State v. Nhia Lee

2021 WI App 12
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP221-CR

†Petition for Review Filed

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

NHIA LEE,

†DEFENDANT-APPELLANT.

Opinion Filed: January 20, 2021
Submitted on Briefs:
Oral Argument: October 28, 2020

JUDGES: Stark, P.J., Hruz and Seidl, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: 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.

Respondent
ATTORNEYS: 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.

2
2021 WI App 12

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 20, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2019AP221-CR Cir. Ct. No. 2018CF1025

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

NHIA LEE,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Marathon County:
LAMONT K. JACOBSON, Judge. Reversed and cause remanded with directions.

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

¶1 HRUZ, J. 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-
No. 2019AP221-CR

18).1 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 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

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

2
No. 2019AP221-CR

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 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 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.2 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

2
Lee was arrested on September 1, 2018. Following his arrest, Lee was charged for the
drug offenses under a different case number, but that case was dismissed after authorities
discovered that Lee had misrepresented his identity. Lee had made an initial appearance in that
earlier case but had not received a preliminary hearing.

3
No. 2019AP221-CR

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 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.”

4
No. 2019AP221-CR

¶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 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 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.3 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.4 At the October 26, 2018 review hearing, the

3
The transcripts of the review hearings oftentimes contain an “unintelligible” designation
for Lee’s statements. Lee was appearing by video from the jail, and the proceedings were digitally
recorded. Although not all of Lee’s statements were transcribed, in context it is clear that Lee was
expressing concern with the amount of time he had been in custody without counsel.
4
Lee also sought bail modification, which ultimately was denied.

5
No. 2019AP221-CR

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
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-

6
No. 2019AP221-CR

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.

¶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.5 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 hold review hearings
on a biweekly schedule rather than weekly. When Lee further questioned the delay,

5
When Lee seemed to express confusion about the distinction between his constitutional
rights and his statutory right to a timely preliminary hearing, the court commissioner advised him
that the constitutional rights that were potentially impacted were his rights to due process, to
counsel, and to a speedy trial. However, Lee was repeatedly informed that the commissioner could
not provide him with legal advice.

7
No. 2019AP221-CR

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 authority to appoint counsel for him at
county expense, and that its failure to do so and to hold a preliminary hearing within
the statutory time limits deprived the court of personal jurisdiction over him. The

8
No. 2019AP221-CR

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.6

¶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

6
Attorney Lennon declined the circuit court’s invitation for an evidentiary hearing to
establish these facts for purposes of the motion to dismiss because she did not know the names of
the law enforcement officers who participated in the additional investigations and did not want her
client to testify. Lennon had apparently requested information from the State but had not yet
received a response. Nonetheless, Lennon stated she believed one detective had relevant
information and offered to subpoena her testimony. The court stated it appeared the potential
remedy was “more in the nature of suppression or for failure to honor [the] request for an attorney,”
and no evidentiary proceedings were ever conducted.

9
No. 2019AP221-CR

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 proceedings7; 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 by the length of time that it took.” The court also determined that the
statutory time limits under 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.8

7
See State v. Schaefer, 2008 WI 25, ¶84, 308 Wis. 2d 279, 746 N.W.2d 457 (noting that
the preliminary hearing is a critical stage of a prosecution at which a defendant is constitutionally
entitled to the assistance of counsel).
8
Leave to appeal a non-final order was granted by order of this court dated November, 20,
2019. This court, on its own motion, invited amicus curiae participation in this matter by the SPD.
Oral argument was held on October 28, 2020.

10
No. 2019AP221-CR

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 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

11
No. 2019AP221-CR

preliminary hearing “[o]n stipulation of the parties or on motion and for cause.”9
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 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. 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

9
In full, WIS. STAT. § 970.03(2) provides:

The preliminary examination shall be commenced within 20 days
after the initial appearance of the defendant if the defendant has
been released from custody or within 10 days if the defendant is
in custody and bail has been fixed in excess of $500. On
stipulation of the parties or on motion and for cause, the court may
extend such time.

Although WIS. STAT. § 970.03(2) uses the word “cause,” the parties, as well as the various
judicial actors who conducted Lee’s review hearings, have used the phrase “good cause.” For
purposes of this opinion, we perceive no difference between these terms.

