APPEAL from a judgment and order of the Circuit Court
for Walworth County, Robert J. Kennedy, Judge.
Affirmed and cause remanded.
ｶ1 DAVID T. PROSSER, J. This case is before the
court on certification by the court of appeals, pursuant to
Wis. Stat. ｧ (Rule) 809.61 (2003-04). The appellant, John Campbell (Campbell), was
convicted of felony bail jumping as well as two counts of parental interference
with the custody of a child. On the
bail jumping charge, Campbell was accused of committing two crimes while he was
on pretrial release for other felony offenses.
The two crimes were the two counts of parental interference with the
custody of a child. The interference
crimes involved alleged violations of an order granted to Campbell's then-wife,
Denise Hladish-Campbell (Denise), for temporary custody and primary placement
of their two sons.
ｶ2 On appeal, Campbell seeks to reverse one of the two interference
with custody charges and the bail jumping charge. He claims that the circuit court erred when it prevented him from
collaterally attacking the validity of the custody order on grounds that his
wife procured that order by fraud.
ｶ3 This appeal presents two issues.
First, did the circuit court err in preventing Campbell from
collaterally attacking the validity of the family court's custody order in his
criminal trial, even though Campbell alleged that the order was obtained by
fraud? Second, under what conditions,
if any, may a circuit court impose attorney fees for standby counsel as a
condition of a defendant's probation?
ｶ4 We conclude that a court may permit a collateral attack on a
judgment or order procured by fraud if the fraud is jurisdictional, making the
judgment or order void, thereby negating an element of a crime, or if the fraud
raises an affirmative defense to the crime.
Because Campbell's allegations of fraud do not tend to negate any
element of a crime and do not constitute an affirmative defense, the circuit
court properly excluded evidence of the alleged fraud and prevented Campbell
from collaterally attacking the custody order.
ｶ5 We also conclude that in exercising its discretion to appoint
standby counsel, a circuit court may impose the attorney fees of standby
counsel upon a defendant as a condition of probation where either (1) the
defendant agrees to reimburse the county for the attorney fees; or (2) the
court informs the defendant of his potential liability for the fees and
the defendant uses standby counsel so extensively that he or she functions as
traditional defense counsel. Under both
alternatives, however, before imposing fees the court must determine the
defendant's ability to pay pursuant to
Wis. Stat. ｧ 973.20(13)(a)2. to 5. Because that determination was not made in this case, we remand
to the circuit court to evaluate Campbell's ability to pay.
ｶ6 Accordingly, we affirm Campbell's convictions, hold that the
circuit court had the authority, under these facts, to impose the attorney fees
of standby counsel as a condition of probation, but remand for the circuit
court to determine whether the full amount of attorney fees should have
been imposed.
I.
BACKGROUND
ｶ7 The facts in this case are complex. Campbell married Denise James (formerly Denise Hladish-Campbell)
in 1986. Sometime circa 1990, Vickie
Prushing (Vickie), became involved with the couple, and she lived with them for
substantial periods of time between 1990 and 1997.
ｶ8 On September 17, 1990, Vickie gave birth to a son, Randy, in
Kansas. Campbell is listed as the
biological father on Randy's birth certificate, but he may not be the
biological father. In any event,
Campbell and Denise adopted Randy in Kansas on August 30, 1994. This fact is not in dispute.
ｶ9 On November 11, 1995, Vickie gave birth to a second son, Cody, in
Missouri. Again, Campbell is listed as
the biological father on the birth certificate. Moreover, in 1996 a Missouri court issued an order recognizing
Campbell's paternity. A few months later, on September 23, 1996,
Campbell and Denise filed a petition in Missouri to adopt Cody. The petition was granted on March 14, 1997,
by a Missouri circuit court. The order
recognized Campbell as the natural father and declared Denise the adoptive
mother of Cody.
ｶ10 Between the time that Campbell and Denise petitioned for the
adoption of Cody and the Missouri court's March 14, 1997, adoption decree, the
Campbells moved to Wisconsin. By
November 1996 they were living in Walworth County, but they failed to share this
information with the Missouri court.
Campbell and Denise did return to Missouri on two occasions for court
hearings. The second time, they brought
Cody with them to court, at which time the Missouri court declared Denise the
adoptive mother of Cody.
ｶ11 Sometime after they moved to Wisconsin, the Campbells' relationship
began to deteriorate. Matters came to a
head on September 10, 1997, when Campbell physically assaulted Denise. On September 12 he was charged with
second-degree reckless endangering of safety and false imprisonment, both
felonies, and battery and disorderly conduct, misdemeanors. Four years later, he pled guilty to battery
and disorderly conduct, with the two other charges being dismissed.
ｶ12 The September 12 charges are significant because, after they were
filed, Campbell was released on bond with the standard condition that he not
commit any crime on release.
ｶ13 Denise petitioned for divorce on September 16, 1997. On September 22, 1997, a family court
commissioner issued a temporary order giving legal custody and primary
placement of Randy and Cody to Denise.
The custody order gave alternate periods of placement to Campbell. On December 23, 1997, the commissioner
entered an order giving Campbell placement of Randy and Cody on alternate
weekends from 4:00 p.m. Friday to 6:00 p.m. Sunday.
ｶ14 Prior to entry of the temporary order, Campbell challenged the
validity of Denise's adoption of Cody.
Campbell told the family court commissioner that the adoption decree was
void for fraud. Campbell explained that
at the time the Missouri court granted the adoption, he and Denise represented
to the court that they resided in Missouri, when in fact they did not. Campbell raised the issue with the family
court more than once. Ultimately, the
family court commissioner rejected Campbell's challenge to the validity of the
adoption, ruling that Campbell had to attack the validity of the adoption in
Missouri.
ｶ15 Campbell then filed a motion challenging the validity of the
custody order, contending the family court lacked jurisdiction and that Denise
had secured custody and primary placement by fraudulently representing to the
family court commissioner that she was Cody's adoptive mother. Campbell requested and received a de novo
hearing from the circuit court. At the
hearing on January 22, 1998, the circuit court determined that Campbell could
attack the validity of Denise's adoption of Cody but that additional briefing
was necessary to decide the matter.
ｶ16 Campbell never filed a brief or appeared again in court for the
divorce and custody proceedings. On
January 30, 1998, he picked up Randy and Cody for his scheduled weekend with
the boys. Instead of returning the
children to Denise by 6:00 p.m. on February 1, he fled with Vickie to Mexico,
where he planned to live indefinitely and deprive his wife of custody.
ｶ17 Hours after Campbell was supposed to return the boys, Denise called
the police. On February 4, Campbell was
charged with two counts of interference with child custody in violation of
Wis. Stat. ｧ 948.31(1)(b) (1997-98), and one count of felony bail
jumping in violation of Wis. Stat. ｧ 946.49(1)(b) (1997-98). Also on February 4, the circuit court found
Campbell in contempt of court for failing to abide by the temporary custody
order.
ｶ18 Within days of arriving in Mexico, Campbell was detained. Vickie crossed the border back to El Paso
with the boys, and on February 8, 1998, Randy and Cody were reunited with
Denise in Texas.
ｶ19 In due course, Campbell was released from Mexican custody, and from
February 1998 until January 3, 2001, he evaded the law. He spent time in various states before
settling down with Vickie in California. In January 2001 he was arrested. In June he was extradited to Wisconsin.
