Wisconsin Cases January 20, 2021: State v. Lee

Case Description

On behalf of the defendant-appellant, the cause was submitted on the briefs of and oral argument by Julianne M. Lennon of Law Offices of Attorney Julianne M. Lennon, Wausau.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Timothy M. Barber, assistant attorney general, and Joshua L. Kaul, attorney general. There was oral argument by Timothy M. Barber.

A nonparty brief was filed by Kelli S. Thompson, assistant state public defender, and Katie R. York, state public defender appellate division director of Madison.

Before Stark, P.J., Hruz and Seidl, JJ.

HRUZ, J.

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¶1 Wisconsin law requires that a preliminary hearing be held within ten days of a defendant's initial appearance if the defendant is in custody on a felony charge and bail is set in excess of $500. WIS. STAT. § 970.03(2) (2017-18). After Nhia Lee's initial appearance, he was deemed eligible for representation by the Wisconsin State Public Defender's Office (SPD) based on his indigence, but he was held in custody for 101 days without counsel while the SPD searched for an attorney willing and able to represent him. Ultimately, Lee's preliminary hearing was not held until 113 days after his initial appearance.

¶2 During the time Lee was unrepresented, circuit court judges and a court commissioner, on their own motions, repeatedly extended the statutory, ten-day time limit for holding the preliminary hearing. Each time, they found cause to do so based solely on the fact that the SPD was still searching for counsel. After eventually obtaining an SPD-appointed attorney, Lee filed a motion to dismiss the criminal complaint, in which he alleged, among other things, that the circuit court and the commissioner had erroneously exercised their discretion when extending the time limits by failing to consider other relevant factors, including the potential prejudice to Lee arising from the delay. Lee

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also asserted that, barring a timely SPD appointment, the court was required to appoint counsel for him at county expense. The court ultimately denied Lee's motion.

¶3 We agree with Lee that the circuit court and the court commissioner erroneously exercised their discretion when, on their own motions, they continued to find cause to extend the time limit under WIS. STAT. § 970.03(2) for months based solely upon the fact that the SPD had not yet obtained counsel for Lee. Although the SPD's search for counsel can constitute good cause to delay the preliminary hearing, going forward there must be a more robust consideration of relevant factors than is demonstrated by this record—including the necessity and feasibility of appointing counsel at county expense, especially in instances of prolonged delay. In this case, we conclude that the court's erroneous exercise of discretion occurred no later than at the conclusion of a status hearing that was held nearly two months after Lee's initial appearance. By that time, the court was informed that over 100 potential attorneys had declined to represent Lee, and Lee continued to request that counsel be appointed for him or that the charges against him be dismissed. We reject Lee's assertion, however, that the court was required before that time to appoint counsel for him at county expense under State v. Dean , 163 Wis. 2d 503, 471 N.W.2d 310 (Ct. App. 1991), and a 2018

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Wisconsin Supreme Court order amending SCR 81.02.

¶4 Because Lee's preliminary hearing was held outside of the ten-day time limit without a proper finding of good cause, the circuit court was deprived of personal jurisdiction over Lee. Accordingly, we reverse the order denying Lee's motion to dismiss and remand

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with directions for the court to grant the motion and dismiss the criminal complaint without prejudice.

BACKGROUND

¶5 On September 10, 2018, Lee was charged in Marathon County Circuit Court case No. 2018CF1025 with two felony drug offenses and a single count of identity theft. Lee made an initial appearance that same day; he was represented by SPD-appointed counsel for purposes of that hearing only, but the matter was continued to the following day because his attorney had not yet spoken to Lee about the charges. The circuit court found probable cause for the charged offenses based upon the contents of the criminal complaint and imposed cash bail in the amount of $25,000.

¶6 The imposition of bail in that amount triggered the statutory obligation to hold a preliminary hearing within ten days of the initial appearance. See WIS. STAT. § 970.03(2). Lee was deemed eligible for SPD representation based on his indigence, and his preliminary hearing was set for September 19, 2018.

¶7 On September 14, 2018, a court commissioner, sua sponte, held what was designated as a "review hearing." The State did not appear at the hearing. Lee appeared without counsel, as the SPD had not yet appointed anyone for him. The commissioner stated its understanding that Lee had been "found eligible for a Public Defender but they are still

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looking for somebody to represent you." Lee confirmed that he shared that understanding, and he reaffirmed that he wanted an attorney to represent him. The commissioner removed the preliminary hearing from the schedule and found good cause to extend the ten-day time limit for holding the preliminary hearing until another review hearing scheduled for the following week.

¶8 The court commissioner conducted additional weekly review hearings between September 21 and October 12, 2018. At each hearing, the commissioner, sua sponte, considered whether to extend the time limit for holding the preliminary hearing. The State did not appear at any of the hearings, and Lee continued to appear without counsel. At each hearing, the commissioner stated that the SPD was continuing to search for someone to represent Lee. Each time, the commissioner, on its own motion, found good cause to extend the time limit for holding the preliminary hearing. At the October 5 hearing, the commissioner noted that "four people this week ... got attorneys ... but it looks like nothing has changed in your case yet."

¶9 At the October 12, 2018 review hearing, Lee objected that he had been in custody for one month without counsel. The court commissioner responded: "I wish I could tell you what the hold up is, there doesn't seem to be any ... certain length. I've seen people who have been in shorter get attorneys, so I'm not sure what the hold up is on your particular case." The commissioner told Lee that, at some point, the lack of counsel for him "will become a problem." The commissioner informed

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Lee of the purpose of the preliminary hearing, of his right to have it within ten days of the initial appearance, and that the commissioner had been finding good cause to extend that time

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limit based upon the SPD's failure to find counsel for him. Upon Lee's further protestations, the commissioner informed Lee that judicial actors could not give him advice about how to proceed. The commissioner suggested that Lee write a letter to Judge LaMont Jacobson, to whom Lee's case had been assigned, expressing his concerns.

