COURT OF APPEALS
DATED AND FILED
August 4, 2009
David R. Schanker
Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF APPEALS
Dwight Glen Jones,
from a judgment and an order of the circuit court for
¶1 PER CURIAM. Dwight Glen Jones appeals from a judgment of conviction and from an order denying his postconviction motion seeking a new trial. Jones, who is hearing-impaired, asserts that he was unable to communicate with his trial attorney. He seeks a new trial, conducted with the assistance of substitute counsel. We reject his contentions and affirm.
¶2 This matter returns after remand. Our earlier decision reversed the trial
court’s order that denied Jones a new trial without an evidentiary
hearing. State v. Jones, 2007 WI
App 248, 306
¶3 Jones I contains a review of the pertinent facts preceding Jones’s conviction. We include here a brief summary of those facts, supplemented with information developed after remand.
¶4 According to Jones, he has no hearing in his right ear, and he has twenty-five percent hearing in his left ear. He wears hearing aids that do not allow him to hear normally. He knows sign language, he can read lips, and he can speak aloud in English. After Jones was charged with multiple crimes, the Wisconsin State Public Defender appointed him an attorney who did not know any sign language.
¶5 Jones was dissatisfied with his appointed counsel and he wrote letters to his counsel, to the public defender’s office, and to the trial court seeking new counsel. Jones accused his counsel of lying to him and Jones asserted that his counsel failed to meet with him or respond to his concerns. Jones did not state in his letters, however, that he was unable to communicate with his counsel, nor did he request a sign-language interpreter.
¶6 Trial counsel responded to Jones’s complaints by moving to
withdraw from the case. The trial court
denied the motion, concluding that Jones had not established a basis for new
counsel and further concluding that involving a new attorney would
unnecessarily delay the trial. After a
jury convicted Jones of seven offenses, Jones filed a postconviction motion
seeking a new trial. He asserted that he
could not communicate with his trial counsel and that the trial court erred by
failing to appoint substitute counsel.
The trial court denied the motion without a hearing, and Jones
appealed. We reversed the postconviction
order and remanded the matter for an evidentiary hearing where Jones would have
the opportunity to prove “by expert testimony if necessary, his contention that
he had an irresolvable breakdown in communications with his trial lawyer.”
¶7 Several witnesses testified at the hearing after remand. Dr. Amy Otis-Wilbourn, a professor in the Department of Exceptional Education at the University of Wisconsin–Milwaukee, testified regarding her evaluation of Jones’s ability to communicate using sign language, English, and speech reading. Jones’s trial counsel described communicating with Jones during attorney/client conferences without a sign language interpreter. Jones’s mother testified that she does not know sign language and that she communicates with Jones using spoken English.
¶8 Jones also testified. He asserted that he had difficulty understanding his trial counsel, and that he “couldn’t trust [counsel] when [counsel] was talking ... without an interpreter.” Jones explained that none of his fifteen letters to trial counsel mentioned either an inability to understand his counsel or a need for an interpreter because his counsel promised to bring an interpreter to future meetings. Jones also explained that his letters to the trial court requesting new counsel did not mention the need for an interpreter because the court knew that Jones was deaf and “would know that [Jones] would have problems with this lawyer without an interpreter.”
¶9 The circuit court concluded that Jones failed to prove a substantial breakdown in communication with his trial counsel. The court therefore denied Jones a new trial, and this appeal followed.
¶10 “Whether [trial] counsel should be relieved and a new attorney
appointed in his or her place is a matter within the trial court’s
discretion.” State v. Lomax, 146
¶11 Jones argues that the circuit court erroneously exercised its
discretion in concluding that Jones and his counsel could communicate
effectively because the court based its conclusion on a factual error, namely,
that Jones did not complain about communication problems with his trial counsel
until after he was convicted. The
circuit court stated: “lack of understanding,
lack of sign [language]. Those weren’t
brought forward to the Court.” We
observed in Jones I, however, that “at the hearing on the lawyer’s motion
to withdraw ... [Jones] did tell the
trial court that he and his lawyer ‘did struggle’ in attempting to talk to one
another, saying: ‘I think I need an
interpreter with my attorney.’” Jones
¶12 The record amply supports the circuit court’s conclusions that Jones and his trial counsel communicated effectively without a sign language interpreter. Jones’s trial counsel testified that when he and Jones spoke face to face, Jones understood the conversation. Trial counsel explained that Jones expressed himself verbally and that Jones gave responsive answers when counsel asked questions and requested information. Trial counsel also explained that he and Jones did not “see things the same way” when they discussed the State’s offer of a plea agreement and Jones’s chances of prevailing at trial. Trial counsel testified that Jones was “able to be quite adamant about his account of how things went.”