ｶ20 On June 19, 2001, the circuit court held the initial appearance in
this case, and Campbell advised the court that he wished to proceed pro
se. Concerned with the complexity of
the case, Walworth County Circuit Judge James L. Carlson asked Campbell whether
he wished assistance from standby counsel.
Campbell consented and agreed to reimburse Walworth County for the
attorney fees of standby counsel.
Thereafter, the circuit court appointed Attorney James Martin as standby
counsel.
ｶ21 Campbell's next court appearance, the preliminary hearing, occurred
on June 26, 2001. The State called
Denise as a witness, and both Campbell and Attorney Martin cross-examined her to
try to establish the invalidity of her adoption of Cody. At this time, Circuit Judge Robert J.
Kennedy ruled that Campbell could challenge the validity of the adoption at
trial but that he would have to introduce independent evidence of the
adoption's invalidity.
ｶ22 Following the preliminary hearing, the State filed a motion in
limine requesting that Campbell not be allowed to collaterally attack the
custody order by challenging the validity of Denise's adoption of Cody. On October 4, 2001, Judge Kennedy granted
the State's motion, concluding that the custody order could not be collaterally
attacked in this criminal proceeding.
He also ruled that "Ms. Denise Hladish-Campbell had legal custody
of [Cody] during the times charged in the criminal complaint and
information" as a matter of law.
The circuit court did allow Campbell to make an offer of proof of the
evidence he would have presented at trial.
ｶ23 The circuit court held a four-day trial from November 13 to November
16, 2001. A jury found Campbell guilty
of both counts of interference with legal custody of a child and felony bail
jumping. On January 9 and 11, 2002, the
circuit court held a sentencing hearing and sentenced Campbell to an
indeterminate prison sentence not to exceed five years for bail jumping, and
withheld sentence and imposed probation of 13 years, consecutive to Campbell's
prison sentence, on the two counts of interfering with legal custody. Additionally, the circuit court required as
a condition of probation that Campbell reimburse Walworth County for the
attorney fees of standby counsel. The
circuit court determined that Campbell had to pay $17,585.35 in attorney fees
and costs.
ｶ24 Campbell filed a postconviction motion. He requested a new trial on grounds that he should have been
allowed to present evidence that Denise's adoption of Cody was invalid. He also challenged the condition of probation
that required him to reimburse the County for the attorney fees of standby
counsel. The circuit court upheld the
imposition of attorney fees as a condition of probation and its decision to
prevent Campbell from challenging the validity of the family court's order in
the criminal trial.
ｶ25 Campbell appealed his convictions and the denial of his
postconviction motion. The court of
appeals certified Campbell's appeal, which we accepted.
ｶ26 The court of appeals certified the following issues:
Is the holding of State v. Bouzek, 168
Wis. 2d 642, 484 N.W.2d 362 (Ct. App. 1992), correct in
recognizing a fraud exception to the general rule which bars a collateral
attack against an order or judgment of another judicial body in the context of
a criminal proceeding? If Bouzek
does correctly state the law: (1) is the fraud exception properly limited to
jurisdictional fraud; (2) does the "clean hands" doctrine apply; and
(3) what are the respective roles of the trial court and the jury when
addressing a fraud exception?
State v. Campbell, No.
2004AP803-CR, unpublished certification (Wis. Ct. App. May 4, 2005). In addition to accepting the certified
question, we also assumed jurisdiction over the question of whether the circuit
court properly imposed the attorney fees of standby counsel as a condition of
Campbell's probation.
II.
STANDARD OF REVIEW
ｶ27 The first issue requires us to review the circuit court's decision
to exclude evidence to support a collateral attack upon the custody and
placement order. A determination as to
the admissibility of evidence is within the discretion of the circuit court and
will be reversed only if the court erroneously exercised its discretion. Martindale v. Ripp, 2001 WI 113, ｶ28,
246 Wis. 2d 67, 629 N.W.2d 698.
A circuit court's discretionary decision is upheld as long as the court
"examined the relevant facts, applied a proper legal standard, and, using
a demonstrated rational process, reached a reasonable conclusion." Id.
Since Campbell contends the circuit court applied an improper standard
of law when it prevented him from collaterally attacking the custody order, we
review the circuit court's decision to exclude evidence pertaining to the
validity of the order independent of the circuit court.
ｶ28 The second issue, whether the circuit court had the authority to
impose the attorney fees of standby counsel on Campbell as a condition of
probation, is a question of statutory interpretation we review de novo. State v. Ferguson, 202
Wis. 2d 233, 237, 549 N.W.2d 718 (1996).
III.
DISCUSSION
A. Conviction on Count I
ｶ29 Campbell was convicted of interfering with the legal custody of
Randy, contrary to Wis. Stat. ｧ 948.31(1)(b) (1997-98). This conviction is not in dispute. It is important because of its relationship
to Count III.
B. Conviction on Count III
ｶ30 Campbell was convicted of bail jumping, contrary to
Wis. Stat. ｧ 946.49(1)(b) (1997-98). This statute provides that whoever, having been released from
custody on a criminal charge under Chapter 969, intentionally fails to comply
with the terms of his bond, is guilty of a felony if the offense with which he
was charged was a felony. Wisconsin
Stat. ｧ 969.02(4) provides that, "As a condition of release in all
cases, a person released under this section shall not commit any
crime." (Emphasis added.) Campbell stipulated that he was on release
for a felony at the time he allegedly violated ｧ 946.49(1)(b), and he was
convicted at trial of Count I. Campbell
does not appeal his conviction on Count I for interfering with Denise's legal
custody of Randy. Thus, we see no
plausible challenge to Campbell's conviction for bail jumping.
C. Conviction on Count II
ｶ31 The heart of this case is Campbell's challenge to Count II,
parental interference with the legal custody of Cody. Wisconsin Stat. ｧ 948.31(1)(b) (1997-98) reads:
[W]hoever intentionally . . . takes
a child away or withholds a child for more than 12 hours beyond the
court-approved period of physical placement or visitation period from a legal
custodian with intent to deprive the custodian of his or her custody rights
without the consent of the custodian is guilty of a Class C felony.
ｶ32 In 1997 Campbell repeatedly challenged the validity of his wife's
standing as the adoptive mother of Cody before the Walworth County Family
Court. He claimed the Missouri adoption
was invalid because it had been obtained by fraud. He also claimed that Vickie's rights to Cody had never been
terminated. Hence, he claimed that
Denise misrepresented her status as Cody's adoptive mother when she petitioned
the court for a divorce, sought sole custody and primary placement of Cody, and
alleged that "[t]wo children have been born or adopted by the parties to
the marriage[.]" In effect,
Campbell claimed that every time Denise said she was the adoptive mother of
Cody, she was committing a fraud on the court, thereby invalidating the family
court's custody order and custody determinations of September 22, November 11,
and December 23, 1997. Thus, Campbell
contends that when the circuit court excluded evidence of Denise's fraud, the
court infringed upon his right to present a defense.
ｶ33 The Sixth Amendment and Due Process Clause right to present a
defense requires that a defendant be allowed to introduce relevant
evidence, subject to reasonable restrictions.
United States v. Scheffer, 523 U.S. 303, 308 (1998). A defendant's right to present a defense is
not absolute. Id.; see also
Holmes v. South Carolina, 126 S. Ct. 1727, 1731 (2006). So long as the rule under which a court
excludes evidence is not arbitrary and serves a legitimate state interest, the
right to present a defense is not abridged.