¶10 A similar discussion occurred at the October 19, 2018 review hearing. Lee again objected to the amount of time he had been in custody without an attorney, and the court commissioner again advised Lee to write a letter to Judge Jacobson expressing his concerns. The commissioner again found good cause to extend the time for holding the preliminary hearing.

¶11 Lee wrote a pro se letter to Judge Jacobson in mid-October, expressing concerns regarding his due process rights as a result of the delay and requesting that his case be dismissed. At the October 26, 2018 review hearing, the court commissioner acknowledged that the circuit court had received the letter but had taken no action on it. The commissioner then summarily found good cause to extend the time limit for the preliminary hearing.

¶12 At the November 2, 2018 review hearing, the commissioner again observed that no action had been taken on Lee's letter. Lee objected that he had

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been "sitting here for this long" without counsel. The commissioner acknowledged it had to "be frustrating to sit there and be waiting" and offered to investigate the status of Lee's letter before the next review hearing. The commissioner again found good cause to extend the time limit for the preliminary hearing based solely on the SPD's failure to locate an attorney for Lee.

¶13 The circuit court held a hearing on November 7, 2018, to address Lee's letter. Lee, still unrepresented, appeared in person, as did the State. The court invited SPD attorney Suzanne O'Neill to attend and explain the delay in finding an attorney for Lee. O'Neill acknowledged that Lee had been "on the list now a significant period of time." O'Neill believed "at least 100, if not more" attorneys had been contacted by the SPD. None of those attorneys were willing to represent Lee, although O'Neill was not asked why that was the case, and she did not otherwise specify the reasons. O'Neill stated that the SPD had attempted to contact local attorneys by telephone and attorneys throughout the state by e-mail.

¶14 In addressing Lee's motion, the circuit court found that Lee had been waiting approximately two months for a preliminary hearing and that the delay was "getting very, very close to the point where the Court could find a constitutional violation." Nonetheless, the court observed that probable cause had been twice found during Lee's initial appearances and that Lee had received weekly review hearings, during which the court commissioner found good cause to extend the ten-day time limit to hold a preliminary hearing. On these respective bases, the court found neither a constitutional nor statutory violation, and it denied Lee's motion to dismiss.

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¶15 Between November 9 and November 30, 2018, the court commissioner held three more review hearings at which the State did not appear. Lee appeared each time without an attorney, and at each hearing he confirmed the commissioner's observation that he was still waiting for the SPD to appoint counsel. During the various hearings, the commissioner remarked that the amount of time Lee had been waiting was approaching a potential constitutional violation and that Lee could appeal the denial of his earlier motion or file a new one. Lee was informed that the Marathon County judges were meeting soon to discuss issues arising from the widespread failure of the SPD to obtain counsel for indigent defendants. At each hearing, the commissioner found good cause to extend the time limit for holding the preliminary examination another one to two weeks, again based solely upon the SPD's failure to appoint counsel for Lee.

¶16 The court commissioner first raised the prospect of appointing an attorney for Lee at county expense during the November 30, 2018 hearing. Lee told the commissioner that he had sent the circuit court judge another letter, which the court apparently had not yet received. Lee then inquired about the results of the Marathon County judges’ meeting, and the commissioner informed him that they "haven't come up with any plan yet" and had decided only to

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hold review hearings on a biweekly schedule rather than weekly. When Lee further questioned the delay, the commissioner stated: "[A]t some point they're going to have to do something different and that might mean appointing somebody for you at County expense. I know they're trying not to have to do that, but at some point that might have to be what the answer is."

¶17 The December 14, 2018 review hearing was held before Judge Michael Moran. The circuit court stated it "wish[ed the SPD] could have someone at this point but they don't, therefore I'm going to toll time limits for cause at this time." The next review hearing was set for December 28, 2018.

¶18 On December 21, 2018, the SPD appointed attorney Julianne Lennon as counsel for Lee. Attorney Lennon immediately filed a motion to dismiss, alleging that the delays in appointing counsel for Lee had violated his Sixth Amendment and statutory rights. At the next hearing, which was held on December 28 before the court commissioner, Lennon appeared with Lee and argued that given the SPD's delay in appointing counsel for Lee, the circuit court was required to have appointed an attorney at county expense pursuant to S. CT. ORDER 17-06, 2018 WI 83 (eff. Jan. 1, 2020) ( In re the Petition to Amend SCR 81.02 ). The preliminary hearing had been set for January 2, 2019, but Lennon objected to that date because it would occur more than ten days after her appointment. The commissioner again found good cause to extend the time limit, based upon its assumption that January 2, 2019, was the earliest date available for a hearing.

¶19 Lee then filed an amended motion to dismiss, in which he added a claim that his pretrial detention without an attorney violated his due process rights. Lee asserted the circuit court had inherent

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authority to appoint counsel for him at county expense, and that its failure to do so and to

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hold a preliminary hearing within the statutory time limits deprived the court of personal jurisdiction over him. The preliminary hearing on January 2, 2019, was held before Judge Jill Falstad, who deferred ruling on the motion to dismiss, found probable cause to believe Lee committed a felony, and bound him over for trial.

¶20 Lee's motion to dismiss was heard on March 25, 2019. In addition to her written arguments, Lennon argued at the hearing that the various judicial actors who had found good cause to extend the time limit for holding Lee's preliminary hearing had done so without a sufficient basis. Lennon contended they had failed to properly exercise discretion under State v. Selders , 163 Wis. 2d 607, 472 N.W.2d 526 (Ct. App. 1991), because they had failed to consider the possible prejudice Lee suffered as a result of the delayed preliminary hearing. Lennon represented that Lee had been interviewed by numerous law enforcement agencies while he was awaiting the appointment of counsel, that he had been taken for a "ride-along" to identify locations of ongoing criminal activity, and that officers had confiscated his cell phone. Lennon contended that because these activities occurred without Lee having representation, he was unable to negotiate a cooperation agreement, have the interviews recorded, or secure a property receipt for his phone.

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¶21 In addressing Lee's motion, the circuit court recognized that, given the low compensation rates for SPD-appointed attorneys, there were few attorneys willing to take such cases and "[a] statewide crisis regarding public defender representation has been brewing for several years." The court noted that Marathon County judges had been attempting to deal with the problem by scheduling review hearings prior to the preliminary hearing for two purposes: (1) to make sure that indigent persons requesting an attorney had obtained representation by the time of the preliminary hearing, which is a "critical stage" in criminal proceedings ; and (2) to avoid repeatedly rescheduling the preliminary hearing due to the lack of counsel, thereby inconveniencing any police officers who were required to testify at such hearings.

¶22 The circuit court ultimately denied Lee's motion to dismiss. The court noted that Lee had no constitutional right to a preliminary hearing and that his constitutional right to a timely probable cause determination had been satisfied by the probable cause reviews during the initial appearances in both the earlier-filed case and the present case. The court also determined that Lee's Sixth Amendment right to counsel was not affected by the SPD's delay in obtaining counsel for him, although it found the circumstances of Lee's case "extreme" and stated it was "very troubled

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by the length of time that it took." The court also determined that the statutory time limits under

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WIS. STAT. § 970.03(2) had been satisfied because, at each review hearing, good cause to extend the time limit had been found. Furthermore, the court noted that it "could have appointed an attorney earlier at county expense," but that did not mean the court was "required to make such an appointment." Lee now appeals the denial of his motion to dismiss.

DISCUSSION

I. Preliminary Hearings Generally and "Cause" to Extend the Time Limit for Holding One

¶23 We begin with Lee's assertion that the circuit court lacked personal jurisdiction over him as a result of its failure to hold a preliminary hearing within ten days of his initial appearance. Since 1849, the preliminary hearing has been considered "an essential step in the criminal process involving felonies." Sparkman v. State , 27 Wis. 2d 92, 99, 133 N.W.2d 776 (1965). The hearing is held "for the purpose of determining if there is probable cause to believe a felony has been committed by the defendant." WIS. STAT. § 970.03(1). The primary function of the preliminary examination is to "protect the accused from hasty, improvident, or malicious prosecution and to discover whether there is a substantial basis for bringing the prosecution and further denying the accused his right to liberty." State v. Williams , 198 Wis. 2d 516, 527, 544 N.W.2d 406 (1996) (citing

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Bailey v. State , 65 Wis. 2d 331, 344, 222 N.W.2d 871 (1974) ); see also State v. O'Brien , 2013 WI App 97, ¶17, 349 Wis. 2d 667, 836 N.W.2d 840, aff'd , 2014 WI 54, 354 Wis. 2d 753, 850 N.W.2d 8 (stating the preliminary hearing serves to screen out "implausible or impossible allegations").

¶24 Strict timeliness provisions govern when a preliminary examination must be commenced. See WIS. STAT. § 970.03(2) ; see also State v. Brown , 215 Wis. 2d 716, 727, 573 N.W.2d 884 (Ct. App. 1997) (noting that judicial substitution is allowed despite § 970.03(2) ’s "restrictive time limits"). As applicable to Lee, the statute requires that a defendant who is held in custody on a bail amount greater than $500 have a preliminary hearing within ten days of his or her initial appearance. Sec. 970.03(2). A circuit court may, however, extend the time for holding a preliminary hearing "[o]n stipulation of the parties or on motion and for cause." Id.

¶25 Lee's statutory claim turns on what constitutes "cause" under WIS. STAT. § 970.03(2) and whether the circuit court appropriately exercised its discretion in continuing to find cause to delay Lee's preliminary hearing. The interpretation and application of a statute

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present questions of law that we review de novo. Brey v. State Farm Mut. Auto. Ins. Co. , 2020 WI App 45, ¶13, 393 Wis. 2d 574, 947 N.W.2d 205. If the language of the statute is plain, we ordinarily stop the inquiry. Id.

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We give statutory language its common, ordinary and accepted meaning; we interpret the language in the context of surrounding or closely related statutes; and we avoid interpretations that produce absurd or unreasonable results. State ex rel. Kalal v. Circuit Ct. for Dane Cnty. , 2004 WI 58, ¶¶45-46, 271 Wis. 2d 633, 681 N.W.2d 110.

¶26 During each of Lee's first twelve review hearings, the various judicial actors found "cause" under WIS. STAT. § 970.03(2) to extend the time within which to hold the preliminary hearing. That cause was based entirely on the SPD's failure to locate counsel for Lee. The State contends that the SPD's

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unsuccessful and continuing search for counsel, in and of itself, was sufficient cause to extend the time within which to hold the preliminary hearing.

¶27 Lee argues that while the SPD's search for counsel may have initially constituted cause to delay the preliminary examination, that justification eventually dissipated given the circuit court's inherent authority to appoint an attorney at county expense. Indeed, Lee goes so far as to argue the court was required to appoint counsel for him at county expense. Lee's argument thus implicates both the SPD's statutory responsibility to find counsel for indigent defendants and a court's inherent authority to appoint an attorney for an indigent defendant at county expense.

