadline set forth
in the statute. He asserts that his request for substitution of
judge was timely because he requested substitution orally in the
circuit court and in writing in the court of appeals before the
20 day deadline had passed.
¶23 We pause to briefly address Zimbal's use of the word
"recuse," rather than "substitute" in his oral request to the
circuit court and subsequent written request to the court of
appeals. The State asserts that Zimbal did not comply with Wis.
Stat. § 971.20(7) because both his oral request and his letter
to the court of appeals requested Judge Atkinson's recusal,
rather than a substitution of judge.
¶24 A motion for recusal is distinct from a request for
substitution of judge. Pursuant to Wis. Stat. § 971.20, a
criminal defendant has the right to substitute a judge without
providing a reason for the requested substitution. Harrison,
360 Wis. 2d 246, ¶39. Once a request for substitution is filed
"in proper form and within the proper time, the judge whose
substitution has been requested has no authority to act further
in the action except to conduct the initial appearance, accept
pleas and set bail." Wis. Stat. § 971.20(9). In contrast, a
motion for recusal requires a defendant to overcome the
presumption that a judge has acted fairly, impartially, and
11
Nos. 2015AP1292-CR & 2015AP1293-CR
without bias. See State v. Goodson, 2009 WI App 107, ¶8, 320
Wis. 2d 166, 771 N.W.2d 385.
¶25 Although a motion for recusal is distinct from a
request for substitution of judge, this court has previously
allowed a request for substitution when the defendant used the
word "recuse" in his filings. See Harrison, 360 Wis. 2d 246,
¶26. In Harrison, the defendant used phrases like "change of
judge" and "recusal" in some of his filings, rather than
"substitution." Id. Nevertheless, this court determined that
"the defendant's goal was clear: He did not want [the judge] on
the instant case or the other criminal case in which he was
being charged." Id. The same is true here.
¶26 Zimbal used the word "recuse," but it was clear that
he did not want the circuit court judge to preside over his
criminal cases. Before the circuit court, Zimbal orally stated
that "[t]he Judge must recuse himself." His written request to
the court of appeals provided that "I want [the judge] off my
case and feel this is critical to me!" The court of appeals
responded to Zimbal's letter by characterizing it as a letter
"regarding substitution or recusal of Judge Atkinson."
¶27 As Harrison indicates, Zimbal's request could be
liberally construed as a request for substitution. See
Harrison, 360 Wis. 2d 246, ¶26. Accordingly, we analyze
Zimbal's oral request in the circuit court and written request
to the court of appeals as a request for substitution of judge.
¶28 We begin our statutory analysis with the language of
the statute. Kalal 271 Wis. 2d 633, ¶45. Subsection (7)
12
Nos. 2015AP1292-CR & 2015AP1293-CR
provides that a request for substitution of judge must be
"filed." Wis. Stat. § 971.20(7). In this context, the common,
ordinary and accepted meaning of the word filed is "to enter (a
legal document) on public official record." Am. Heritage
Dictionary of the English Language 680 (3rd ed. 1992). With
this definition in mind, we look next to other sections of the
statute to inform our analysis.
¶29 Statutory language is interpreted in the context in
which it is used, in relation to the language of surrounding or
closely-related statutes. Kalal 271 Wis. 2d 633, ¶46. Several
other subsections of the same statute explicitly state that
requests for substitution have to be "written." See Wis. Stat.
§§ 971.20(3)(b), (4) and (5). Likewise, § 971.20(10) sets forth
the form for a substitution of judge request, which provides
that a request be signed and dated by the defendant or his
attorney:
A request for substitution of a judge may be made in
the following form:
STATE OF WISCONSIN
CIRCUIT COURT
... County
State of Wisconsin
vs.
...(Defendant)
Pursuant to s. 971.20 the defendant (or defendants)
request (s) a substitution for the Hon. .... as judge
in the above entitled action.
Dated ..., ... (year).
....(Signature of defendant or defendant's attorney)
13
Nos. 2015AP1292-CR & 2015AP1293-CR
This proffered statutory form further supports our determination
that a request for substitution must take the form of a written
document, rather than an oral request.
¶30 We consider next whether Zimbal's October 7, 2013,
letter to the court of appeals complied with the statutory
requirements of Wis. Stat. § 971.20. The plain language of the
statute requires that a request for substitution of judge be
filed with the circuit court. See Wis. Stat. §§ 971.20(3), (4),
(5), (8) and (10). Additionally, as the court of appeals
informed Zimbal, it did not have jurisdiction over his case
after the remittitur was filed with the circuit court. See
State ex rel. Fuentes v. Wisconsin Ct. App., District IV, 225
Wis. 2d 446, 452-53, 593 N.W.2d 48 (1999).
¶31 Accordingly, neither Zimbal's oral request in the
circuit court nor his written request to the court of appeals
complied with the statutory requirements because a request for
substitution of judge pursuant to Wis. Stat. § 971.20(7) must be
filed in writing with the circuit court.
¶32 Zimbal argues that even if his oral request in the
circuit court and written request to the court of appeals are
statutorily insufficient, his attorney's written request filed
with the circuit court on November, 18, 2013, should be deemed
timely. He contends that because the circuit court told him
that the issue of substitution would be deferred until counsel
was appointed, he complied with the circuit court's instructions
for filing a motion for substitution.
14
Nos. 2015AP1292-CR & 2015AP1293-CR
¶33 After Zimbal made his oral request for recusal, the
circuit court told Zimbal that "[s]ince 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 responded that he had
spoken with his appellate counsel and she said "the Judge must
recuse himself." Again, the circuit court told Zimbal that his
attorney could "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." Likewise, the court of
appeals responded to Zimbal's letter by telling him to "consult
with your trial counsel about how to proceed."
¶34 Trial counsel's November 18, 2013, filing for
substitution of judge requested that it be deemed timely because
he was not appointed until after the statutory deadline had run.
It provided in relevant part:
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.
¶35 The State responds that Zimbal could have filed a
written motion for substitution because he had counsel prior to
the appointment of his public defender on November 1, 2013.
15
Nos. 2015AP1292-CR & 2015AP1293-CR
According to the State, Zimbal was represented by Attorney Cano
(the Regional Attorney Manager for the State Public Defender in
Green Bay) who appeared in his administrative capacity at two
status hearings on October 4, 2013, and October 7, 2013. The
State also emphasizes Zimbal indicated that before the hearing
he spoke with Attorney Hirsch, his state appointed appellate
counsel. Additionally, the State asserts Attorney Hirsch should
have filed the request for substitution of judge on Zimbal's
behalf.
¶36 The record indicates that after the remittitur was
filed, Zimbal was not represented by trial counsel until
November 1, 2013. Attorney Hirsch was Zimbal's appointed
appellate counsel and did not appear on his behalf after the
appeal of his Bangert motion was concluded. Although Attorney
Cano appeared in the circuit court in his administrative
capacity, he did not act as Zimbal's counsel.8 It was Zimbal,
8
The Office of the State Public Defender ("SPD") is a
statutory creation and its attorneys and employees actions are
governed by statute and administrative code rules. See Wis.
Stat. Ch. 977; Wis. Admin. Code Chs. PD 1-8.
According to the amicus brief filed by the SPD, it has four
separate divisions: an Administrative Services Division, Trial
Division, Appellate Division and an Assigned Counsel Division.
It advises that "[r]esponsibility for determining client
eligibility and appointing counsel in SPD staff and private bar
cases is delegated to attorney managers and representatives in
36 Trial Division offices and two Appellate Division offices."
(continued)
16
Nos. 2015AP1292-CR & 2015AP1293-CR
not Attorney Cano, who made the arguments before the circuit
court at the October 7, 2013, status hearing.
¶37 Additionally, the circuit court treated Zimbal as a
pro se litigant until the newly appointed counsel, Attorney
Hanes, appeared at the November 1, 2013, hearing. It denied
Zimbal's oral request for a new judge on October 7, 2013,
stating "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 was also unrepresented at an
October 29, 2013, hearing during which the circuit court stated
that "I think we've been able to determine there is no one
appointed for you at this time."