12
No. 2019AP221-CR

to hold the preliminary hearing.10 That cause was based entirely on the SPD’s
failure to locate counsel for Lee.11 The State contends that the SPD’s 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

10
The thirteenth review hearing, on December 28, 2018, took place after the appointment
of counsel, and the court commissioner’s good cause finding was based on scheduling conflicts on
the court calendar. Accordingly, we do not consider that hearing in our review.
11
The parties and the amicus appear to agree that the fact that Lee was provided temporary
counsel at the initial appearance is immaterial to the issue presented on appeal. The SPD must
make a determination of indigency “as soon as possible” to determine eligibility for SPD-appointed
counsel. WIS. STAT. § 977.07(1)(a). Consistent with this directive, amicus represents that it
provides “limited scope representation … at bail hearings and initial appearances prior to the
appointment of counsel” pursuant to SCR 20:1.2(c)(1)d.

According to the amicus, the procedure for securing this limited scope representation varies
by county, but “generally an SPD staff attorney is assigned to evaluate whether individuals
scheduled for initial appearances or bail hearings qualify for SPD representation.” The staff
attorney is provided with limited information about the case (often right before or at the hearing)
and “likely has had limited contact with the defendant prior to the hearing.” Therefore, the
representation provided at the initial appearance is limited only to arguing bail and raising obvious
problems with the charging document.

13
No. 2019AP221-CR

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.” 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),12 and appoints a 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).13 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

12
The board has exercised its rule-making function by promulgating financial criteria
contained in WIS. ADMIN. CODE ch. PD 3 (Jan. 2014).
13
For rules relating to the process of assigning counsel, see generally WIS. ADMIN. CODE
ch. PD 2 (May 2010).

14
No. 2019AP221-CR

in 1977, leading to widespread difficulties in finding attorneys willing to accept SPD
appointments at such a low rate.14

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 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.

¶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 (quoting Sparkman, 27 Wis. 2d at 98). 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.

14
Effective January 1, 2020, the legislature increased the rate paid to private attorneys for
SPD appointments from $40 to $70 an hour. 2019 Wis. Act 9, §§ 2244, 2245. The SPD expresses
optimism that this increase will help staff in finding attorneys willing to accept SPD cases, but it
cautions that the breadth of the anticipated improvement is unknown given both the recentness of
the change and the intervening SARS-CoV-2 pandemic.

15
No. 2019AP221-CR

¶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. As a result, the costs of court-appointed attorneys must be
borne by the county of venue and are considered operating costs of circuit courts
under WIS. STAT. § 753.19. Edwards, 137 Wis. 2d at 82-83. 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.

¶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. 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 (quoting Edwards, 137 Wis. 2d at 85). But Dean did not declare that these

16
No. 2019AP221-CR

requirements are satisfied solely because there is a delay in obtaining SPD-
appointed counsel for approximately three months or less, as occurred here.15

¶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).

¶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

15
Additionally, we note that in State v. Dean, 163 Wis. 2d 503, 471 N.W.2d 310 (Ct. App.
1991), the effect of a contrary holding would have been to authorize the prosecution of an indigent
defendant without his or her representation by counsel. In this case, it is undisputed that Lee was
entitled to an attorney—the only questions were when he would receive one, which entity would
pay that attorney, and whether the delay in procuring counsel caused a violation of WIS. STAT.
§ 970.03(2) and, potentially, his related constitutional rights.

17
No. 2019AP221-CR

18-19. Moreover, the supreme court cited Dean as authority for its statement
regarding the necessity of court-appointed counsel. As we have discussed, Dean
does not directly mandate the appointment of counsel under the circumstances
present in this case.16 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 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. This court’s primary function is error correcting, whereas the supreme
court oversees and implements the statewide development of the law. 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.

16
Even if one were to construe In re the Petition to Amend SCR 81.02 in the manner Lee
suggests, there are several pertinent issues that were left unaddressed by the order. See S. CT.
ORDER 17-06, 2018 WI 83 (eff. Jan. 1, 2020). Importantly, the order is silent regarding when a
circuit court’s obligation to appoint an attorney at county expense is triggered, or what standards
should be used to deem the pool of potential SPD-appointed counsel “unavailable” or “unwilling”
to represent a particular client. Additionally, the order does not directly reference the ten-day time
limit for holding a preliminary hearing.