¶28 As part of our analysis in this case, we are mindful that "long-standing principles relating to the right to counsel are among the most important in protecting an accused." State v. Forbush , 2011 WI 25, ¶45, 332 Wis. 2d 620, 796 N.W.2d 741. Indeed, the Wisconsin Constitution recognizes that a defendant "enjoy[s] the right to be heard by himself and counsel." WIS. CONST. art. I, § 7. And by 1859, our supreme court had recognized that an indigent defendant may have counsel appointed for him or her at county expense, even in the absence of a statute so providing. See Carpenter v. County of Dane , 9 Wis. 249, [*274], 250, [*275-76] (1859).

¶29 In creating the SPD, the legislature "intended to structure a comprehensive state-wide program to deal with the appointment of counsel for indigent defendants."

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Douglas Cnty. v. Edwards , 137 Wis. 2d 65, 76-77, 403 N.W.2d 438 (1987). The statutes establish a public defender board, which sets the indigency criteria, see WIS. STAT. § 977.02(3), and appoints a

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state public defender who supervises the SPD, see WIS. STAT. § 977.05(1). The state public defender, in turn, compiles a list of attorneys in each county willing to represent SPD-eligible clients, see WIS. STAT. § 977.08(2), and may assign cases to either staff attorneys or private local attorneys, see § 977.08(3). The rate of compensation for private attorneys was $40 per hour during the period Lee was awaiting the appointment of counsel. See § 977.08(4m)(c). The SPD represents that this amount had not changed significantly from the time of the SPD's creation in 1977, leading to widespread difficulties in finding attorneys willing to accept SPD appointments at such a low rate.

II. A Court's Inherent Authority to Appoint Counsel at County Expense

¶30 A crucial component of Lee's argument is his observation that, despite the creation of the SPD as

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the primary appointing authority of counsel for indigent defendants, a circuit court retains the inherent authority to appoint counsel at county expense. This argument is well taken. "The legislature cannot limit who is constitutionally entitled to an attorney. The creation of the public defender's office is not the exclusive means for assuring counsel to indigents and did not negate the inherent power of the court to appoint when the public defender declines to act." Dean , 163 Wis. 2d at 513, 471 N.W.2d 310.

¶31 For example, in Dean , we concluded that although the circuit court did not err in finding the defendant statutorily ineligible for SPD-appointed counsel, the court was nonetheless required to "go beyond the public defender's determination ... and determine whether the ‘necessities of the case’ and the demands of ‘public justice and sound policy’ require appointing counsel." Id. at 511, 513, 471 N.W.2d 310 (quoting Sparkman , 27 Wis. 2d at 98, 133 N.W.2d 776 ). And in Edwards , the SPD declined to appoint counsel after the defendant repeatedly fired his SPD-appointed attorneys, prompting our supreme court to conclude the circuit court possessed inherent authority to appoint standby counsel for the pro se defendant at county expense. Edwards , 137 Wis. 2d at 68-70, 403 N.W.2d 438.

¶32 A circuit court's inherent authority to appoint counsel has not always been well received by counties that must pay for such representation. Even as far back as Carpenter , counties have objected to paying the attorney fees of indigent criminal defendants, see Carpenter , 9 Wis. at 252, [*277], and Edwards concluded that the SPD could not be charged for court-appointed representation, see Edwards , 137 Wis. 2d at 82-85, 403 N.W.2d 438. As a result, the costs of court-appointed attorneys must be borne by the county of

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venue and are considered operating costs of circuit courts under WIS. STAT. § 753.19. Edwards , 137 Wis. 2d at 82-83, 403 N.W.2d 438. The amicus represents that it does not reimburse counties for court-appointed attorneys, as there is no statutory authority to do so. True to this history, once the prospect of appointing an attorney at county expense was eventually raised in this case, the only reason given for not doing so was the cost to the county.

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¶33 Still, although an attorney could have been appointed for Lee at county expense, Lee considerably overreads the authorities he cites in support of his argument that the circuit court was required to make such an appointment after a preliminary hearing could not be held within ten days of his initial appearance. Dean held that circuit courts are not bound by the SPD's indigency criteria and have an independent obligation to inquire into a defendant's potential indigency. Dean , 163 Wis. 2d at 513-15, 471 N.W.2d 310. Pertinent to Lee's arguments, Dean offered only the general statement that a court has the inherent authority to appoint counsel if the "necessities of the case" and the demands of "public justice and sound policy" so require. Id. at 515-16, 471 N.W.2d 310 (quoting Edwards , 137 Wis. 2d at 85, 403 N.W.2d 438 ). But Dean did not declare that these requirements are satisfied solely because there is a delay in obtaining SPD-appointed counsel for approximately three months or less, as occurred here.

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¶34 As additional authority, Lee relies on In re the Petition to Amend SCR 81.02 , in which our supreme court considered an administrative rule petition to raise the rate paid to court-appointed attorneys from $70 to $100 per hour. Id. at 12. The court recognized at that time that, due in part to the low statutory rate paid to SPD-appointed private attorneys, "the SPD struggles to find counsel who will represent indigent criminal defendants." Id. at 2-3. As a result, "costs for indigent defense, which should be borne by the state as a whole, are being shifted to individual counties" through the court-appointment process. Id. at 15.