Holmes, 126 S. Ct. at 1731.
ｶ34 The right to present a defense does not require that a defendant be
allowed to present irrelevant evidence.
State v. Robinson, 146 Wis. 2d 315, 332, 431
N.W.2d 165 (1988). "Relevant
evidence" means "evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence." Wis. Stat. ｧ 904.01. Evidence that is not relevant is not
admissible.
Wis. Stat. ｧ 904.02.
ｶ35 In this case, before Campbell can collaterally attack the family
court's custody order for fraud, it must appear that Campbell's collateral
attack, if successful, would tend to negate an element of a crime or raise an
affirmative defense. In other words,
the evidence adduced by the collateral attack must be relevant.
1. Does Campbell's Fraud Allegation Negate The Element of Legal
Custody?
ｶ36 To evaluate whether Denise's alleged fraud negates an element of
interfering with legal custody of a child, we first examine the elements of the
crime.
ｶ37 For Campbell to be convicted of interfering with custody of Cody,
the State had to prove five elements: (1) Cody was younger than 18 years; (2)
Denise had legal custody of Cody under a court order in an action for divorce;
(3) Campbell took Cody from Denise and withheld him from Denise without her
consent for more than 12 hours past the time allowed by the custody order; (4)
Campbell took Cody away from Denise intentionally; and (5) Campbell knew that
Denise had legal custody of Cody under a court order and knew that Denise had
not consented to him withholding Cody. See
Wis JI覧Criminal 2166. Campbell asserts
Denise never had legal custody of Cody, which implicates the second and fifth
elements.
ｶ38 Campbell challenges the exclusion of evidence that Denise lied to
the family court commissioner and procured the custody order through
fraud. Specifically, he claims that
Denise misrepresented to the court that she was Cody's adoptive mother. This alleged misrepresentation, in turn,
originated in an alleged fraud perpetrated on a court in Missouri. Campbell contends that although Denise
presented the family court with Missouri adoption papers that declared her the
adoptive mother of Cody, these adoption papers were void because Denise and
Campbell lived in Wisconsin at the time of the adoption. Campbell posits that if Denise is not Cody's
adoptive mother, then the family court commissioner erred in giving her custody
and primary placement of Cody. Thus, he
argues, if the custody order is invalid, Denise did not have legal custody of
Cody, and Campbell did not violate the statute by taking Cody. In short, Campbell insists that the Walworth
County custody order was void because of fraud.
ｶ39 The State responds that if Denise committed any fraud, it did not
negate an element of the crime of interference with custody unless the fraud
was jurisdictional fraud that deprived the family court of subject matter
jurisdiction over the action or personal jurisdiction over Campbell. We agree with the State and conclude that
since the family court had both subject matter jurisdiction to make the custody
determination and personal jurisdiction over Campbell, there was no
jurisdictional fraud.
ｶ40 Our analysis begins with the meaning of "legal
custody." Once again,
Wis. Stat. ｧ 948.31(1)(b) (1997-98), states in part:
[W]hoever intentionally causes a child to leave, takes
a child away or withholds a child for more than 12 hours beyond the
court-approved period of physical placement or visitation period from a legal
custodian with intent to deprive the custodian of his or her custody rights
without the consent of the custodian is guilty of a Class C felony.
Wisconsin
Stat. ｧ 948.31(1)(a)1. defines "legal custodian of a child"
as "[a] parent or other person having legal custody of the child under an
order or judgment in an action for
divorce . . . ."
"Legal custody" is defined in part as "the right and
responsibility to make major decisions concerning the child . . . ." Wis. Stat. ｧｧ 948.01(1r)
& 767.001(2)(a).
ｶ41 Because Denise had custody of Cody pursuant to a court order, the
only way Campbell could negate the second element is if he could show that the
order was void and did not need to be obeyed.
ｶ42 Where a valid order or judgment is a necessary condition for one of
the elements of a crime, a collateral attack upon the order or judgment can
negate an element of the crime if the order or judgment is void. See State v. Orethun, 84
Wis. 2d 487, 490-91, 267 N.W.2d 318 (1978); State v.
Jankowski, 173 Wis. 2d 522, 528, 496 N.W.2d 215 (Ct. App.
1992). A void judgment is a nullity and
cannot create a right or obligation. Kett
v. Cmty. Credit Plan, 222 Wis. 2d 117, 127-28, 568 N.W.2d 68
(Ct. App. 1998) (affirmed 228 Wis. 2d 1, 596 N.W.2d 786)
(citing Fischbeck v. Mielenz, 162 Wis. 12, 17-18, 154 N.W. 701
(1916)). It is not binding upon
anyone. Id. On the other hand, a voidable judgment has
the same force and effect as a valid judgment until it has been set aside. Id. at 128 (citing Slabosheske v.
Chikowske, 273 Wis. 144, 150, 77 N.W.2d 497 (1956)); Stimson v.
Munson, 251 Wis. 41, 44, 27 N.W.2d 896 (1947) ("The order or
judgment, however erroneous, must stand until reversed, modified, or set
aside . . . . It is
not subject to collateral attack merely because it is erroneous, nor is it void
for that reason.") (quoting Pugh v. Fowlie, 225 Wis. 455, 471, 274
N.W. 247 (1937)).
ｶ43 As a general rule, a judgment or order is valid覧i.e., not
void覧when the following elements are present: (1) the court has subject matter
jurisdiction; (2) the
court has personal jurisdiction;
and (3) adequate notice has been afforded the affected persons. See Restatement (Second) of
Judgments ｧ 1 (1982) (setting forth the requisites for a valid
judgment).
ｶ44 Article VII, Section 8 of the Wisconsin Constitution provides that
"[e]xcept as otherwise provided by law, the circuit court shall have
original jurisdiction in all matters civil and criminal within this
state." This provision recognizes
very broad subject matter jurisdiction in circuit courts. Nonetheless, the validity of judgments in
these courts is complicated by our concept of "competency," which
refers to "the power of a court to exercise its subject matter
jurisdiction in a particular case."
See State v. Smith, 2005 WI 104, ｶ18, 283
Wis. 2d 57, 699 N.W.2d 508; Kohler Co. v. Wixen, 204
Wis. 2d 327, 336, 555 N.W.2d 640 (Ct. App. 1996). In Mueller v. Brunn, 105
Wis. 2d 171, 178, 313 N.W.2d 790 (1982), the court stated that
"[i]f a court truly lacks only competency, its judgment is invalid only if
the invalidity of the judgment is raised on direct appeal." Mueller, 105 Wis. 2d at
178. Village of Trempealeau v.
Mikrut, 2004 WI 79, ｶ8, 273 Wis. 2d 76, 681 N.W.2d 190, went
well beyond Mueller, stating that "a lack of competency does not
negate subject matter jurisdiction or nullify the judgment. Lack of competency is not 'jurisdictional'
and does not result in a void judgment."
Mikrut, 273 Wis. 2d 76, ｶ34 (citation omitted).
ｶ45 There are exceptions to these principles about subject matter
jurisdiction and competency. For
instance, the legislature may try to provide subject matter jurisdiction to the
courts but fail by enacting an unconstitutional statute. Thus, if a statute is unconstitutional on
its face, any judgment premised upon that statute is void. See State v. Bush, 2005 WI
103, ｶｶ14-19, 283 Wis. 2d 90, 699 N.W.2d 80; State ex rel.
Skinkis v. Treffert, 90 Wis. 2d 528, 538-39, 280 N.W.2d 316
(Ct. App. 1979). In addition, a
criminal complaint that fails to allege any offense known at law is
jurisdictionally defective and void. Bush,
283 Wis. 2d 90, ｶ18 (citing Champlain v. State, 53
Wis. 2d 751, 754, 193 N.W.2d 868 (1972); State v. Lampe,
26 Wis. 2d 646, 648, 133 N.W.2d 349 (1965)).
ｶ46 There may be other exceptions to the principles about subject
matter jurisdiction and competency. But
none of this helps Campbell. In this
case, for the custody order to be void, the family court would have had to lack
subject matter jurisdiction or personal jurisdiction, or Campbell would have
had to receive inadequate notice of the divorce proceedings. Nothing of this nature has been
alleged. Even if we assume arguendo
that Denise misrepresented her status as the adoptive mother of Cody, her
misrepresentation would not have deprived the family court of subject matter
jurisdiction or personal jurisdiction.
ｶ47 The family court had subject matter jurisdiction pursuant to
Wis. Stat. ｧｧ 767.23(1)(a) and (am) (granting a circuit court
commissioner authority to award legal custody and physical placement), 767.015
(requiring all child custody proceedings to comply with
Wis. Stat. ch. 822), and 822.03(1)(a) (granting any court
jurisdiction to decide child custody matters where Wisconsin "is the home
state of the child at the time of commencement of the proceeding"). The record reveals that Denise filed for
divorce on September 16, 1997, and the family court commissioner issued the
temporary custody order on September 22, 1997.
As early as November 5, 1996, Denise and Campbell had established
residency in Wisconsin. By the time
Denise filed for divorce, Cody had been living in Wisconsin for more than six
months, making Wisconsin Cody's home state.
Therefore, the family court commissioner had authority to enter the
custody order. Wis. Stat. ｧ 767.23(1)(a) and
(am).
ｶ48 The family court also had personal jurisdiction over Campbell. A deputy sheriff of Walworth County served
the summons and petition for divorce upon Campbell on September 16, 1997. Campbell does not dispute that the family
court commissioner had personal jurisdiction over him or that he received
adequate notice of the proceedings.
Because the family court had subject matter and personal jurisdiction
and because Campbell received adequate notice, there was no jurisdictional
fraud, and the custody order was not void.
Denise, therefore, had legal custody of Cody. This is precisely what the circuit court ruled.
ｶ49 Even if the family court commissioner erred in granting custody and
primary placement to Denise, Campbell had to abide by the terms of the custody
order until he succeeded in reversing it through the applicable review
process. See Orethun, 84
Wis. 2d at 490 ("Where a court has jurisdiction over the subject
matter and the parties, the fact that an order or judgment is erroneously or
improvidently rendered does not justify a person in failing to abide by its
terms."); Anderson v. Anderson, 82 Wis. 2d 115, 118-19,
261 N.W.2d 817 (1978); cf. Kett, 222 Wis. 2d at
128 ("A voidable judgment . . . has the same effect
and force as a valid judgment until it has been set aside.").
ｶ50 Since Campbell's allegation of fraud, even if true, cannot deprive
the family court of subject matter jurisdiction or personal jurisdiction, and
cannot render the custody order void, evidence of Denise's alleged fraud cannot
negate an element of interference with custody.
2. Does Campbell's Fraud Allegation Raise an Affirmative Defense?
ｶ51 Campbell also contends he should have been allowed to present
evidence at trial of Denise's alleged misrepresentation as part of an
affirmative defense. Campbell argues that, similar to the
now-abrogated common law privilege to resist an unlawful arrest, see State v. Hobson, 218
Wis. 2d 350, 577 N.W.2d 825 (1998), Wisconsin allows a defendant
to disregard an order procured by fraud and then collaterally attack the
fraudulently obtained judgment when the judgment supplies the basis for a
criminal prosecution. He relies on Boots
v. Boots, 73 Wis. 2d 207, 243 N.W.2d 225 (1976); Zrimsek
v. American Automobile Insurance Company, 8 Wis. 2d 1, 98
N.W.2d 383 (1959); State v. Bouzek, 168 Wis. 2d 642, 484
N.W.2d 362 (Ct. App. 1992); Schramek v. Bohren, 145
Wis. 2d 695, 429 N.W.2d 501 (Ct. App. 1988); and State v.
Madison, 120 Wis. 2d 150, 353 N.W.2d 835 (Ct. App. 1984), as
authority for his collateral attack on the custody order.
ｶ52 A party's ability to collaterally attack a judgment for fraud has
had a checkered history in Wisconsin.
Early in Wisconsin jurisprudence, a judgment could not be collaterally
attacked for fraud. Werner v. Riemer,
255 Wis. 386, 403, 39 N.W.2d 457 (1949) (citing Cody v. Cody, 98
Wis. 445, 452, 74 N.W. 217 (1898)). In Cody
this court held that a judgment could be collaterally attacked only if the
court that rendered the judgment lacked jurisdiction. Id.
ｶ53 Subsequently, this court revised the Cody rule to permit a
party to collaterally attack a judgment that was procured by fraud. See Boots, 73
Wis. 2d at 215-16 (discussing the evolution away from the rule in Cody). Now, Wisconsin courts may exercise their
equitable powers to relieve an aggrieved party from a judgment procured by
fraud in a collateral attack if the party "acts seasonably and was without
excusable negligence in the action," and where refusing to afford relief
would subject the party to an unconscionable judgment. Weber v. Weber, 260 Wis. 420, 430-31,
51 N.W.2d 18 (1952); see also State Cent. Credit Union v. Bayley,
33 Wis. 2d 367, 373, 147 N.W.2d 265 (1967); Hazel-Atlas Glass
Co. v. Hartford-Empire Co., 322 U.S. 238, 244-45, 248 (1944) (overruled on
other grounds). Thus, "[e]quitable
relief against fraudulent judgments . . . is a judicially
devised remedy fashioned to relieve hardships which, from time to time, arise
from a hard and fast adherence to another court-made rule, the general rule
that judgments should not be disturbed . . . ." Hazel-Atlas Glass Co., 322 U.S. at
248.
ｶ54 In Bouzek, the court quoted at length from Schramek:
A collateral attack
is an "attempt to avoid, evade or deny the force and effect of a judgment
in an indirect manner and not in a direct proceeding prescribed by law and
instituted for the purpose of vacating, reviewing, or annulling
it. . . . For [plaintiff] to . . . request
consideration in separate proceedings of any cause of action [based on the
invalidity of the domestic abuse injunction] would be sanctioning a collateral
attack on the order of another [ ] judicial body. [Her] only basis for [an] attack [on the injunction would be] if
she had demonstrated fraud in the procurement of the injunctive order.
Bouzek, 168
Wis. 2d at 644-45 (quoting Schramek, 145 Wis. 2d at
713).
ｶ55 In an earlier criminal case, the court of appeals said: "As a
general rule a judgment is binding on the parties and may not be attacked in a
collateral action unless it was procured by fraud." Madison, 120 Wis. 2d at 154
(citing Boots, 73 Wis. 2d at 216). Though the court of appeals has stated in criminal cases that a
judgment or order may be collaterally attacked if procured by fraud, the court
of appeals has never applied the rule in these cases. See Madison, 120 Wis. 2d at 154; Bouzek,
168 Wis. 2d at 645.
ｶ56 There are good reasons not to recognize a common law affirmative
defense of fraud to interference with child custody.
ｶ57 One species of affirmative defense覧exemplified by self-defense and
the now-abrogated privilege to resist unlawful arrest覧that courts recognize
arises where a person is faced with the difficult decision whether to commit a
crime or suffer an injury not otherwise susceptible to effective redress. See Hobson, 218
Wis. 2d at 373-80. In Hobson
the court recognized that the privilege to resist unlawful arrest developed at
a time when arrest was likely to lead to illness, torture, or prolonged
detention without an opportunity for a hearing. Id. at 374. Hobson,
however, abrogated this privilege because judicial process had advanced to the
point that it offered a more effective response to unlawful arrest than
physical resistance. Id. at
375-76.
ｶ58 For similar reasons, no affirmative defense for fraud can justify
interference with legal custody of a child unless there is a credible threat of
physical harm. See
Wis. Stat. ｧ 948.31(4)(a); State v. McCoy, 143
Wis. 2d 274, 295-96, 421 N.W.2d 107 (1988). Adequate judicial processes exist to attack
an order or judgment for fraud. In this
case, Campbell received a de novo hearing on the family court order in the circuit
court. See
Wis. Stat. ｧ 757.69(8).
If he had fully pursued the de novo hearing, he would have received a
decision, and he could have sought an appeal of an adverse determination. In addition, he could have attacked the
order for fraud after the appeal period lapsed. See Wis. Stat. ｧ 806.07. "It is in the courts that disputes
[over the custody of children] should be resolved except in those situations where
action is required by one parent to protect a child from imminent physical
harm." McCoy, 143
Wis. 2d at 296.
ｶ59 Recognition of an affirmative defense entails the balancing of
competing policy considerations. We
believe the legislature properly balanced the competing policies when it
established four affirmative defenses to interference with legal custody of a
child. See
Wis. Stat. ｧ 948.31(4)(a).
Interference with legal custody will not result in a conviction where
the action:
1. Is taken by a parent or by a person authorized by a parent to
protect his or her child in a situation in which the parent or authorized
person reasonably believes that there is a threat of physical harm or sexual
assault to the child;
2. Is taken by a parent fleeing in a situation in which the parent
reasonably believes that there is a threat of physical harm or sexual assault
to himself or herself;
3. Is consented to by the other parent or any other person or agency
having legal custody of the child; or
4. Is otherwise authorized by law.
Wis. Stat. ｧ 948.31(4)(a).
ｶ60 None of these legislatively created affirmative defenses applies in
this case. There is no suggestion in
the record that Denise posed a threat either to the boys or to Campbell; Denise
did not consent to Campbell taking the boys to Mexico; and Campbell's actions
were not authorized by law. The family
court commissioner's custody order was a valid order, with which Campbell was
obligated to comply. See Orethun,
84 Wis. 2d at 490-91.
Campbell's position would require us to overrule cases like Orethun
and Anderson, which held that an injunctive order must be obeyed even if
erroneous. See Orethun,
84 Wis. 2d at 490.
ｶ61 Furthermore, even if we were inclined to recognize an affirmative
defense to interference with legal custody for fraud, the facts of this case
would not warrant relief. Requiring
Campbell to obey the custody order does not shock the conscience. Campbell not only raised the question of fraud
before the family court commissioner, but also had the opportunity to contest
the validity of the custody order at the 1998 de novo hearing in circuit
court. Instead of pursuing the de novo
hearing, he abandoned judicial process in favor of absconding to Mexico with
Randy and Cody in contravention of a valid court order. In short, Campbell should be precluded from
litigating the alleged fraud since he already had the opportunity to do so. Cf. Smith, 283
Wis. 2d 57, ｶ22.
ｶ62 Under the facts of this case, we refuse to recognize a common law
affirmative defense of fraud. Therefore, the circuit court properly
prevented Campbell from collaterally attacking the underlying custody order
despite his allegations of fraud. This
holding does not eviscerate the Bouzek rule; it helps define and give
substance to the Bouzek rule.
Were we to hold otherwise, we would be rewriting decades of law on the
operative effect of voidable judgments.
D. Standby Counsel
ｶ63 The second issue we must decide is, under what conditions, if any,
may a circuit court impose attorney fees for standby counsel as a condition of
a defendant's probation?
ｶ64 In its purest form, standby counsel is primarily an aid to the
circuit court. State v. Lehman,
137 Wis. 2d 65, 78, 403 N.W.2d 438 (1987). When a defendant chooses to exercise his
right to self-representation and relinquish his right to be represented by
counsel, the circuit court, acting in its discretion, has the authority to
appoint an attorney to act as standby counsel.
Id. (citing McKaskle v. Wiggins, 465 U.S. 168, 184
(1984)). Even if the defendant objects,
the circuit court may appoint standby counsel.
Wiggins, 465 U.S. at 184; Faretta v. California, 422 U.S.
806, 834-35 n.46 (1975). When the
circuit court appoints standby counsel over the objection of the defendant, it
naturally follows that standby counsel functions primarily for the benefit of
the circuit court. See Lehman,
137 Wis. 2d at 78.
ｶ65 Sometimes覧as in this case覧a defendant may embrace the appointment
of standby counsel. At his initial
appearance, Campbell welcomed the appointment of standby counsel, even agreeing
to repay the attorney fees of standby counsel.
ｶ66 The role of standby counsel can vary over a wide spectrum, ranging
from a warm body sitting beside the defendant throughout trial to participation
that is tantamount to that of defense counsel.
See Anne Bowen Poulin, The Role of Standby Counsel in Criminal
Cases: In the Twilight Zone of the Criminal Justice System, 75 N.Y.U.L.
Rev. 676, 676 (2000). In the present
case, Attorney Martin's role was much closer to full-fledged defense counsel
than passive observer. Commenting on
Attorney Martin's role as standby counsel, the circuit court said:
I do not know what Judge
Carlson had in mind. I many times
during the course of my involvement with the Campbell
case . . . wished . . . devoutly that
Judge Carlson had decided not to appoint stand-by counsel.
There is no way that Mr.
Martin was doing anything this court felt was in the court's interest. In fact, he was覧[I] literally
felt . . . that he had to do just everything for the
defendant that the defendant wanted, and he did, um, to an extensive degree
where sometimes I felt there's no way I felt Mr. Martin would have raised those
issues as a competent counsel. The only
reason he was raising them is because he was at the direction of the defendant
who was telling him do it.
. . . I
make the specific finding that if Mr. Campbell initially said he didn't want
counsel, he certainly accepted stand-by counsel; and then instead of saying,
okay, you've got him, but I'm not going to use him or I'll use him only a
little, he's used him so extensively that the court was literally flabbergasted
by that use, and used him in ways that no legitimate counsel would have decided
independently to do.
There is, thus, no question in
my mind that the appointment of Mr. Martin did not serve the interest of the
court exceptionally except to the small degree that Mr. Campbell should have at
least somebody to handle覧to talk to him about fine points of law.
