State v. Zimbal

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Justia Opinion Summary

When a defendant follows a circuit court’s instruction to defer filing a request for substitution of a judge until after counsel is appointed, strict compliance with the twenty-day deadline for filing a request for substitution after remittitur is not warranted.

Here Defendant made a timely request for substitution of a judge pursuant to Wis. Stat. 971.20(7) after his cases were remitted to the circuit court following the successful appeal of the denial of his Bangert motion to withdraw his pleas and vacate his conviction. The circuit court instructed Defendant that the filing of a motion for substitution should be deferred until after an attorney was appointed. Seventeen days after an attorney was appointed, Defendant’s trial counsel formalized the substitution request. The circuit court denied the postconviction motion. The court of appeals affirmed, concluding that Defendant did not timely invoke his right to substitution of a circuit court judge. The Supreme Court reversed and remanded to the circuit court to vacate the judgments of conviction and for a new trial, holding that, under the unique circumstances of this case, Defendant’s motion for substitution of judge was timely filed because the circuit court in essence extended the deadline until after Defendant’s trial counsel was appointed.

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2017 WI 59 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2015AP1292-CR and 2015AP1293-CR 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 REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 371 Wis. 2d 564, 884 N.W.2d 535 (2016 – Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: June 14, 2017 December 2, 2016 Circuit Brown William M. Atkinson 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 59 NOTICE 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, FILED Plaintiff-Respondent, 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. ("Zimbal"), opinion seeks review affirming a postconviction motion.1 of an circuit Petitioner, Edward J. Zimbal unpublished court court order of appeals denying his The court of appeals determined that Zimbal did not timely invoke his right to substitution of a circuit court judge. 1 It reasoned that his request fell outside 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 contending that (1) to prior asserts his that the substitution having an court of request attorney was appointed appeals timely he made erred, because: 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 presented We conclude here, when that a under defendant the unique follows a circumstances 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 the application of likewise decline to to the unique facts cases has expanded the exception to invoke the doctrine of equitable tolling and we do so here. Instead, we limit our decision of this case. 3 Nos. his trial counsel was appointed. 2015AP1292-CR & 2015AP1293-CR 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. consecutive maximum The circuit court sentenced Zimbal to 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 3 identified See State N.W.2d 12 (1986). v. in Bangert Bangert, 131 4 for establishing Wis. 2d 246, Zimbal's 275-76, 389 Nos. understanding Zimbal's of cases the with nature of the directions to 2015AP1292-CR & 2015AP1293-CR offense."4 vacate the It remanded judgments of conviction and grant Zimbal's motion to withdraw his pleas.5 ¶7 at issue Although the merits of Zimbal's Bangert motion are not here, its resolution on procedural posture of this case. appeal is relevant to the 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 proceeding, a request within 20 days after the appellate court, substitution was made taken. orders a new trial or sentencing under this section may be filed the filing of the remittitur by whether or not a request for prior to the time the appeal was 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 of That same day, Zimbal also wrote a letter to the court appeals requesting assistance because denied his oral request for recusal. part: 6 the circuit court It provided in relevant 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 appointed request November Zimbal for new 1, trial substitution November 18, 2013. 2013, the counsel of judge State who Public Defender subsequently seventeen days filed later, a on 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 postconviction ineffective motion did assistance not include 8 of a counsel. claim that His any of 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. failed to comply with It concluded that because "Zimbal 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. apply relevant statutes. We are called upon to interpret and 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 language of the statute. begins with examining the 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." ¶20 We give statutory language "its common, ordinary, and accepted words Id., ¶44. meaning, or except that are given phrases definitional meaning." technical Id., their ¶45. or specially-defined technical Statutory or special 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 exercise the statutory right to substitution. opportunity to 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. If an appellate court proceeding, a request within 20 days after the appellate court, substitution was made taken. 2015AP1292-CR & 2015AP1293-CR orders a new trial or sentencing under this section may be filed the filing of the remittitur by whether or not a request for prior to the time the appeal was 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. 