¶35 Lee interprets In re the Petition to Amend SCR 81.02 as a mandate to appoint attorneys at county expense whenever there are delays in procuring SPD-appointed counsel. Lee relies on a single sentence in the body of the order: "If lawyers are unavailable or unwilling to represent indigent clients at the SPD rate of $40/hour, as is increasingly the case, then judges must appoint a lawyer under SCR 81.02, at county expense." Id. at 15 (citing generally Dean , 163 Wis. 2d 503, 471 N.W.2d 310 ).

¶36 We do not agree with Lee's understanding that the supreme court's statement operates as a mandatory directive in cases like his. First, the operative language of the order (i.e., the "IT IS ORDERED" mandate sections) merely amended SCR 81.02(1) and (2) to reflect the rate increase for court-appointed attorneys. The supreme court rejected other proposed amendments to the rule. Id. at 18-19. Moreover, the supreme court cited Dean as authority for its statement regarding the necessity of court-appointed counsel.

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As we have discussed, Dean does not directly mandate the appointment of counsel under the circumstances present in this case. Instead, we view the order's matter-of-fact statement cited by Lee as being observational in nature.

¶37 The sentence of the order Lee highlights undoubtedly provides support for his

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argument. However, if it is to be construed as a mandatory directive to circuit courts to appoint counsel at county expense in all instances where there are delays in securing SPD-appointed counsel for the defendant, we believe that declaration should come from the Wisconsin Supreme Court. As the supreme court has noted, such a rule would have major budgetary ramifications for Wisconsin's counties. In re the Petition to Amend SCR 81.02 , at 15 (recognizing that an increase in the amount of compensation paid to court-appointed attorneys would have "a profound impact on existing county budgets"). And due consideration should be given to the legislature's creation of the SPD as the primary agency responsible for providing counsel to indigent defendants. See Edwards , 137 Wis. 2d at 76-77, 403 N.W.2d 438. This court's primary function is error correcting, whereas the supreme court oversees and implements the statewide development of the law.

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Blum v. 1st Auto & Cas. Ins. Co. , 2010 WI 78, ¶47, 326 Wis. 2d 729, 786 N.W.2d 78. In such an impactful context, if the rule Lee seeks is to be recognized, it should be left for the supreme court to do so.

III. Properly Exercising Discretion When Making Sua Sponte Assessments of "Cause" Under WIS. STAT. § 970.03

¶38 Our declining to read a mandatory court-appointment requirement into the authorities Lee cites does not mean that the availability of court-appointed counsel should not factor into a circuit court's determination of whether there is good cause to extend the time limit for holding a preliminary hearing based on the SPD's failure to timely appoint counsel for the defendant. Under a prior version of WIS. STAT. § 970.03(2), a circuit court could not adjourn the preliminary hearing for more than ten days without the defendant's consent. See WIS. STAT. § 954.05(1) (1965-66); see also Godard v. State , 55 Wis. 2d 189, 190-91, 197 N.W.2d 811 (1972). The current statute removes that requirement (although it allows for an extension by stipulation) and states that the time limit for holding a preliminary examination may be extended "on motion and for cause." Sec. 970.03(2).

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This case concerns two questions raised by the statute: what constitutes "cause" to extend the time limit, and who may seek an extension? The statutory language leaves "cause" undefined and also is nonspecific as to whose motion it can be.

¶39 Addressing first the latter question, we perceive nothing improper about a circuit court (or a court commissioner) acting sua sponte to extend the time within which to hold the preliminary hearing. Our supreme court has held that identical "on motion" language in WIS. STAT. § 806.07 (as well as in other contexts) permits courts to act on their own motions.

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Larry v. Harris , 2008 WI 81, ¶¶23-25, 311 Wis. 2d 326, 752 N.W.2d 279. Moreover, a court has the inherent, discretionary authority to control its docket. Neylan v. Vorwald , 124 Wis. 2d 85, 94, 368 N.W.2d 648 (1985). "That a court should raise issues sua sponte is the natural outgrowth of the court's function to do justice between the parties." State v. Holmes , 106 Wis. 2d 31, 39, 315 N.W.2d 703 (1982). In this case, the sua sponte review hearings under WIS. STAT. § 970.03(2) had the added benefit of ensuring that a preliminary hearing would not be improperly held while Lee was without counsel.

¶40 Turning to the remaining question, one major focus of the oral argument in this case was which party bears the burden of showing cause under the circumstances here. The State correctly pointed out that, unlike the prosecutor in Selders , the prosecutor here had not requested an adjournment and, in fact, had not attended any of the review hearings. Nor was the preliminary hearing adjourned at Lee's insistence; to the contrary, he expressed dismay at the delays throughout the circuit court proceedings. Both

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parties acknowledged at oral argument the procedural oddity of the situation, where the court sua sponte moved to extend the time limit for the preliminary hearing and where no attorney was present for either party.

¶41 The question of who bears the burden of proof under a statute is a question of law. State v. West , 2011 WI 83, ¶21, 336 Wis. 2d 578, 800 N.W.2d 929. The moving party typically bears the burden of establishing the basis for the desired relief. Wolfe v. Wolfe , 2000 WI App 93, ¶15, 234 Wis. 2d 449, 610 N.W.2d 222 ("A party seeking judicial process to advance [his or her] position carries the burden of proof."). When a circuit court on its own motion extends the time for holding the preliminary hearing, it displaces the typical adversary process in favor of its broader authority to efficiently manage its docket and do justice. See Larry , 311 Wis. 2d 326, ¶23, 752 N.W.2d 279.