¶38 In the alternative, the State argues that even if
Zimbal was unrepresented, he could have filed a written request
for substitution despite the circuit court's instructions that
he wait until counsel was appointed. It relies on the court of
appeals' reasoning that the circuit court's instructions did not
make it "impossible" for Zimbal to comply with the statute:
While Judge Atkinson's comments coupled with delays in
the appointment of counsel for Zimbal may have lead
Zimbal to conclude the court would not grant his
request within twenty days of remittitur, nothing
Additionally, the SPD's amicus brief explains that within a
single prosecution, appellate representation is considered a
separate case from trial representation. Wis. Admin. Code § PD
2.11(1). Separate fees are imposed for trial and appellate
representation. Wis. Admin. Code §§ PD 6.01 and 6.02.
Likewise, certification and hiring requirements for trial and
appellate cases are separate and distinct. Wis. Admin. Code
§ PD 1.04.
17
Nos. 2015AP1292-CR & 2015AP1293-CR
prevented Zimbal from complying with the requirement
for filing a written request within twenty days of
remittitur. Compliance with the statute was not
impossible.9
¶39 According to the State, the substitution statute
demands strict adherence to its terms because Wis. Stat.
§ 971.20(2) requires that the right to substitution "shall be
exercised as provided in this section." It further relies on
the court of appeals decision in State v. Austin, 171
Wis. 2d 251, 257, 490 N.W.2d 780 (Ct. App. 1992), which reasoned
that "deviation from the requirements [of Wis. Stat.
§ 971.20(11)] would allow for substantial problems that are
prevented by strict adherence to the statute."
¶40 Here we make an exception to the rule of strict
adherence because the circuit court directed that the
substitution issue would again be addressed after trial counsel
was appointed and Zimbal followed that directive. This limited
exception comports with our prior case law allowing for an
exception when a government-created obstacle prevents a
defendant from complying with the statutory deadline.
¶41 In the Baldwin-Tessmer-Tinti arraignment cases
involving Wis. Stat. § 971.20(4), this court and the court of
appeals allowed an exception to the rule of strict adherence to
the statutory filing deadlines when a criminal defendant is
arraigned before he receives notice of which judge will hear his
9
State v. Zimbal, Nos. 2015AP1292-CR & 2015AP1293-CR,
unpublished slip op., ¶8 (Wis. Ct. App. July 6, 2016).
18
Nos. 2015AP1292-CR & 2015AP1293-CR
case. See Baldwin v. State, 62 Wis. 2d 521, 530-532, 215
N.W.2d 541 (1974); See also State ex rel. Tessmer v. Cir. Ct.
Branch III, In & For Racine Cty., 123 Wis. 2d 439, 443, 367
N.W.2d 235 (Ct. App. 1985); State ex rel. Tinti v. Cir. Ct. for
Waukesha Cty., Branch 2, 159 Wis. 2d 783, 790, 464 N.W.2d 853(Ct. App. 1990).
¶42 Pursuant to Wis. Stat. § 971.20(4), "[a] written
request for the substitution of a different judge for the judge
originally assigned to the trial of the action may be filed with
the clerk before making any motions to the trial court and
before arraignment." In Baldwin, the defendant argued that when
the circuit judge originally assigned to the case voluntarily
disqualified himself after arraignment, Wis. Stat. § 970.20should have been construed to permit the defendant the
opportunity to file a request for substitution of judge after
the case was reassigned. 62 Wis. 2d at 529. The Baldwin court
agreed.
¶43 The court observed that the requirement that a request
for substitution be made prior to arraignment "works well in the
majority of cases" because the defendant is normally arraigned
before the judge who will hear the case. Id. However, it
determined that in cases where the judge who handles the
arraignment is not the judge who will preside over trial, strict
compliance with Wis. Stat. § 971.20 is not mandated. Id. at
529-30.
¶44 The reason for the defendant's inability to comply
with the statutory deadline in Baldwin was a calendaring system
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Nos. 2015AP1292-CR & 2015AP1293-CR
utilized in Milwaukee County in which the judge assigned to
handle the arraignment was not necessarily the same judge who
would preside at trial. Id. at 530. However, Baldwin's
rationale has been extended to other cases where a defendant has
been unable to make a request for substitution due to a
government-created obstacle.