360 Wis. 2d 246, ¶39. Harrison, 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." motion for presumption recusal that a Wis. Stat. § 971.20(9). requires judge has a defendant acted 11 fairly, In contrast, a to overcome the impartially, and Nos. without bias. 2015AP1292-CR & 2015AP1293-CR 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. ¶26. See Harrison, 360 Wis. 2d 246, In Harrison, the defendant used phrases like "change of judge" and "recusal" "substitution." in Id. some of his filings, rather than 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." ¶26 Id. The same is true here. 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 liberally construed Harrison, 360 indicates, as a Zimbal's request Wis. 2d 246, ¶26. for request could substitution. Accordingly, we be See 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 the We begin our statutory analysis with the language of statute. Kalal 271 Wis. 2d 633, 12 ¶45. Subsection (7) Nos. provides "filed." that a request for 2015AP1292-CR & 2015AP1293-CR substitution Wis. Stat. § 971.20(7). of judge must be 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. other same subsections of the statute explicitly requests for substitution have to be "written." §§ 971.20(3)(b), (4) and (5). Several state that See Wis. Stat. 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 letter to We consider the court next of whether appeals Zimbal's complied requirements of Wis. Stat. § 971.20. October with the 7, 2013, statutory The plain language of the statute requires that a request for substitution of judge be filed with the circuit court. (5), (8) and (10). See Wis. Stat. §§ 971.20(3), (4), 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. ¶33 2015AP1292-CR & 2015AP1293-CR 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. deny your request at this time." I'll 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 November record Zimbal filed, The was 1, 2013. indicates not that after represented Attorney Hirsch by the trial was remittitur counsel Zimbal's was until appointed appellate counsel and did not appear on his behalf after the appeal of his Bangert motion was concluded. Cano appeared in the circuit court in Although Attorney his capacity, he did not act as Zimbal's counsel.8 administrative 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 pro se Additionally, the circuit court treated Zimbal as a litigant until the newly appointed counsel, Hanes, appeared at the November 1, 2013, hearing. Zimbal's oral request for a new judge on October Attorney It denied 7, 2013, stating "I'll let your attorney do research on that issue and you can address that at the status conference. request at this time." I'll deny your 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 demands According strict to the adherence State, to its the substitution terms because statute Wis. Stat. § 971.20(2) requires that the right to substitution "shall be exercised as provided in this section." the court of appeals decision in It further relies on State v. Austin, 171 Wis. 2d 251, 257, 490 N.W.2d 780 (Ct. App. 1992), which reasoned that "deviation § 971.20(11)] from would the allow requirements for [of substantial Wis. problems Stat. that are prevented by strict adherence to the statute." ¶40 adherence Here we make because the an exception circuit to the court rule directed of strict that the substitution issue would again be addressed after trial counsel was appointed and exception exception Zimbal followed that directive. comports when with a our prior case law government-created This limited allowing an prevents obstacle for 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. case. See Baldwin v. State, 62 2015AP1292-CR & 2015AP1293-CR 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 before arraignment." any motions to the trial court and In Baldwin, the defendant argued that when the circuit judge originally assigned to the case voluntarily disqualified should have himself been after arraignment, construed to Wis. permit Stat. the § 970.20 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. determined that in cases where the Id. judge who However, it 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 19 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 appearance. determined to Id. that substitution Likewise, because an to Tinti, in prior the intake system an initial court did court of appeals 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. ¶46 because 159 Wis. 2d at 790. This a case is analogous government-created to the obstacle arraignment interfered cases with defendant's opportunity to timely file for substitution. a When the circuit court instructed Zimbal to wait to file a request for substitution until trial counsel was appointed, prevented Zimbal from complying with the statutory timeline. this In order to comply with the statutory deadline, Zimbal would have had to disregard the instructions of the circuit court. 20 Nos. ¶47 2015AP1292-CR & 2015AP1293-CR 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 substitution. was appointed to file a motion for 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 substitution. ¶49 to exercise the statutory right to See Tessmer, 123 Wis. 2d at 443. 