¶42 So, how should a circuit court measure whether cause is present to extend the time limit for the preliminary examination under these circumstances? Only two cases appear to have analyzed a court's "good cause" finding: Selders and Crummel v. State , 46 Wis. 2d 348, 174 N.W.2d 517 (1970). In

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Crummel , our supreme court held that WIS. STAT. § 970.03(2) ’s predecessor statute had been complied with when the district attorney requested an adjournment of the preliminary hearing based on the fact that the victim had sustained skull fractures and remained hospitalized. Crummel , 46 Wis. 2d at 353-55, 174 N.W.2d 517. Although the predecessor statute did not expressly require good cause for an adjournment, see id. at 353-54, 174 N.W.2d 517 (citing WIS. STAT. § 954.05(1) (1967-68)), we nonetheless find the court's analysis anecdotally instructive as to what constitutes cause under § 970.03(2). Crummel suggests that a temporary adjournment can be appropriate for the purpose of accommodating evidence-gathering

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objectives that are delayed by circumstances outside of the parties’ control.

¶43 Selders , which was a case decided under WIS. STAT. § 970.03(2), is far more important to Lee's argument that the circuit court erred here. Selders held, as a matter of first impression, that a court's decision to adjourn a preliminary hearing for cause was within the court's discretion. Selders , 163 Wis. 2d at 613-14, 472 N.W.2d 526. The prosecutor in Selders requested that the preliminary examination be postponed until one day after the ten-day time limit would have expired so that the victim could identify the defendant in a line-up. Id. We held that a decision to grant relief from a deadline must be based on two major factors: (1) the justification for the relief sought; and (2) the possible prejudice to the opposing party. Id. at 614-15, 472 N.W.2d 526. In appropriate cases, the public interest may also be considered. Id. at 615, 472 N.W.2d 526. In all, we determined that "the

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court commissioner's grant of a one-day extension was both reasonable and consistent with the law and the facts of record." Id.

¶44 In Lee's case, the repeated sua sponte extensions of the preliminary hearing deadline were based solely upon the SPD's failure to obtain counsel for him. Yet the various judicial actors who extended the time limit for that reason failed to consider many factors that might have had a bearing on that decision. For illustrative purposes, we endeavor to set forth a nonexhaustive list of such factors potentially applicable to Lee. Ultimately, we conclude that various exercises of discretion cannot be sustained in this case. In particular, the facts developed at the November 7, 2018 hearing should have given rise to a more probing inquiry as to the efficacy of appointing counsel for Lee at county expense so as to avoid even further delays.

¶45 Under the "erroneous exercise of discretion" standard, we will not set aside the circuit court's ruling if it appears from the record that the court applied the proper legal standard to the facts before it and, through a reasoned process, arrived at a reasonable conclusion. State v. Pal , 2017 WI 44, ¶13, 374 Wis. 2d 759, 893 N.W.2d 848. "[T]o determine whether the trial court properly exercised its discretion in a particular matter, we look first to the court's on-the-record explanation of the reasons underlying its decision." Burkes v. Hales , 165 Wis. 2d 585, 590, 478 N.W.2d 37 (Ct. App. 1991). While this explanation need not be a lengthy process, the court's statements must "indicate to the reviewing court that the trial court ‘undert[ook] a reasonable inquiry and examination of the facts’ and ‘the record shows that there is a reasonable basis for the ... court's determination.’ "

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Id. at 590-91, 478 N.W.2d 37 (quoting Hedtcke v. Sentry Ins. Co. , 109 Wis. 2d 461, 471, 326 N.W.2d 727 (1982) ).

¶46 While we acknowledge the deferential nature of our standard of review, given the facts of this case and the important liberty interests protected by the time requirements in WIS. STAT. § 970.03(2), we conclude error occurred here. Between September 14 and November 2, the court commissioner held eight review hearings and summarily found good cause to extend the time limit under § 970.03(2) at each of them. As the SPD delay in obtaining counsel for Lee stretched to nearly one month, Lee objected, prompting the court commissioner to state, "I wish I could tell you what the hold up is." Thereafter, the commissioner undertook no further inquiry to determine what was inhibiting the SPD from appointing counsel. The perfunctory review hearings continued even after Lee wrote a pro

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se letter to the circuit court objecting to the delay.

¶47 Lee's letter prompted the circuit court to hold a hearing on November 7, 2018. The court, quite appropriately, expressed concern with the amount of time it was taking to obtain counsel for Lee, and it requested that attorney O'Neill from the SPD's office explain the reasons for the delay. O'Neill represented that "at least 100, if not more" attorneys had been contacted by the SPD to represent Lee. She did not explain—and was not asked—what factors were causing the delay in obtaining counsel. When the court ultimately refused to take action on Lee's letter, it relied on the court commissioner's prior findings of good cause to extend the ten-day time limit for holding a preliminary hearing. As a result, the court's laudable conduct in holding a hearing to address the delay did

[396 Wis.2d 165]

not reveal much additional information regarding the reasons for the delay, nor did the court add to the commissioner's rationale in finding good cause to extend the time limit.

¶48 Thereafter, four additional review hearings were held over the course of more than one month before the SPD obtained counsel for Lee. At nearly every hearing, the presiding circuit court judge or court commissioner expressed dismay at the amount of time Lee had been awaiting the appointment of counsel. Yet, none of them made further inquiries of the SPD office regarding the reason for the delay or considered the possible prejudice Lee suffered by continuing to remain incarcerated without having a preliminary hearing. The commissioner for the first time on November 30, 2018, raised the notion of appointing an attorney for Lee at county expense. The commissioner, however, elected not to make such an appointment solely on the basis that "they're trying not to have to do that"—an apparent reference to the costs the county would incur by it appointing counsel.