¶13 Jones testified that he did not understand his trial
attorney. The circuit court did not
believe this testimony, finding that Jones was not truthful. The circuit court determined that Jones
misrepresented various facts during his pursuit of substitute counsel,
understating both the number of times that he met with his attorney and the
duration of the meetings. This court defers to the circuit
court’s assessment of credibility. Jacobson
v. American Tool Cos., 222
¶14 Jones acknowledges that this court must accept the circuit court’s credibility assessment, but he suggests that his lack of credibility is not a relevant factor in this case. He states that his letters to his trial counsel constitute “direct documentary evidence” of a substantial breakdown in attorney/client communication. He acknowledges that the letters fail to state “I do not understand.” He dismisses the lack of such direct assertions as nothing more than an absence of unnecessary “magic words.” He selects various phrases from his letters, such as accusations that his lawyer lied to him, and he explains why these phrases should be construed as statements that he did not understand his lawyer and needed an interpreter. He concludes that his letters, as construed, prove that he could not communicate with his attorney. We must reject these arguments.
¶15 The circuit court expressly considered Jones’s letters in light of Jones’s testimony. Jones testified that his letters did not include a request for an interpreter. Jones also testified that when he does not understand another person, he usually says “I don’t understand.” The circuit court concluded:
It is clear from the record, at least from [Jones’s] testimony, that when he does not understand something, he will speak up and say it. That’s not been shown to be the case in this case, however. In every one of his letters, there is no mention of his lack of understanding.
¶16 When a written document must be interpreted with the aid of
extrinsic evidence, “the question is one of fact, and this court will not
disturb the [circuit] court’s findings unless they are against the great weight
and clear preponderance of the evidence.” Jones v. Jenkins, 88
¶17 Jones next argues that the conclusions of his expert witness
prove his inability to communicate with trial counsel, rendering irrelevant his
own lack of credibility on this issue. The
expert testified that Jones was unable to understand oral communication without
aids such as sign language, gestures, and diagrams. The circuit court was not required to accept
that testimony. A circuit court is at
liberty when resolving a disputed issue “‘to accept or reject the testimony of
any expert, including accepting only parts of an expert’s testimony; and to
consider all of the non-expert testimony ….’”
¶18 In this case, the non-expert evidence suggested that Jones did not need sign language for effective communication. Jones’s mother testified that she uses spoken English to communicate with Jones because she does not know sign language. Jones himself testified that he sought and received help from other inmates in drafting letters about his case and that none of those inmates knew sign language.
¶19 Further, the record raises questions about other conclusions
reached by the expert. Jones’s
acknowledgment that he has pled guilty more than eight times undermines the
expert’s determination that Jones did not understand “specialized legal
vocabulary” such as “plea,” “conviction,” “defendant,” and
“incarceration.” Indeed, the expert’s
testimony that Jones “did not know what incarceration was, either in print or
otherwise,” appears at odds with Jones’s pretrial letter to the court stating
that his trial counsel “never done anything for me since I being incarcerated
and he only came to visit me but one time out of 6-month .... [Counsel] only
responed [sic] to me 2-time since I being incarcerated for 6 1/2 month
now.” (Spelling and grammar as in
original.) The expert conceded that she
had no way to determine whether Jones’s responses to her testing instruments reflected
malingering. In sum, the record supports
the circuit court’s implicit rejection of the expert’s conclusions. See
of Avon v. Oliver, 2002 WI App 97, ¶23, 253
¶20 The evidence and reasonable inferences from the evidence
support the circuit court’s conclusions that Jones understood the complexities
of the case and “discussed [them] with [counsel]. He just didn’t like what [counsel] had to
say.” Therefore, we must accept those
conclusions. See State v. Jenkins, 2007 WI 96, ¶46, 303
¶21 Jones additionally contends that the circuit court’s order
denying him substitute counsel violated his constitutional right to counsel of
choice. Indigents represented by appointed
counsel do not have the right to choose their attorneys. See
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2007-08).
Honorable Elsa C. Lamelas presided over the pretrial and trial proceedings and
the postconviction proceedings reviewed in State v. Jones, 2007 WI App 248, 306
 Dr. Otis-Wilbourn explained that the terms “speech reading” and “lip reading” are used to refer to the same process but that “speech reading” is the more current term. Jones used the term “lip reading” in his postconviction affidavit and testimony.
“great weight and clear preponderance” test is essentially the same as the
“clearly erroneous” standard of review. State
v. Hambly, 2008 WI 10, ¶16 n.7, 307
 Appellate counsel states that the argument is raised in order to preserve it for possible supreme court review.