Martin went way beyond that,
way, way beyond that; he served the defendant's interest virtually entirely and
followed the directions of the defendant, and a number of times in court
literally pointed out to the court that, hey, he's [Campbell] the boss, that's
what I have to do. That is a defense
counsel.
. . . He
prepared motions. He did legal
research. He filed motions. He interviewed and located witnesses. He reviewed files and transcripts. He filed a petition for supervisory writ
with the Court of Appeals. He advised
evidentiary objections and himself cross-examined a witness as was recalled.
Based on the functional role played
by Attorney Martin, the circuit court imposed standby counsel attorney fees
upon Campbell as a condition of probation, pursuant to
Wis. Stat. ｧ 973.06(1)(e).
ｶ67 On appeal, Campbell contends a circuit court lacks statutory
authority to impose attorney fees of standby counsel as a condition of
probation. We disagree. Two
statutes覧Wis. Stat. ｧｧ 973.06 and 973.09覧confer upon circuit
courts the authority to impose attorney fees of standby counsel upon a
defendant in certain situations as a condition of probation.
ｶ68 Wisconsin Stat. ｧ 973.06 authorizes a court to impose
certain costs, fees, and surcharges upon a defendant as part of his
sentence. Section 973.06(1) provides,
in part: "[T]he costs, fees, and surcharges taxable against the defendant
shall consist of the following items and no
others: . . . (e) Attorney fees payable to the defense
attorney by the county or the state."
ｶ69 Another statute, Wis. Stat. ｧ 973.09, authorizes a
court to impose the payment of costs and restitution, upon a defendant, as a
condition of probation. Section
973.09(1) provides in part that "[t]he court may impose any conditions
which appear to be reasonable and appropriate." Then, more specifically, ｧ 973.09(1g) reads:
If the court places the person
on probation, the court may require, upon consideration of the factors
specified in s. 973.20(13)(a)2. to 5., that the probationer reimburse the
county or the state, as applicable, for any costs for legal representation to
the county or the state for the defense of the case. In order to receive this reimbursement, the county or the state
public defender shall provide a statement of its costs of legal representation
to the defendant and court within the time period set by the court.
ｶ70 In considering the relationship between these two statutes, the
list of costs authorized in Wis. Stat. ｧ 973.06(1) circumscribes
the costs a circuit court may impose as a condition of probation under
Wis. Stat. ｧ 973.09(1g).
Thus, the court of appeals concluded that it was error for the court to
impose one-half the cost of a special prosecutor as a condition of
probation. See State v. Amato,
126 Wis. 2d 212, 217-18, 376 N.W.2d 75 (Ct. App. 1985). The court noted that ｧ 973.06 replaced
statutes that permitted the imposition of the costs of prosecution. Id. at 215. The gist of the Amato decision is that the specific
language of ｧ 973.06(1)(e)覧"[a]ttorney fees payable to the defense
attorney"覧should prevail over the more general language覧"costs for
legal representation . . . for the defense of the
case"覧in ｧ 973.09(1g).
As a general proposition, we agree with this analysis.
ｶ71 Nonetheless, other cases indicate that neither a defendant nor his
attorney can expect to run up the public costs of the court system without
consequence. In State v. Foster,
100 Wis. 2d 103, 301 N.W.2d 192 (1981), the court imposed the
costs of one day's jury fees, using Wis. Stat. ｧ 814.51, upon a
defendant who decided to enter a plea "at six o'clock in the evening"
on the night before trial. Id.
at 104. In House v. Circuit Court
for Marinette County, 112 Wis. 2d 14, 331 N.W.2d 859 (1983),
the court imposed jury costs on an attorney who failed to show up at a
scheduled trial. The first of these
cases relied upon a specific statute, Foster, 100 Wis. 2d at
108-10, the second relied upon the court's inherent authority to assure the
orderly administration of justice. House,
112 Wis. 2d at 16. The
present case does not implicate these authorities, but the policy embodied in
these cases is definitely relevant.
ｶ72 Wisconsin Stat. ｧ 973.06 permits the court to impose a lengthy
list of costs upon an unsuccessful defendant.
At sentencing, the court may require a probationer to reimburse the
county or the state, as applicable, "for any costs for legal
representation . . . for the defense of the
case."
Wis. Stat. ｧｧ 973.09(1g) and 977.07(2m). We think the term "defense
attorney" in ｧ 973.06 is broad enough to cover standby counsel in
certain situations.
ｶ73 A circuit court may impose the attorney fees of standby
counsel upon a defendant as a condition of probation where either (1) the
defendant agrees to reimburse the county for the attorney fees; or (2) the
court informs the defendant of his potential liability for the fees and
the defendant uses standby counsel so extensively that he or she functions as
traditional defense counsel. By
requiring one of these two prerequisites to be present, a court will achieve
the proper balance between a defendant's right to represent himself and the
public's right to the orderly and efficient administration of justice.
ｶ74 There is no dispute that a defendant has a constitutional right to
defend himself. Faretta, 422
U.S. at 817. A defendant also has a
right to an attorney at public expense if he cannot afford an attorney. Gideon v. Wainwright, 372 U.S. 335
(1963); Carpenter v. County of Dane, 9 Wis. 274 (1859). In Moore v.
State, 83 Wis. 2d 285, 300, 265 N.W.2d 540 (1978), this
court held that a defendant "has no constitutional right to be
actively represented in the courtroom both by counsel and by
himself." Id. (emphasis
added). When this double-barrel
representation occurs, however, the circuit court cannot be deprived of the
ability to attempt to recoup some of the public costs. If the court were deprived of the ability to
hold an unsuccessful defendant accountable for this sort of dual
representation, some defendants who could afford to pay for their own attorney
would resort to the same tactics employed by Campbell in an effort to dodge
financial responsibility.
ｶ75 In this case, the circuit court appointed Attorney Martin much as a
court would appoint traditional defense counsel. After Campbell asserted he was indigent, and after the circuit
court decided to appoint standby counsel, the circuit court informed Campbell
of his obligation to pay the attorney fees, subject to his ability to pay. Cf.
Wis. Stat. ｧ 977.07(2m).
ｶ76 Campbell welcomed the court-appointed standby counsel and agreed to
pay his attorney fees. By welcoming
court-appointed standby counsel and heavily utilizing him throughout the
proceedings, Campbell effectively converted Attorney Martin into his
co-counsel. Although we have recognized
that the "chief purpose" of standby counsel in most cases is to
"serve the interests of the trial court," Lehman, 137
Wis. 2d at 78, this is not always the case and it was not the case
here. As the circuit court's summary of
Martin's performance indicates, while Martin may have been appointed initially
for the assistance of the circuit court, he became Campbell's agent almost
immediately. Thus, although nominally
acting as standby counsel, Campbell functioned as an attorney for the
defendant.
ｶ77 Where a defendant agrees to reimburse the county for the attorney
fees of standby counsel or the circuit court informs the defendant of his
potential liability for the fees and the defendant uses standby counsel so
extensively that he or she functions as traditional defense counsel,
Wis. Stat. ｧｧ 973.06(1)(e) and 973.09(1g) give a circuit court
the authority to impose the attorney fees of standby counsel as a condition of
probation. Cf. Mincey v.
Florida, 684 So.2d 236 (Fla. 1996).