18
No. 2019AP221-CR

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)17 and states that the time limit for holding a preliminary
examination may be extended “on motion and for cause.” Sec. 970.03(2). 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. Larry v. Harris, 2008 WI 81, ¶¶23-25,
311 Wis. 2d 326, 752 N.W.2d 279. Moreover, a court has the inherent, discretionary

17
We note that WIS. STAT. § 970.03(2) permits a stipulated extension of the time limit for
the preliminary hearing. As noted elsewhere in this opinion, nowhere does the record indicate that
Lee consented to any of the extensions; rather, he was persistent in his demand for an attorney and
repeatedly objected, pro se, to the delays in both obtaining counsel and holding the preliminary
hearing. Moreover, the preliminary hearing could not occur without appointing an attorney for
Lee, at least not without violating Lee’s constitutional right to counsel.

19
No. 2019AP221-CR

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 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.

20
No. 2019AP221-CR

¶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).18 In 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. Although the
predecessor statute did not expressly require good cause for an adjournment, see id.
at 353-54 (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 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.
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

18
Other cases have considered post hoc challenges to a conviction based upon the alleged
untimeliness of the preliminary hearing, but they did not directly involve adjournments for cause.
See State v. Robles, 157 Wis. 2d 55, 59-60, 458 N.W.2d 818 (Ct. App. 1990), aff’d sub nom., State
v. Martin, 162 Wis. 2d 883, 470 N.W.2d 900 (1991) (applying waiver principles to hold that the
defendant was not entitled to relief because the defendant’s conduct resulted in the breach of the
time limit); State v. Horton, 151 Wis. 2d 250, 255-56, 445 N.W.2d 46 (Ct. App. 1989) (holding
that the time limit contained in WIS. STAT. § 970.03(2) does not apply upon remittitur when the
defendant pursues an interlocutory appeal prior to the preliminary hearing and lower court
proceedings are stayed pending the appeal’s resolution).

21
No. 2019AP221-CR

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. In
appropriate cases, the public interest may also be considered. Id. at 615. In all, we
determined that “the 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

22
No. 2019AP221-CR

‘the record shows that there is a reasonable basis for the … court’s determination.’”
Id. at 590-91 (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 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 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.

23
No. 2019AP221-CR

¶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 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

24
No. 2019AP221-CR

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 Selders,
163 Wis. 2d at 614-15. 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.19

¶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

19
In the State’s view, the totality of the record is what matters, as this appeal comes to us
from the denial of Lee’s motion to dismiss. The motion to dismiss, however, was predicated upon
an alleged lack of good cause—or, at least, the erroneous exercise of discretion in finding good
cause existed. We believe this situation requires an analysis of the exercise of discretion at the time
it was made (i.e., at each of the review hearings in this case), not as a collective whole.

Our analysis in this regard is not an invitation to hold more sporadic review hearings than
occurred in this case. Although WIS. STAT. § 970.03(2) does not specify the length of an extension
of the time limit for holding the preliminary hearing, the overarching goal should be to obtain
competent counsel for indigent defendants as expeditiously as possible so as to achieve the purpose
of the preliminary hearing. After all, the legislature has expressly limited the default deadline to
only ten days, such that extensions of time that are much longer than that time period appear to run
afoul of the legislature’s intent.

25
No. 2019AP221-CR

is insufficient to demonstrate a “reasonable inquiry and examination of the facts.”
See Burkes, 165 Wis. 2d at 590-91 (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
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 long that delay is likely to continue given the other circumstances.

26
No. 2019AP221-CR

¶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 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).20 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.

20
Counties may enact ordinances authorizing them to seek reimbursement for certain
costs, including the “actual per-day cost of maintaining that prisoner” for the period of pretrial
detention. See WIS. STAT. § 302.372(2)(a)1. We take no position on whether or how the existence
of such an ordinance should affect the balancing of interests in a particular case.