¶45 In Tessmer, the court of appeals explained that the
"Baldwin rational is controlling" when a defendant does not know
what judge will be assigned to try the case until after a plea
is entered . 123 Wis. 2d at 443. The Tessmer court explained
that because a traffic citation does not inform a defendant of
the judge assigned to trial, a defendant cannot exercise the
statutory right to substitution prior to an initial court
appearance. Id. Likewise, in Tinti, the court of appeals
determined that because an intake system did not provide
adequate notice in advance of arraignment of the assigned trial
judge, an exception to the filing deadline should be made to
allow for an opportunity to exercise the statutory right to
substitution. 159 Wis. 2d at 790.
¶46 This case is analogous to the arraignment cases
because a government-created obstacle interfered with a
defendant's opportunity to timely file for substitution. When
the circuit court instructed Zimbal to wait to file a request
for substitution until trial counsel was appointed, this
prevented Zimbal from complying with the statutory timeline. In
order to comply with the statutory deadline, Zimbal would have
had to disregard the instructions of the circuit court.
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Nos. 2015AP1292-CR & 2015AP1293-CR
¶47 Similar to the arraignment cases, a government-created
obstacle prevented Zimbal from exercising the statutory right to
substitution before the statutory deadline expired. Zimbal
followed the instructions of the circuit court when he waited
until trial counsel was appointed to file a motion for
substitution. He was not able to exercise his statutory right
to substitution when the circuit court instructed him to wait
until counsel was appointed and then later denied the motion
that counsel filed.
¶48 Strict adherence to the 20 day filing deadline is
problematic when, as here, a defendant follows a circuit court's
instruction to defer filing a request for substitution of judge
until after counsel is appointed. A requirement that a
defendant file a request for substitution within a 20 day time
limit when a circuit court in essence extends the deadline until
counsel is appointed is contrary to the goal of affording a
defendant an opportunity to exercise the statutory right to
substitution. See Tessmer, 123 Wis. 2d at 443.
¶49 Finally, we turn to the question of whether Zimbal's
motion for substitution of judge filed on November 18, 2013,
seventeen days after counsel was appointed, was timely under the
circuit court's extended deadline.
¶50 We again look to the arraignment cases, which have
balanced the importance of giving effect to the legislative
intent expressed in Wis. Stat. § 971.20 and preventing a
defendant from using a request as a technique to disrupt
scheduled calendaring or delay a scheduled trial. See, e.g.,
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Nos. 2015AP1292-CR & 2015AP1293-CR
Clark, 92 Wis. 2d at 628-29; see also Tessmer, 123 Wis. 2d at
443-44. As this court explained in Baldwin, "[o]ne thing which
should not be allowed is the disruption of the orderly
calendaring and trial of a case by a request on the day of trial
or at a time which upsets a trial date." 62 Wis. 2d at 532.
¶51 Accordingly, one of the considerations here is that
there is no indication Zimbal intended to disrupt scheduled
calendaring or delay a scheduled trial. Just the opposite——he
made an oral request as soon as possible and immediately
followed-up with a written request to the court of appeals.
There is also no evidence in the record that Zimbal had control
over the timely appointment of trial counsel.
¶52 Once counsel was appointed, he filed a motion for
substitution of judge within 17 days. Under the unique facts of
this case, it is reasonable to restart the 20 day deadline once
counsel had been appointed because the circuit court extended
the deadline. See Clark, 92 Wis. 2d at 627. Accordingly, we
also agree with Zimbal that the motion for substitution of judge
filed by his trial counsel on November 18, 2013, although not
timely under the statutory deadline, was timely here because the
circuit court extended the deadline until after his trial
counsel was appointed.
IV
¶53 In sum, we conclude that under the 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
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Nos. 2015AP1292-CR & 2015AP1293-CR
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.
By the Court.—The decision of the court of appeals is
reversed, and the cause remanded to the circuit court.
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Nos. 2015AP1292-CR & 2015AP1293.pdr
¶54 PATIENCE DRAKE ROGGENSACK, C.J. (concurring).
Although I would reverse the decision of the court of appeals
and remand for the assignment of a different circuit court judge
to preside at Zimbal's trials, I respectfully concur in, but do
not join, the majority opinion. The majority opinion's
standard, which cases have described as "relax[ing]" the rule of
strict compliance with Wis. Stat. § 971.20(7),1 is too amorphous
to provide guidance in future cases where a circuit court's
interaction with an unrepresented defendant contributes to
temporal problems with statutory compliance.
¶55 Instead, I would apply the well-developed factors of
the doctrine of equitable tolling and conclude that the circuit
court herein tolled the statutory time limits of Wis. Stat.
§ 971.20(7) when it acknowledged Zimbal's request for
substitution and told Zimbal that substitution would wait until
counsel was appointed. I would so conclude because Zimbal made
a good faith error in relying on the circuit court's statement
that his request for substitution on remand from his successful
appeal would be taken up after counsel was appointed; he had no
control over when counsel was appointed; and the State is not
prejudiced by the application of equitable tolling. Counsel
1
Majority Op. ¶41. See State ex rel Tinti v. Circuit Court
of Waukesha County, Branch II, 159 Wis. 2d 783, 788, 464 N.W.2d
853 (Ct. App. 1990) (concluding that in "both Tessmer [v.
Circuit Court Branch III, 123 Wis. 2d 439, 367 N.W.2d 235 (Ct.
App. 1985)] and Baldwin v. State, 62 Wis. 2d 521, 215 N.W.2d 541(1974), the filing deadline of the substitution statute was
relaxed where the judicial assignment system did not adequately
advise, prior to arraignment, of the judge to whom the case was
to be assigned for trial.").
1
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filed Zimbal's substitution request within 20 days of being
appointed, which was timely due to the circuit court's tolling
the temporal requirements of § 971.20(7) until counsel was
appointed. Therefore, the court of appeals erred when it
affirmed the circuit court's denial of Zimbal's substitution
request.
I. BACKGROUND
¶56 This substitution issue arose shortly after Zimbal
prevailed on appeal of the circuit court's denial of his Bangert
motion to withdraw his pleas.2 Upon vacation of the judgments of
conviction and his pleas, the court of appeals remanded Zimbal's
cases to the circuit court on September 4, 2013.
¶57 On October 7, 2013, when Zimbal appeared without
counsel in circuit court, the following exchange took place:
MR. ZIMBAL: I'm also asking that you recuse
yourself because there is no way you can be impartial.
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.
The circuit court then adjourned until an October 29 status
conference to await appointment of counsel.
¶58 On October 7, 2013, Zimbal also wrote to the court of
appeals asking that the circuit court judge who presided at his
convictions and sentencing be removed. He said, "I feel I will
2
State v. Zimbal, Nos. 2012AP2234-CR & 2012AP2235-CR (Wis.
Ct. App. Sept. 4, 2013); State v. Bangert, 131 Wis. 2d 246, 389
N.W.2d 12 (1986).
2
Nos. 2015AP1292-CR & 2015AP1293.pdr
never get any fair rulings in his courtroom due to his Bias to
this case and his inability to be impartial and Fair."
¶59 On October 11, 2013, remittitur occurred. On October
17, 2013, the clerk of the court of appeals replied to Zimbal,
explaining that the records in his cases had been remitted to
the circuit court. On October 29, 2013, because counsel had not
yet been appointed for Zimbal, the status conference was
adjourned.
¶60 On November 1, 2013, counsel was appointed. On
November 18, 2013, counsel filed a written request for
substitution with the circuit court. The circuit court denied
the request as untimely under Wis. Stat. § 971.20(7) and
proceeded to trial.
¶61 A jury found Zimbal guilty of multiple counts in both
pending cases. The circuit court again sentenced Zimbal to
consecutive, maximum sentences. Zimbal filed a postconviction
motion requesting a new trial in the interest of justice because
his motion for substitution should have been granted but was
not. The court of appeals affirmed the circuit court's denial
of his postconviction motion. We now reverse, vacate the
judgments of conviction, and order the substitution of the
circuit court judge and new trials on the pending charges.
II. DISCUSSION
¶62 The State relies on Wis. Stat. § 971.20(7) to assert
that Zimbal's requested substitution is not timely. It
provides:
(7) SUBSTITUTION OF JUDGE FOLLOWING APPEAL. If an
appellate court orders a new trial or sentencing
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Nos. 2015AP1292-CR & 2015AP1293.pdr
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.