Where, however, a defendant does not agree to reimburse the county for
the attorney fees, or is not informed of his potential obligation to pay the
attorney fees of standby counsel, a circuit court may not impose attorney fees
as a condition of probation, under the plain language of
Wis. Stat. ｧ 973.06(1)(e).
When standby counsel acts primarily for the benefit of the court rather
than as an attorney serving the defendant, attorney fees for standby counsel
are inappropriate.
ｶ78 In this case, Campbell agreed to pay the attorney fees of standby
counsel, satisfying the first test. In
addition, the court informed Campbell of his obligation to reimburse the county
for the fees and he made extensive use of Attorney Martin, satisfying the
second test. Under either test,
therefore, Campbell is responsible for Attorney Martin's fees, subject only to
his ability to pay.
ｶ79 Both this court and the United States Supreme Court have found that
as a condition of probation a defendant may be required to pay the attorney
fees of a public defender. Fuller v.
Oregon, 417 U.S. 40, 53-54 (1974); State v. Gerard, 57
Wis. 2d 611, 626, 205 N.W.2d 374 (1973). Before doing so, however, a circuit court
must evaluate the defendant's ability to pay.
Wis. Stat. ｧｧ 973.09(1g) and 973.20(13)(a)2. to 5.
ｶ80 A court should do no less before imposing the attorney fees of
standby counsel upon a defendant. Thus,
the circuit court must consider (1) "[t]he financial resources of the
defendant[;]" (2) [t]he present and future earning ability of the
defendant[;]" (3) "[t]he needs and earning ability of the defendant's
dependents[;]" and (4) "[a]ny other factors which the court deems
appropriate[,]" before imposing attorney fees of standby counsel. See ｧ 973.20(13)(a)2. to 5. Because the circuit court imposed the full
amount of Attorney Martin's fees, $17,585.35, upon Campbell without determining
his ability to pay, we remand this matter to the circuit court for further
proceedings consistent with this proceeding.
IV.
CONCLUSION
ｶ81 We affirm Campbell's convictions for interference with Denise's
legal custody of Cody and bail jumping.
The circuit court properly prevented Campbell from collaterally
attacking the custody order that awarded Denise legal custody. Because Campbell's allegations of fraud do
not tend to negate any element of a crime and do not constitute an affirmative
defense, the circuit court properly excluded evidence of the alleged fraud and
prevented Campbell from collaterally attacking the custody order.
ｶ82 Furthermore, because Campbell's conviction for interference with
Denise's legal custody of Randy覧a conviction he does not challenge覧is
sufficient to support his conviction for bail jumping, we affirm his conviction
for bail jumping.
ｶ83 We also conclude that in exercising its discretion to appoint
standby counsel, a circuit court may impose the attorney fees of standby
counsel upon a defendant as a condition of probation where either (1) the
defendant agrees to reimburse the county for the attorney fees; or (2) the
court informs the defendant of his potential liability for the fees and
the defendant uses standby counsel so extensively that he or she functions as
traditional defense counsel. Under both
alternatives, however, before imposing fees the court must determine the
defendant's ability to pay pursuant to
Wis. Stat. ｧ 973.20(13)(a)2. to 5. Because that determination was not made in this case, we remand
to the circuit court to evaluate Campbell's ability to pay.
By the Court.裕he judgment and order of the
circuit court are affirmed and the cause is remanded.
ｶ84 LOUIS B. BUTLER, JR., J. (concurring in part, dissenting in part). I join that portion of the majority opinion
which affirms the judgments of conviction in this case. I write separately because I strongly
disagree with the majority's conclusion that a circuit court has the authority
to impose attorney fees for standby counsel as a condition of a defendant's
probation. Majority op., part III D,
ｶｶ63-80. I therefore dissent from that
portion of the opinion.
I
ｶ85 During his continued initial appearance on June 19, 2001,
defendant John Campbell (Campbell) appeared pro se, having filed a request to
appear pro se. Campbell also filed a
signed "Waiver of Right to Attorney" form. At the continued initial appearance, the
trial court asked Campbell if he had ever studied evidence, civil procedure, or
criminal procedure, to which Campbell responded that he had not, but noted that
the defendant in Faretta v. California, 422 U.S. 806 (1975), had the
same problem. The circuit court judge
agreed that Campbell had a right to represent himself. The court then stated as follows:
I want to make sure that you
have a fundamental understanding of the Rules of Procedure, because you have to
follow them. And you have to select the
jury. We have a jury trial: Make your strikes; ask the appropriate
questions. You can't just get away with
asking questions in a free-lance way and get in evidence people using attorneys
do and following the rule would get in, and
ｶ86 Campbell noted that because he was pro se, he did not "have
the advantage of an appropriate counsel."
The circuit court then asked if he wanted a "backup attorney?" Campbell responded that "[a] backup
attorney would be great if the court would allow that." The following colloquy then took place:
THE
COURT: Well, I've done that in the
past. Are you I don't know if you've
asked for an attorney. I don't know if
you're indigent.
THE
DEFENDANT: I am indigent, Your
Honor. I'm a minister. We don't make a hundred dollars a week. And that's doing a couple of funerals in
California. . . .
THE
COURT: Did you, did you fill out a form
here that shows your indigency?
THE
DEFENDANT: Yes.
. . . .
THE
DEFENDANT: The idea then would be to go
pro se with counsel. Simply because
there is a very, very specific way that you have to address questions.
THE
COURT: I just had a trial that
way. And, first of all, the defendant
used the defense counsel and used their law books and their lawyer's ability to
help them do the research, and handle the case themselves. So that's a possibility.
ｶ87 The circuit court engaged Campbell in a dialogue that appears to
have discussed the indigency form filled out by Campbell. The court then determined that Campbell
wanted to represent himself and stated, "I will appoint a court-appointed
lawyer. . . . I don't know, you might qualify for [a]
Public Defender. I think he would you
should give the Public Defender a call."
A public defender then responded, "[j]udge, public defenders don't
do backups." Following a
discussion off the record, the circuit court appointed "a court-appointed
lawyer[,]" subject to repayment.
ｶ88 According to the transcript, the circuit court never determined
whether Campbell was indigent,
never made a finding that Campbell freely, voluntarily, and understandingly
waived counsel, and never determined that Campbell was competent to represent
himself at trial. See State v. Klessig, 211
Wis. 2d 194, ｶ14, 564 N.W.2d 716 (1997). The circuit court order for standby
representation, filed June 19, 2001, provides as follows:
WHEREAS, this
court has determined that the interests of justice and efficient operation of
the court require that [Campbell] be represented by standby counsel;
THEREFORE IT
IS HEREBY ORDERED that James Martin [] be, and is, appointed to represent the
defendant as standby counsel . . .
ｶ89 There is no such thing as a "backup attorney." This court has already held that a defendant
"has no constitutional right to be actively represented in the courtroom
both by counsel and himself." Moore
v. State, 83 Wis. 2d 285, 300, 265 N.W.2d 540 (1978). Counsel could either represent Campbell, or
counsel could assist Campbell in representing himself. Counsel could not do both.
ｶ90 Here is the problem: if the court appointed standby counsel to
"represent" Campbell, as stated in the order, then his constitutional
right to represent himself has been interfered with. If, on the other hand, the court appointed counsel to act as
"standby counsel" for Campbell, then
Wis. Stat. ｧ 973.06(1) precludes repayment for the cost of
counsel.