¶49 The circuit court also made several relevant observations at the hearing on Lee's motion to dismiss following the SPD's appointment of attorney Lennon. The court stated that it was "very troubled by the length of time that it took" and that the delay in obtaining counsel was "extreme." Although the court rejected Lee's assertion that it had been constitutionally required to appoint an attorney for him at county expense, it observed:

The Court also recognizes that there is a significant overlap in attorneys who accept State Public Defender appointments and those accepting court appointments in criminal cases. If the Court appointed attorneys in any but the most extreme cases, considerable resources

[396 Wis.2d 166]

would have to be devoted by the court to the task of securing attorneys to represent people in criminal cases, just as is occurring with the Public Defenders Office at this time, although certainly the higher rate of pay, in theory, would make it easier to do so.

When denying Lee's motion to dismiss, the court found it sufficient that the "magistrate presiding over Mr. Lee's review hearings found it appropriate to extend the time limits for good cause so under the circumstances, the statutory procedure was fulfilled."

¶50 At oral argument, both parties lamented the inadequate state of the record. Lee argued the record fails to reflect a full and fair consideration of whether there was good cause to extend the time limit under WIS. STAT. § 970.03(2). As a result, Lee asserts the judicial actors who found good cause did not take heed of Selders ’ directive that courts must consider the justification for the adjournment, the possible prejudice to the opposing party, and the public interest. See

[955 N.W.2d 439]

Selders , 163 Wis. 2d at 614-15, 472 N.W.2d 526. The State, meanwhile, asserted that while the reasoning demonstrated on the record at any one individual review hearing might have been inadequate, the record in its totality is sufficient to uphold the denial of Lee's motion to dismiss.

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¶51 We agree with Lee that the record fails to reflect an adequate exercise of discretion at most, if not all, of the review hearings at which good cause under WIS. STAT. § 970.03(2) was found. Certainly, difficulty in locating competent counsel to represent an indigent defendant can be a justifiable reason for extending the time limit for the preliminary hearing, especially early in the proceedings. But simply observing that the defendant has not yet had counsel appointed by the SPD is insufficient to demonstrate a "reasonable inquiry and examination of the facts." See Burkes , 165 Wis. 2d at 590-91, 478 N.W.2d 37 (citation omitted). When the defendant lacks counsel and the State takes no position on a potential extension, a court's sua sponte decision to extend the time limit for a preliminary hearing requires a more robust contextual examination of the Selders factors.

¶52 Here, at least following the November 7, 2018 hearing, the need for additional inquiries into the necessity of the delay, as well as consideration of the alternative mechanism for appointing counsel, should have been obvious. At the November 7 hearing, attorney O'Neill explained that despite contact with 100 or more attorneys over the course of nearly two months, no one willing to represent Lee had been located. There was no inquiry, however, regarding the reasons that

[396 Wis.2d 168]

more than 100 attorneys had declined such representation. Those reasons are important when determining whether there was good cause to extend the time limit for holding the preliminary hearing.

¶53 Counsel can be unavailable for an SPD appointment for a number of reasons. There may be a general or geographic lack of attorneys qualified to accept an appointment for a particular type of case. Moreover, attorneys may have conflicts of interest that preclude them from representing a particular defendant. An attorney's existing caseload may also prevent him or her from taking on another client. Or, as the circuit court here speculated, attorneys may not be willing to represent clients at the statutory SPD rate. Given the foregoing, when a circuit court or court commissioner moves sua sponte to extend the preliminary hearing deadline based on a lack of appointed counsel, some factors it should consider—especially as the delay continues—are the nature of the charges against the defendant, the extent of the SPD's efforts to locate counsel, the reasons for the delay in obtaining counsel, and how

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long that delay is likely to continue given the other circumstances.

¶54 The circuit court should also consider alternate avenues of procuring counsel, like court appointment. It could be that this approach is no more fruitful. As the court here recognized, the group of attorneys who will accept SPD appointments may be the same group of attorneys who will accept a court appointment. Or, there may be no available attorneys who are qualified to provide competent representation in a given type of case. But if, as Lee suggests, attorneys are declining SPD appointment based on low pay rates, a higher court appointment rate might prove

[396 Wis.2d 169]

more compelling to private attorneys. Thus, the availability of court-appointed counsel may impact whether there is good cause to extend the time limit for the preliminary hearing under WIS. STAT. § 970.03(2).

¶55 Based on the comments of the circuit court and court commissioner, it seems that a court appointment might have been a viable alternative mechanism to obtain counsel for Lee. The only justification provided for not making such an appointment was the cost to the county. This strikes us as an incomplete balancing of interests. Among other considerations, and generally speaking, persons awaiting a preliminary hearing are held in county jails, see WIS. STAT. § 302.31(1), and the county must bear the costs of incarcerating such individuals, see WIS. STAT. § 302.33(1). While we agree that the cost to appoint counsel at county expense can be a valid consideration, the court must also take into account the cost to the county of continuing to incarcerate the defendant while awaiting the preliminary hearing.

¶56 Case law also establishes that the circuit court should consider the special circumstances of the defendant and whether the purpose of the preliminary hearing will be thwarted by the delay. Again, the preliminary hearing is designed "to ensure that people are not held for unreasonably long periods of time where the possibility exists that the State cannot muster even minimal proof in support of the allegations set out in the petition or complaint."

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State v. Brissette , 230 Wis. 2d 82, 88, 601 N.W.2d 678 (Ct. App. 1999). Here, Lee's counsel at the initial appearance on September 11, 2018, stated that Lee was subject to an extended supervision hold. The fact that a defendant would (or could) remain in custody regardless of whether the preliminary hearing was delayed may be a factor bearing upon a finding of good cause in a particular case. "There is no need to safeguard against unreasonable intrusions on the person's liberty ... when he or she is already in custody pursuant to some other sentence." Id.