Because remittitur occurred October 11, 2013 and Zimbal's
counsel filed the substitution request on November 18, 2013, the
State contends, and the circuit court and court of appeals
concluded, the filing was not timely.
¶63 Zimbal argues that the circuit court's statement that
it would not address his request for substitution until after
counsel was appointed tolled the filing requirements of Wis.
Stat. § 971.20(7) until counsel was appointed. He asserts that
the doctrine of equitable tolling should be applied because he
tried to bring his right of substitution to the circuit court's
attention; he relied in good faith on the circuit court's
statement; he had no control over when counsel would be
appointed; and counsel filed a written request for substitution
within 20 days of being appointed.
A. Standard of Review
¶64 We have not set a clear standard of review that should
be applied to a circuit court's decision in regard to equitable
tolling. However, when the material facts are not contested, we
have reviewed whether temporal performance of an act has been
equitably tolled independent of the decisions of the court of
appeals and the circuit court, but benefitting from their
discussions. State v. Nichols, 2001 WI 119, 247 Wis. 2d 1013,
635 N.W.2d 292. Here, material facts are uncontested and
4
Nos. 2015AP1292-CR & 2015AP1293.pdr
therefore, we independently review whether the doctrine of
equitable tolling is appropriate for us to apply.
B. Equitable Tolling
¶65 "Equitable tolling is a remedy that permits a court to
allow an action to proceed when justice requires it, even though
a statutory time period has elapsed." 51 Am. Jur. 2d,
Limitations of Actions § 153 (2017). "Equitable tolling focuses
on whether there was excusable delay by the plaintiff." Id.
The doctrine may be applied when a claimant has made a good
faith error and there is an absence of prejudice to others if it
is applied. Id., § 154.
¶66 We have employed equitable tolling when a required act
is dependent on a prior necessary act of another over whom the
person seeking equitable tolling has no control. Nichols, 247
Wis. 2d 1013, ¶26. Wisconsin appellate courts have tolled
statutory deadlines as an equitable solution for harsh results
that would follow from a required action outside of defendant's
control. Walker v. McCaughtry, 2001 WI App 110, ¶13, 244
Wis. 2d 177, 629 N.W.2d 17 (citing Steldt v. McCaughtry, 2000 WI
App 176, ¶17, 238 Wis. 2d 393, 617 N.W.2d 201).
¶67 In an equitable tolling defense, courts must determine
the date on which tolling may have occurred. This may be a
factual or a legal question. Griffin v. Smith, 2004 WI 36, ¶38,
270 Wis. 2d 235, 677 N.W.2d 259. If the question is factual, a
remand is required. At other times, as when material facts are
uncontested, the date on which tolling may occur will be
established as a matter of law. Id.5
Nos. 2015AP1292-CR & 2015AP1293.pdr
¶68 Here, Zimbal requested counsel; however, he had no
control over when counsel would be appointed. On October 7,
while Zimbal was unrepresented, the circuit court said that
Zimbal's substitution request would wait until counsel was
appointed. On October 7, 2013, Zimbal also brought his
substitution request to the clerk of the court of appeals, and
he continued to wait for the appointment of counsel.
¶69 In regard to Zimbal's equitable tolling argument, the
State does not assert that it would be prejudiced by granting
Zimbal's substitution request. The State merely asserts that
the cases Zimbal cites deal with prisoners and should not excuse
Zimbal's failure to file a written substitution request.
¶70 I agree with Zimbal. He relied on the circuit court's
directive that his substitution request would wait until after
counsel was appointed. He made a good faith error in waiting
for the appointment of counsel, and the State is not prejudiced
by the application of equitable tolling to his request for
substitution under Wis. Stat. § 971.20(7). Accordingly, I
conclude that the circuit court's October 7, 2013 decision
tolled the temporal requirements for substitution under
§ 971.20(7) until after counsel was appointed.
¶71 Counsel was appointed for Zimbal on November 1, 2013.
Because Zimbal's counsel had 20 days after appointment to file a
substitution request, his filing was due on or before November
21. He filed for substitution on November 18, 2013. Zimbal's
substitution request was timely.