II
ｶ91 The Sixth Amendment to the United States Constitution and Article
I, ｧ 7 of the Wisconsin Constitution give a criminal defendant the right
to conduct his or her own defense. Klessig,
211 Wis. 2d at 203. That
right "exists to affirm the accused's individual dignity and
autonomy." McKaskle v. Wiggins,
465 U.S. 168, 176-77 (1984). "The pro
se defendant must be allowed to control the organization and content of his
own defense, to make motions, to argue points of law, to participate in voir
dire, to question witnesses, and to address the court and the jury at
appropriate points in the trial." Id.
at 174.
ｶ92 As the majority notes, when a defendant chooses to exercise his or
her right to self-representation and relinquish the right to be represented by
counsel, the circuit court, acting in its discretion, has the authority to
appoint an attorney to act as standby counsel.
Majority op., ｶ64. Contrary to
the majority's assertions, that appointment is for the purpose of assisting the
court. Wiggins, 465 U.S. at 184;
State v. Lehman, 137 Wis. 2d 65, 83, 403 N.W.2d 438
(1987). Compare majority op.,
ｶｶ65-66. Such a decision must be based
on a determination that the needs of the trial court, and not the defendant,
would be best served by doing so. Lehman,
137 Wis. 2d at 77.
ｶ93 The United States Supreme Court has expressly recognized that
standby counsel can have a very active role in the conduct of criminal
proceedings when defendant and standby counsel disagree, as well as when the
defendant embraces the actions of standby counsel. In Wiggins, the Court noted that during the trial outside
the presence of the jury, "[o]n several occasions Wiggins expressly
adopted standby counsel's initiatives. . . . On several other occasions Wiggins
strongly opposed the initiatives of counsel." Wiggins, 465 U.S. at 180.
Conflicts were resolved in favor of the defendant, thereby leaving him
in control over his defense. Id.
at 181.
ｶ94 Of more concern to the Wiggins Court was standby counsel's
participation during the trial in the presence of the jury. Id.
The Court recognized that the right of self-representation is not
infringed when standby counsel assists the pro se defendant in overcoming
procedural or evidentiary obstacles at trial, or helps to ensure the
defendant's compliance with basic rules of courtroom protocol and
procedure. Id. at 183. Accordingly, the court concluded as follows:
A defendant's Sixth Amendment rights are not violated
when a trial judge appoints standby counsel覧even over the defendant's
objection覧to relieve the judge of the need to explain and enforce basic rules
of courtroom protocol or to assist the defendant in overcoming routine obstacles
that stand in the way of the defendant's achievement of his own clearly
indicated goals.
Id. at 184.
ｶ95 The majority in this action construes Attorney Martin's role in
this case as being "much closer to full-fledged defense counsel than
passive observer." Majority op. at
ｶ66. The majority concludes that by
welcoming court-appointed standby counsel and heavily using him throughout the
proceedings, Attorney Martin became a defense attorney for Campbell. Id., ｶ76. If the majority is correct, then Campbell may have been deprived
of his right of self-representation.
Campbell either represented himself, or he didn't. The majority cannot have it both ways.
ｶ96 If the circuit court appointed Attorney Martin to
"represent" Campbell without telling him, then this court must
explore a Wiggins analysis to determine whether Campbell was in control
of his defense. If he was, then
Attorney Martin truly acted as standby counsel. If, on the other hand, counsel took control over the defense,
then Campbell has been deprived of his right of self-representation. Attorney Martin cannot fulfill both roles,
and the circuit court did not (and could not) appoint Attorney Martin to act as
co-counsel. Because I conclude that the
role played by Attorney Martin was consistent with the role of standby counsel
recognized in Wiggins, I therefore conclude that standby counsel here
was just that, standby counsel. To
conclude otherwise would require that the defendant receive a new trial, as a
violation of the right of self-representation is not subject to the harmless
error rule. Wiggins, 465 U.S. at
177 n.8.
III
ｶ97 The majority correctly concludes that
Wis. Stat. ｧｧ 973.06(1) and 973.09(1g) must be read together to
determine whether a circuit court has the authority to order Campbell to pay as
a condition of probation the costs of standby counsel. Majority op., ｶｶ67-70. The court of appeals has already held, and
the majority agrees, as a general proposition, that the exclusive list for
costs authorized in Wis. Stat. ｧ 973.06(1) circumscribes the
costs a circuit court may impose as a condition of probation. Id., ｶ70 (citing State v. Amato,
126 Wis. 2d 212, 217-18, 376 N.W.2d 75 (Ct. App. 1985)). The reason for such a rule is expressly set
forth by the statute; "Except as provided in s. 93.20,
the costs, fees, and surcharges taxable against the defendant shall consist of
the following items and no others[.]" Wis. Stat. ｧ 973.06(1). See also State v. Neave, 220
Wis. 2d 786, 790, 585 N.W.2d 169 (Ct. App. 1998). Thus, the decision on this issue hinges upon
this court's interpretation of ｧ 973.06(1)(e): "[a]ttorney fees
payable to the defense attorney by the county or the state."
ｶ98 The majority concludes that "the term 'defense attorney' in
ｧ 973.06 is broad enough to cover standby counsel in certain
situations." Majority op.,
ｶ72. I respectfully disagree. As previously noted, the decision to appoint
standby counsel should be based on a determination that the needs of the trial
court and not the defendant would be best served by doing so. Lehman, 137 Wis. 2d at
77. Indeed, that was done in this
case. The circuit court appointed
Attorney Martin for Campbell in "the interests of justice and efficient
operation of the court[.]" The Lehman
court used the term "assist" the defendant to describe the role of
standby counsel, and used that term broadly.
Id. at 79-80. As
Wis. Stat. ｧ 973.06(1)(e) provides for "attorney fees
payable to the defense attorney[,]" "and no others[,]"
no statutory provision exists that authorizes the payment of costs by the
defendant for standby counsel appointed to assist the court by assisting the
defendant.
ｶ99 The question of who pays for standby counsel has already been
addressed and decided by this court. In
Lehman, this court agreed that, with the exception of
Wis. Stat. ｧ 753.19,
no other statutory provision provides for the payment of the fees for standby
counsel. Id. at 83. That statute provides that "[t]he cost
of operation of the circuit court for each
county . . . except as otherwise provided, shall be paid by
the county."
Wis. Stat. ｧ 753.19.
This court reasoned that "the services rendered by the standby
counsel are actually services to the court." Lehman, 137 Wis. 2d at 83. This court stated that since the "trial
judge determined that the appointment of standby counsel was essential,
. . . the resulting fees were a 'necessary cost of the operation
of the court. . . . '" Id. The court thus
concluded that the duty of payment fell upon the county under
Wis. Stat. ｧ 753.19. Id.
ｶ100 For the reasons stated, Attorney Martin was not the defense attorney
in this matter. As such, the circuit
court lacks the authority to order Campbell to pay for the costs of standby
counsel as a condition of probation.
Other than Wis. Stat. ｧ 753.19, no other statutory
provision provides for the payment of the cost of standby counsel. Consequently, the circuit court erred in
ordering Campbell to pay for Attorney Martin's services as a condition of
probation.
ｶ101 For the foregoing reasons, I dissent from that portion of the
majority opinion dealing with costs.
ｶ102 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON
joins this concurring in part, dissenting in part opinion.