27
No. 2019AP221-CR

¶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.” 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 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

28
No. 2019AP221-CR

there has been a speedy trial demand, the length of the delay is an even more
significant consideration.21

¶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. 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.22

21
Although Lee vociferously argues that the preliminary hearing exists to protect the
defendant’s speedy trial right, our supreme court has stated that is not necessarily the purpose of
the statute. See State v. Stoeckle, 41 Wis. 2d 378, 386, 164 N.W.2d 303 (1969). Importantly, the
preliminary examination is a creature of statute and is not mandated by the federal or state
constitutions. State v. O’Brien, 2013 WI App 97, ¶15, 349 Wis. 2d 667, 836 N.W.2d 840, aff’d,
2014 WI 54, 354 Wis. 2d 753, 850 N.W.2d 8. Although the preliminary hearing does not primarily
protect the defendant’s right to a speedy trial, the length of the delay in holding the preliminary
hearing might inform a circuit court’s good cause determination to the extent it impacts the
weighing of the various interests, including a defendant’s eventual invocation of his or her speedy
trial right under WIS. STAT. § 971.10.
22
At oral argument, the State raised a concern that such an assessment of prejudice would
require Lee to be placed under oath to offer testimony, which would be problematic, especially
without the assistance of counsel. We do not necessarily share the State’s concern, and we do not
hold that an evidentiary hearing—much less a formal one—is required each time the circuit court
moves sua sponte to extend the statutory time limit.

29
No. 2019AP221-CR

¶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 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.

Rather, what we require is an on-the-record consideration of the potential prejudice to the
defendant as a result of the delay in holding the preliminary hearing. Such prejudice may be
obvious based upon the nature and contents of the complaint and the evidence-gathering efforts
already undertaken by the police. Or, the defendant may offer such information after being duly
warned of the effect of any such statements; here, the court commissioner engaged in ex parte
discussions with Lee, and Lee was quite vocal in repeatedly objecting to the fact that he was left
without counsel while his case languished despite the ten-day time limit contained in WIS. STAT.
§ 970.03(2). Regardless, we leave for another day the nuances and proper limits of a court’s
inquiries in this regard.

30
No. 2019AP221-CR

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.23 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 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

23
Because a violation of the statutory time limit for holding the preliminary hearing results
in a loss of personal jurisdiction, the defendant must timely raise the issue or risk forfeiting his or
her objection. See Skindzelewski v. Smith, 2020 WI 57, ¶20, 392 Wis. 2d 117, 944 N.W.2d 575;
see also Robles, 157 Wis. 2d at 60; Logan v. State, 43 Wis. 2d 128, 138-39, 168 N.W.2d 171
(1969). Clearly, there is no such concern in this case.

31
No. 2019AP221-CR

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. 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; 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 claims than on his statutory claim, we conclude his
constitutional arguments are either obviously deficient or underdeveloped. 24 See

24
Lee’s due process argument relies on Jauch v. Choctaw County, 874 F.3d 425 (5th Cir.
2017). Although the court discussed the evils of prolonged pretrial detention, it did so with the
important qualification that the detention in that case occurred “without an arraignment or other
court appearance.” Id. at 432. Here, a probable cause determination was made during Lee’s initial
appearance under State v. Koch, 175 Wis. 2d 684, 698-99, 499 N.W.2d 152 (1993), thereby
satisfying the requirements of County of Riverside v. McLaughlin, 500 U.S. 44 (1991).

As for Lee’s vague assertions that his rights to counsel and to a speedy trial were violated,
he fails to develop key aspects of these claims. Lee was provided counsel during the initial
appearance and the preliminary hearing, and, beyond his summary assertions, he fails to
demonstrate that the period between those hearings was a “critical stage” of the proceeding to which
the right to counsel would attach. See State v. Forbush, 2011 WI 25, ¶16, 332 Wis. 2d 620, 796
N.W.2d 741. Furthermore, as noted above, see supra ¶20 & n.6, the evidentiary record is
incomplete regarding some of Lee’s claims as to prejudice and what occurred before he was
appointed counsel.

32
No. 2019AP221-CR

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.

Regarding his speedy trial claim, Lee’s briefing was unclear about whether he was raising
an independent speedy trial claim or merely asserting that the prompt appointment of counsel was
important to preserve a defendant’s speedy trial right. At oral argument, Lee’s counsel clarified
that she was intending to make both arguments. However, Lee undertook no analysis of the factors
outlined in State v. Lock, 2013 WI App 80, ¶21, 348 Wis. 2d 334, 833 N.W.2d 189, which
determine whether a speedy trial violation occurred.

33