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Nos. 2015AP1292-CR & 2015AP1293.pdr
III. CONCLUSION
¶72 In conclusion, I would apply the well-developed
factors of the doctrine of equitable tolling and conclude that
the circuit court herein tolled the statutory time limits of
Wis. Stat. § 971.20(7) when it acknowledged Zimbal's request for
substitution and told Zimbal that substitution would wait until
counsel was appointed. I would so conclude because Zimbal made
a good faith error in relying on the circuit court's statement
that his request for substitution on remand from his successful
appeal would be taken up after counsel was appointed; he had no
control over when counsel was appointed; and the State is not
prejudiced by the application of equitable tolling. Counsel
filed Zimbal's substitution request within 20 days of being
appointed, which was timely due to the circuit court's tolling
the temporal requirements of § 971.20(7) until counsel was
appointed. Therefore, the court of appeals erred when it
affirmed the circuit court's denial of Zimbal's substitution
request. Having so stated, I respectfully concur in the
majority opinion.
¶73 I am authorized to state that Justices REBECCA GRASSL
BRADLEY and DANIEL KELLY join this concurrence.
7
Nos. 2015AP1292-CR & 2015AP1293-CR.akz
¶74 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join
the opinion of the court because it is written narrowly and tied
to the unique circumstances present in this case. However, I
write separately to emphasize that a defendant's right to the
substitution of his judge under Wis. Stat. § 971.20 "is a matter
of legislative grace, not constitutional mandate." State ex
rel. Garibay v. Circuit Court for Kenosha Cty., 2002 WI App 164,
¶9, 256 Wis. 2d 438, 647 N.W.2d 455. Therefore, the legislature
could eliminate § 971.20 entirely if it wished to do so.
Although one does have a statutory right to substitution, that
right is far from a constitutional right.
¶75 While I join the court's opinion, I do not endorse all
of the reasoning present in the cases the court cites. Many of
these cases refer to a defendant's "ability to exercise his
right of substitution intelligently." Clark v. State, 92
Wis. 2d 617, 628, 286 N.W.2d 344 (1979). When words like
"intelligently" exercise are used, that cannot be read to mean
that somehow a person needs to affirmatively waive the right to
substitution, which is just not the case. In fact, missing the
statutory deadline in and of itself results in a relinquishment
of the right. There need not be anything particularly
"intelligent" about missing that deadline. See, e.g., State v.
Naydihor, 2004 WI 43, ¶55 n.11, 270 Wis. 2d 585, 678 N.W.2d 220("Naydihor . . . attempted to exercise his statutory right to
automatic substitution, pursuant to Wis. Stat. § 971.20(5). The
motion was denied because it was untimely."); State v. Beaty, 57
Wis. 2d 531, 542, 205 N.W.2d 11 (1973) ("Defendant claims error
1
Nos. 2015AP1292-CR & 2015AP1293-CR.akz
on the part of the trial court in refusing to grant a motion for
substitution of judges. . . . The motion was not timely, and was
properly denied."). I would therefore take this opportunity to
modify the case law language that could be read to suggest that
somehow waiver must be intelligently done and that seems to
bestow upon this statutory right a prominence and protections it
does not merit. I am nevertheless able to join the court's
opinion because it does not weigh in on the correctness of that
language.
¶76 Ultimately, I agree that under the unusual facts
presented, Zimbal is entitled to relief. While Zimbal's later
request, in and of itself, would otherwise have been properly
denied under the plain terms of Wis. Stat. § 971.20(7), the
circuit court had previously directly assured the defendant that
it would allow the defendant additional time to request
substitution and in fact, specifically denied the defendant's
ability to timely file under the statute. The defendant was not
allowed to timely file pursuant to the statute because the
circuit court postponed addressing that request. But then the
circuit court, after the statutory deadline had passed, but
still timely under the circuit court's order, then denied the
defendant's request citing the statute and concluding that it
was untimely. Clearly, these are unique facts. Indeed,
litigants should be hesitant to cite this case as authority in
the future in circumstances not identical to what occurred here.
Absent these unique facts, an untimely filing would be just
that. It need not be intelligently waived.
2
Nos. 2015AP1292-CR & 2015AP1293-CR.akz
¶77 For the foregoing reasons, I respectfully concur.
3
Nos. 2015AP1292-CR & 2015AP1293-CR.akz
1