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 intent the importance expressed defendant from in using of Wis. a giving Stat. request effect § 971.20 as a to the and 21 preventing technique scheduled calendaring or delay a scheduled trial. legislative to a disrupt See, e.g., Nos. 2015AP1292-CR & 2015AP1293-CR Clark, 92 Wis. 2d at 628-29; see also Tessmer, 123 Wis. 2d at 443-44. should As this court explained in Baldwin, "[o]ne thing which 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." ¶51 there 62 Wis. 2d at 532. Accordingly, one of the considerations here is that is no indication Zimbal intended calendaring or delay a scheduled trial. made an oral request as soon as to disrupt scheduled Just the opposite——he 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, substitution of judge within 17 days. he filed a motion for 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 presented In sum, here, we when conclude a that defendant under follows the a circumstances circuit court's instruction to defer filing a request for substitution of a judge until after counsel is appointed, that strict compliance 22 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 reversed, and the cause remanded to the circuit court. 23 appeals is Nos. ¶54 PATIENCE DRAKE 2015AP1292-CR & 2015AP1293.pdr 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 § 971.20(7) when it acknowledged Zimbal's Wis. Stat. 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. 1 Counsel 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 Nos. filed Zimbal's substitution request 2015AP1292-CR & 2015AP1293.pdr within 20 days of being appointed, which was timely due to the circuit court's tolling the temporal appointed. affirmed requirements Therefore, the circuit of the § 971.20(7) court court's of denial until appeals of counsel erred Zimbal's when was it substitution request. I. ¶56 This substitution BACKGROUND 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. 2 He said, "I feel I will 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. yet been On October 29, 2013, because counsel had not appointed for Zimbal, the status 2013, counsel conference was adjourned. ¶60 On November November 18, 2013, 1, counsel filed a substitution with the circuit court. the request as untimely under was appointed. written request On for The circuit court denied 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. of The court of appeals affirmed the circuit court's denial his postconviction judgments of motion. conviction, and We now reverse, vacate order the substitution of the the circuit court judge and new trials on the pending charges. II. ¶62 that DISCUSSION The State relies on Wis. Stat. § 971.20(7) to assert Zimbal's requested substitution is not timely. provides: (7) SUBSTITUTION OF JUDGE FOLLOWING APPEAL. If an appellate court orders a new trial or sentencing 3 It 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 statement; he had no in good faith control over on the when circuit counsel court's would be appointed; and counsel filed a written request for substitution within 20 days of being appointed. A. ¶64 Standard of Review 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 discussions. 635 N.W.2d the circuit court, but benefitting from their State v. Nichols, 2001 WI 119, 247 Wis. 2d 1013, 292. Here, material 4 facts are uncontested and Nos. therefore, we independently review 2015AP1292-CR & 2015AP1293.pdr whether the doctrine of equitable tolling is appropriate for us to apply. B. ¶65 Equitable Tolling "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." Limitations of Actions § 153 (2017). 51 Am. Jur. 2d, "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. ¶66 Id., § 154. 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. Wis. 2d 1013, ¶26. Wisconsin appellate Nichols, 247 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. factual or a legal question. Griffin v. Smith, 2004 WI 36, ¶38, 270 Wis. 2d 235, 677 N.W.2d 259. remand is required. uncontested, the This may be a If the question is factual, a At other times, as when material facts are date on which established as a matter of law. tolling Id. 5 may occur will be Nos. ¶68 Here, Zimbal requested 2015AP1292-CR & 2015AP1293.pdr counsel; however, control over when counsel would be appointed. while Zimbal Zimbal's was unrepresented, substitution appointed. On request October 7, the would 2013, circuit he had no On October 7, court said that wait until counsel was 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 substitution conclude tolled that the under the of equitable Wis. Stat. circuit temporal tolling to his § 971.20(7). court's requirements October for request for Accordingly, 7, 2013 I decision 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. substitution request was timely. 6 Zimbal's Nos. III. ¶72 In conclusion, 2015AP1292-CR & 2015AP1293.pdr 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. filed Zimbal's substitution request within 20 days Counsel of being appointed, which was timely due to the circuit court's tolling the temporal appointed. affirmed request. requirements Therefore, the circuit Having so of the § 971.20(7) court court's stated, of denial I until appeals of erred Zimbal's respectfully counsel when was it substitution concur in the majority opinion. ¶73 I am authorized to state that Justices REBECCA GRASSL BRADLEY and DANIEL KELLY join this concurrence. 7 Nos. ¶74 2015AP1292-CR & 2015AP1293-CR.akz 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. could eliminate § 971.20 entirely Therefore, the legislature 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 Wis. 2d 617, 628, 286 intelligently." N.W.2d 344 Clark (1979). v. When State, words 92 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 "intelligent" about missing that deadline. particularly 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 presented, Zimbal is entitled to relief. the unusual facts 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. allowed to timely file pursuant to the The defendant was not statute circuit court postponed addressing that request. circuit court, after the statutory deadline because the But then the 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. ¶77 2015AP1292-CR & 2015AP1293-CR.akz For the foregoing reasons, I respectfully concur. 3 Nos. 1 2015AP1292-CR & 2015AP1293-CR.akz