¶57 The overall length of the delay is also a factor that must have significance to the determination of whether there is good cause under WIS. STAT. § 970.03(2). Here, 101 days elapsed between the conclusion of Lee's initial appearance and when counsel was appointed for him. During that time, there were twelve review hearings, and the record shows there was no reason presented at any such hearing to expect that counsel would soon be forthcoming. The circuit court and court commissioner labeled the delay "extreme" and "frustrating" in response to Lee's repeated protestations

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about his lack of counsel. As stated above, while the SPD bears the primary statutory responsibility for obtaining counsel for indigent defendants, when there is an extended breakdown of that process, it is incumbent upon a circuit court to consider alternative mechanisms for appointing counsel. If there has been a speedy trial demand, the length of the delay is an even more significant consideration.

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¶58 Relatedly, and as was made explicit in Selders , a circuit court must consider the potential for prejudice to the defendant arising out of an extension of the deadline for holding the preliminary hearing. See Selders , 163 Wis. 2d at 614-15, 472 N.W.2d 526. In particular, Lee argues he "did not have counsel to investigate the charges, preserve evidence, or consult with when law enforcement sought a custodial interrogation." The court should consider potential prejudice arising from one or more delays, including the potential that the defendant will be subjected to further evidence gathering by police while incarcerated and the possibility that the delay could compromise the defense or result in lost evidence, to the defendant's detriment.

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¶59 In all, we conclude that when a circuit court or a court commissioner sua sponte extends the time limit for holding a preliminary hearing under WIS. STAT. § 970.03(2) based on delays in the SPD appointment of counsel for the defendant, it must conduct a relatively thorough inquiry that ensures there is good cause for the extension. The inquiry's level of thoroughness will be reflective of overall length of the delay in each case. The procedure we endorse today bears some similarity to that articulated in State ex rel. La Crosse Tribune v. Circuit Court for La Crosse County , 115 Wis. 2d 220, 236-37, 340 N.W.2d 460 (1983), for determining how a court should set forth its exercise of discretion in deciding to close a courtroom to the public. The court should recite on the record the factors that lead it to find good cause and why such factors override the statutory directive that a preliminary hearing be promptly held. The justification

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for extending the time limit must be set forth with reasonable specificity, and the court must consider countervailing factors and what weight to give them. In all,

[t]he process must be a rational one, and the rationality of it must be demonstrated on the record, showing that the conclusion was reached on facts of record or which are reasonably derived by inference from the record. Upon review an appellate court should be able to determine from the record whether discretion was in fact exercised and whether a reasonable judicial mind could have reached the conclusion it did.

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Id. Most, if not all, of the review hearings in this case were insufficient to satisfy this standard; the later hearings are of particular concern, given the delays that had occurred by the time they were held.

IV. The Proper Remedy for Violations of WIS. STAT. § 970.03

¶60 A question remains regarding the remedy to which Lee is entitled. Lee argues—and reiterated at oral argument—that he believes dismissal of the criminal complaint with prejudice is warranted. He frames the erroneous exercise of discretion in this case as a failure to comply with a statutory mandate pertaining to the exercise of subject matter jurisdiction—i.e., a lack of competency. See Village of Trempealeau v. Mikrut , 2004 WI 79, ¶9, 273 Wis. 2d 76, 681 N.W.2d 190 ; see also id. , ¶13 (noting "[m]any ‘loss of competency’ cases involve noncompliance with statutory time limitations").

¶61 We disagree. Wisconsin law for decades has held that the failure to hold a preliminary hearing within the prescribed time results in a loss of personal jurisdiction, which requires only a dismissal without prejudice. In State ex rel. Klinkiewicz v. Duffy , 35 Wis. 2d 369, 375, 151 N.W.2d 63 (1967), our supreme court observed that a dismissal based on an unlawful adjournment of the preliminary hearing "does not

[396 Wis.2d 174]

preclude the state from initiating a new prosecution for the same offense absent the running of the statute of limitations." The supreme court put it more pointedly in State v. Stoeckle , 41 Wis. 2d 378, 164 N.W.2d 303 (1969), when, upon observing that there is no time limit for a trial following bindover, the court asked rhetorically why the law should "require dismissal with prejudice for failure to hold a preliminary examination in the required time and yet demand no exact time period for the commencement of the trial itself?" Id. at 386-87, 164 N.W.2d 303. Other cases echo these holdings. See Armstrong v. State , 55 Wis. 2d 282, 285, 198 N.W.2d 357 (1972) ; Godard , 55 Wis. 2d at 190-91, 197 N.W.2d 811 ; Logan v. State , 43 Wis. 2d 128, 138-39, 168 N.W.2d 171 (1969).

¶62 Lee also presses constitutional claims regarding the alleged deprivation of his due process rights and the denial of his rights to counsel and to a speedy trial. The doctrine of constitutional avoidance counsels against our addressing constitutional questions if there is a sufficient statutory basis to decide the case. See Labor & Farm Party v. Elections Bd., State of Wis. , 117 Wis. 2d 351, 354, 344 N.W.2d 177 (1984). To the extent that Lee would be entitled to any greater relief on his constitutional

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claims than on his statutory claim, we conclude his constitutional arguments are either obviously deficient or underdeveloped. See

[396 Wis.2d 175]

State v. Pettit , 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (holding that we may decline to reach issues that are inadequately briefed). Here, the court should have dismissed the complaint against Lee without prejudice based solely on the failure to properly find good cause to delay the preliminary hearing. We therefore reverse the order and remand with directions for it to do so.

By the Court. —Order reversed and cause remanded with directions.