Please ensure Javascript is enabled for purposes of website accessibility

Court Error – Abuse of Discretion – Substitute Counsel

By: Derek Hawkins//September 18, 2019//

Court Error – Abuse of Discretion – Substitute Counsel

By: Derek Hawkins//September 18, 2019//

Listen to this article

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Patrick D. Zolliecoffer

Case No.: 2018AP1639-CR

Officials: Kessler, Brennan and Kloppenburg, JJ.

Focus: Court Error – Abuse of Discretion – Substitute Counsel

Patrick D. Zolliecoffer seeks a new trial after his convictions for disorderly conduct, battery to a law enforcement officer, and attempted disarming of a peace officer. He contends on appeal that the trial court erred when it denied his motion to substitute counsel on the eve of trial and when it denied his Batson motion challenging two of the State’s peremptory strikes as racially based.

The State argues that Zolliecoffer is not entitled to a new trial. The State argues the trial court properly exercised its discretion in denying Zolliecoffer’s motion to substitute counsel because he made it the Friday before the Monday start of trial, the case had been pending eight months, he had been permitted to substitute counsel previously, and he had been granted adjournments previously. The State notes that the trial court said the motion “appeared to, perhaps, be for the purpose of delay.” The State also argues that Zolliecoffer offered no reason as to why he could not proceed with his assigned counsel. As to his Batson challenge, the State concedes the trial court failed to make the factual determinations that the Batson analysis requires. It argues that Zolliecoffer is entitled to a remand for a hearing for the trial court to rule on the Batson challenge.

For the following reasons, we conclude that the trial court did not erroneously exercise its discretion when it denied Zolliecoffer’s motion for substitution of counsel. We also conclude that the trial court erred in denying Zolliecoffer’s Batson motion because it failed to apply the Batson analysis and make the findings necessary to the application of that analysis. We must remand for the trial court to do so because we are precluded from making findings of fact. See Wurtz v. Fleischman, 97 Wis. 2d 100, 107 n.3, 293 N.W.2d 155 (1980) (holding that WIS. CONST. art. VII, § 5(3), “precludes [the court of appeals] from making any factual determinations where the evidence is in dispute”). We therefore affirm in part, reverse in part and remand for a hearing on the Batson challenge.

Full Text


Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests