State v. Winston B. Eison

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.
May 19, 2020
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. 2018AP1058 Cir. Ct. No. 2006CF2202

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

WINSTON B. EISON,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
JOSEPH R. WALL, Judge. Affirmed.

Before Brash, P.J., Dugan and Fitzpatrick, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP1058

¶1 PER CURIAM. Winston B. Eison, pro se, appeals an order denying
the motion he filed pursuant to WIS. STAT. § 974.06 (2017-18).1 He seeks a new
trial. As grounds, Eison claims that he received ineffective assistance from the
attorney who represented him in his first postconviction motion because the
attorney failed to assert that Eison was wrongly denied his right to represent
himself at trial. The circuit court rejected the claim, and we affirm.2

BACKGROUND

¶2 Eison’s appellate challenge involves a collateral attack on his
conviction, but the issue he raises requires a substantial overview of the procedural
history of the pretrial and trial proceedings in this matter. We begin with that
overview.

¶3 The State filed a complaint on April 30, 2006, charging Eison with
armed robbery and false imprisonment. According to the complaint, Eison
confronted A.C. in an underground garage in Milwaukee, Wisconsin on April 21,
2006, forced her into her car’s passenger seat at gunpoint, and drove out of the
garage in her car with A.C. inside. Eventually, he pulled to the side of a city
street, ordered A.C. out of her car, and drove away with her purse and wallet.
Police arrested Eison four days later as he fled from a vehicle stolen in a different

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
The Honorable Joseph R. Wall presided over the postconviction motion underlying this
appeal. We refer to Judge Wall as the circuit court. The Honorable Mel Flanagan presided over
the pretrial proceedings through May 2007. Thereafter, the Honorable Thomas P. Donegan
presided over the pretrial proceedings, as well as the trial, the sentencing, and Eison’s first
postconviction motion. We refer to both Judge Flanagan and Judge Donegan as the trial court.

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robbery that occurred in Shorewood, Wisconsin.3 A.C. picked Eison out of a line
up as the person who robbed and imprisoned her.

¶4 The State Public Defender’s Office appointed an attorney to
represent Eison but that attorney moved to withdraw in July 2006, because Eison
was dissatisfied with the number of times that counsel had conferred with him.
The circuit court granted the motion to withdraw and, in early August 2006, the
State Public Defender’s Office appointed a second attorney for Eison. Following
an October 2006 court appearance attended by Eison and his new counsel, the
matter was set for a jury trial in February 2007.

¶5 At a motion hearing in January 2007, Eison asked the circuit court
for a different trial counsel. He complained that his trial counsel had not filed the
motions he wanted to pursue and had not maintained adequate contact with him.
He also alleged that trial counsel was not prepared for trial, and he emphasized
that trial counsel had not contacted his witnesses, particularly an alibi witness
named “John.” Eison acknowledged, however, that he had no other identifying
information for the alleged alibi witness. The trial court determined that Eison’s
proposed pretrial motions were groundless and found no basis to replace his trial
counsel but did reschedule the trial for March 2007 to permit trial counsel to look
for the alibi witness.

¶6 On February 28, 2007, Eison filed a letter that began: “I have
decided to represent myself in my upcoming jury trial.” He added that he did “not
wish to waive [his] right to counsel,” but he also did not want his current counsel

3
The record reflects that Eison was not charged in the Shorewood robbery.

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to continue with the representation in light of a “huge communication gap.” He
went on to ask the trial court to adjourn the trial to permit him time to prepare. At
a subsequent hearing, the trial court denied Eison’s request to represent himself
but the trial court also said that it would reconsider the request at the next court
date if he wished. The trial court then adjourned the trial until June 2007 to permit
an additional pretrial hearing in May 2007. The trial court added, however, that
the case was “a year old. We’re not go[ing to] keep coming back because there
[are] new issues that you want to bring up before the court. So we have one
motion date, where we will complete all the pending motions.”

¶7 At the motion hearing on May 9, 2007, Eison renewed his request to
represent himself. The trial court granted the request, directing his appointed trial
counsel to serve as stand-by counsel instead. The trial was adjourned to
August 20, 2007, to permit Eison time to look for his alibi witness and to file a
notice of alibi.

¶8 In mid-July 2007, Eison submitted a written motion to extend the
deadline for filing a notice of alibi, alleging that he had not yet found his alibi
witness. On August 20, 2007, he moved to adjourn the trial based on the same
allegation. The trial court granted both motions but cautioned him that his pro se
status could not “be used as a method for continually adjourning trial.”

¶9 On November 2, 2007, the circuit court conducted a lengthy hearing
on motions that Eison filed pro se. At the conclusion of that hearing, Eison asked
the trial court to reinstate his standby counsel as counsel of record instead.
Standby counsel then advised the trial court that his law license would be
suspended for two months. The trial court directed standby counsel to seek

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guidance from the State Public Defender’s Office about a potential reappointment
as counsel of record.

¶10 At a status conference on January 17, 2008, a new attorney appeared
with Eison as successor counsel and explained that, due to standby counsel’s
license suspension, the State Public Defender’s Office had appointed new counsel
in the matter. The attorney further advised that Eison wanted representation, not
standby counsel. The trial court said that, in its view, Eison should have
representation. Eison agreed, and the trial court said that it would appoint the new
attorney as Eison’s counsel of record. Eison responded, “that’s okay.”

¶11 In subsequent pretrial proceedings, the trial court scheduled the trial
for June 2, 2008, and the parties appeared on that date. Eison asked to discharge
his trial counsel because the attorney had not located the alleged alibi witness or
obtained video footage that Eison claimed would demonstrate that he was on a
Milwaukee city bus at the time that A.C. was robbed. In response, trial counsel
asserted that Eison had not provided the information necessary to locate the
witness and, as to video footage, trial counsel said he had relied on prior counsel’s
assertion that such video was unavailable. The trial court determined that Eison’s
allegations about his attorney’s failures required further inquiry and, therefore,
adjourned the trial. The trial court nonetheless observed that it was “leery of these
claims” and that, in its view, Eison was “attempting to delay delay delay.”

¶12 At a status conference on July 22, 2008, trial counsel reported that
hoped-for video of the Milwaukee city bus did not exist. Further, trial counsel was
not able to locate the alibi witness because the family member who could
allegedly identify that witness would not answer the telephone or reply to
counsel’s letters. Eison responded by first requesting a new attorney of record and

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then requesting new standby counsel. The State urged the circuit court to deny the
requests and set the matter for trial, noting that appointing new counsel would
occasion more delay in a case that had been pending for more than two years and
where the victim was a senior citizen.4 The trial court agreed with the State,
finding that the case was “very old,” that Eison was responsible for most of the
delay, and that he had not presented anything that raised a doubt about the
adequacy of his trial counsel’s representation.

¶13 Trial counsel then advised that Eison wanted to represent himself.
The trial court said it would consider that request on the first day of trial, which
the trial court scheduled for September 8, 2008.

¶14 On September 8, 2008, the parties convened for trial. Eison, acting
on his own behalf, requested an adjournment on the grounds that his trial counsel
was not prepared and the State had withheld discovery. The trial court questioned
the State and defense counsel about Eison’s allegations. Following a close and
extended inquiry, the trial court concluded that the allegations had previously been
litigated and rejected, no basis existed for Eison’s discovery requests, and nothing
suggested that the State had acted improperly. Eison responded that he did not
want to continue with his current counsel and moved the trial court to discharge
counsel for failing to provide an “effective defense.” The trial court denied the
motion, finding that the case had been “delayed a long time,” trial counsel was
prepared for trial, and “there [wa]s no further basis for delaying this trial.”

4
The victim was seventy-eight years old at the time of the crime.

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¶15 Eison then renewed his request to proceed pro se. He explicitly
admitted, however, that he was not yet prepared to try the case. The trial court
reminded Eison that his appointed counsel was ready to proceed, and Eison
responded that his appointed counsel was not “credible [sic] to represent” Eison.
The trial court responded: “I find [that] you are going to find that for any
attorney[,] to delay this as much as you can.”

¶16 The trial court went on to rule that Eison could not represent himself
effectively and was engaged in a ploy to avoid trial:

Based on the manner in which you have attempted
to represent yourself by way of pro se motions, letters to
the court, statements in court, I find you cannot limit
yourself to stay within the rules of this proceeding,
including relevancy determinations, issues of prejudice,
timeliness. I don’t believe you could possibly, effectively
represent yourself, and it is my obligation to do my best to
assure a fair result. Whether that’s a result either party
wants isn’t my issue, that it’s fair is.

And the proceedings in this case up to now which
essentially you have just kept this forum from getting to the
nub of the issue is a trial, has so far been defeating the right
of, to reach a fair result.

So I find that it’s an actual disability on your part to
make a meaningful defense, and I would not allow you to
represent yourself.

Accordingly, the trial court denied Eison’s request to proceed pro se, and the trial
commenced with Eison represented by counsel.

¶17 On the third day of trial, outside the presence of the jury, trial
counsel raised four evidentiary objections, explaining that Eison personally
requested rulings on the matters. Trial counsel also raised a fifth issue that
counsel described as his “own thing,” namely, that two weeks earlier Eison had
filed a grievance against trial counsel with the Office of Lawyer Regulation and

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No. 2018AP1058

had only just disclosed the grievance to trial counsel. Trial counsel expressed
concern about a potential conflict of interest but then conferred with Eison off the
record. Trial counsel next advised the trial court: “all he is wishing right now is
... for the [c]ourt to rule one way or the other in regards to these objections that he
has requested.... [H]e says that he is otherwise, you know, satisfied, would like
me to continue on as his lawyer.” The trial court asked Eison directly if that
assertion was correct. Eison replied, “[y]es sir.”

¶18 The trial continued for a fourth day. The jury found Eison guilty as
charged.

¶19 The State Public Defender’s Office appointed postconviction and
appellate counsel for Eison, and he pursued a postconviction motion raising
challenges to the admission of certain evidence at trial. The trial court denied the
motion, Eison appealed, and we affirmed. See State v. Eison (Eison I),
No. 2010AP909-CR, unpublished slip op. (WI App Mar. 1, 2011).

¶20 Eison, pro se, next filed the postconviction motion underlying this
appeal. As relevant here, he alleged that the trial court wrongly denied him the
right to represent himself, and that his appointed postconviction counsel was
ineffective for failing to raise this claim. In a written order, the circuit court
denied the motion without a hearing, finding that “the issue of self-representation
was addressed by [the trial court], [which] stated very specific reasons for denying
[Eison’s] request and suggested that [Eison] was using it as a delay tactic.” The
circuit court concluded that the trial court reasonably denied Eison’s request to
proceed pro se and, therefore, postconviction counsel was not ineffective for
failing to pursue the issue. Eison appeals.

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DISCUSSION

¶21 Defendants have a constitutional right to represent themselves under
both the Sixth Amendment to the United States Constitution and article I, section 7
of the Wisconsin Constitution. See State v. Egerson, 2018 WI App 49, ¶10, 383
Wis. 2d 718, 916 N.W.2d 833. Eison claims that the trial court denied him that
right.

¶22 WISCONSIN STAT. § 974.06 is the mechanism for a prisoner such as
Eison to raise constitutional claims after the time for a direct appeal has passed.
See § 974.06(1). The statute contains a limitation, however, because “[w]e need
finality in our litigation.” See State v. Escalona-Naranjo, 185 Wis. 2d 168, 185,
517 N.W.2d 157 (1994). A convicted prisoner is procedurally barred from
bringing claims under § 974.06 if the prisoner could have raised the claims in a
previous postconviction motion or on direct appeal unless the prisoner states a
“‘sufficient reason”’ for failing to raise those issues previously. See Escalona-
Naranjo, 185 Wis. 2d at 181-82 (citing § 974.06(4)).

¶23 In this case, Eison claims that his reason for serial litigation is the
ineffective assistance of his postconviction counsel, who did not allege in the
proceedings underlying Eison I that he was denied his right to represent himself at
trial. Postconviction counsel’s ineffectiveness may constitute a sufficient reason
for an additional postconviction motion. See State ex rel. Rothering v.
McCaughtry, 205 Wis. 2d 675, 682, 556 N.W.2d 136 (Ct. App. 1996). A
convicted person may not, however, merely allege that postconviction counsel was
ineffective but must “make the case of” postconviction counsel’s ineffectiveness.
See State v. Balliette, 2011 WI 79, ¶67, 336 Wis. 2d 358, 805 N.W.2d 334.

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¶24 The two-prong test set forth in Strickland v. Washington, 466 U.S.
668, 687 (1984), governs claims that postconviction counsel was constitutionally
ineffective. See Balliette, 336 Wis. 2d 358, ¶¶21, 28. That test requires the
defendant to show both that postconviction counsel’s performance was deficient
and that the deficiency prejudiced the defense. See Strickland, 466 U.S. at 687
(1984). A court may consider either deficiency or prejudice first, and if the
defendant fails to satisfy one prong, the court need not address the other. See id.
at 697.

¶25 To prove deficiency under Strickland, a defendant must show that
counsel “made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” See id. at 687. To prove
prejudice, “[t]he defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. A reviewing court will not disturb the lower court’s
findings of fact, “ʻthe underlying findings of what happened,’” unless they are
clearly erroneous, but the ultimate questions of whether counsel’s performance
was deficient and whether the deficiency was prejudicial are questions of law that
are reviewed de novo. See State v. Johnson, 153 Wis. 2d 121, 127-28, 449
N.W.2d 845 (1990) (citations omitted).

¶26 According to Eison, postconviction counsel performed deficiently by
not challenging the trial court’s ruling denying his request to represent himself.
Because a claim predicated on failure to challenge a correct trial court ruling
cannot satisfy either Strickland prong, see State v. Ziebart, 2003 WI App 258,
¶14, 268 Wis. 2d 468, 673 N.W.2d 369, we must determine whether the trial court
properly denied Eison’s request to proceed pro se. If the trial court did not err,
Eison cannot prevail.

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¶27 Our analysis of the trial court’s ruling starts with the principle that
the right to self-representation is not absolute. See State v. Oswald, 2000 WI App
3, ¶28, 232 Wis. 2d 103, 606 N.W.2d 238. A court considering whether to permit
a person to proceed pro se must balance the person’s right to do so against the
State’s interest in “avoiding any interference with the orderly administration of
justice and preserving the integrity of the trial process.” See Hamiel v. State, 92
Wis. 2d 656, 672, 285 N.W.2d 639 (1979). The right to proceed pro se is “not
intended to allow the defendant the opportunity to avoid or delay the trial for any
unjustifiable reason.” Id. at 673. Accordingly, the decision to grant or deny a
belated request to proceed pro se rests in the trial court’s discretion, and “[w]here
the request to proceed pro se is made on the day of trial or immediately prior
thereto, the determinative question is whether the request is proffered merely to
secure delay or tactical advantage.” See id. at 672-73. The United States Court of
Appeals for the Seventh Circuit recently reaffirmed these long-standing principles,
explaining: “[w]here a defendant invokes his right so late as to delay a trial or
engages in ‘serious and obstructionist misconduct,’ a judge may deny the exercise
of the right of self-representation.” Imani v. Pollard, 826 F.3d 939, 947 (7th
Cir. 2016) (citing Faretta v. California, 422 U.S. 806, 834-35 & n.46 (1975)).

¶28 In this case, as we have seen, Eison vacillated in regard to the issue
of his representation. The trial court expressed concern on several occasions about
the delay caused by Eison’s changing positions, but nonetheless permitted him to
proceed pro se on May 9, 2007, and also permitted him to change his mind and

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reinstate counsel of record on January 17, 2008.5 On his next scheduled trial date
of June 2, 2008—the fifth trial date in this case—Eison requested new counsel, a
request that the trial court viewed as part of an attempt to “delay delay delay,” but
that nonetheless led to yet another trial adjournment to permit an inquiry into his
allegations about trial counsel’s alleged missteps. At the conclusion of the
July 22, 2008 status conference addressing his allegations, the trial court rejected
them as meritless and denied his request for new counsel. Eison then moved once
again to proceed pro se. The trial court responded that it would resolve the
question on the first day of trial, scheduled to begin in six weeks. On the
September 8, 2008 trial date—nearly two and one-half years after the State
charged him in this matter—Eison complained about his lawyer and renewed his
motion to proceed pro se, but he explicitly advised the trial court that he was not
prepared to conduct the trial. Only then did the trial court deny the motion.

¶29 In rejecting Eison’s final motion to represent himself, the trial court
determined that Eison would be dissatisfied with “any attorney [in order] to delay
this as much as [he] c[ould]”; that “up to now” Eison had “essentially ... just kept
this forum from getting to the nub of the issues [which] is a trial”; and that Eison
had “been defeating the right ... to reach a fair result.” In other words—as the
circuit court explained in denying Eison’s postconviction motion—the trial court
found that Eison was invoking his right to represent himself as a delaying tactic.

5
Eison asserts that the trial court “violat[ed his] right to self-representation” on
January 17, 2008, when the trial court designated his newly-appointed successor counsel as
counsel of record rather than as stand-by counsel. The record flatly contradicts this assertion.
Eison confirmed during the January 17, 2008 hearing that he wanted successor counsel to act as
his attorney, not as his stand-by counsel. The trial court then stated that it would appoint
successor counsel as Eison’s attorney of record, and Eison agreed.

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¶30 The trial court’s finding that Eison was engaged in an effort to delay
his trial is a finding of fact, a “ʻfinding[] of what happened,’” and we may not
disturb such a finding unless it is clearly erroneous. See Johnson, 153 Wis. 2d at
127 (citations omitted). The finding here is plainly not erroneous. To the
contrary, the finding constitutes a reasonable determination based on the facts of
record and Eison’s behavior over more than two years of litigation. Accordingly,
we must sustain the finding.

¶31 As to the trial court’s discretionary decision denying Eison’s motion
to represent himself, we will uphold a discretionary decision if the trial court
considered relevant facts, applied a proper legal standard, and reached a
reasonable conclusion. See State v. Edmunds, 2008 WI App 33, ¶8, 308 Wis. 2d
374, 746 N.W.2d 590. Here, the trial court considered the key fact identified by
Hamiel, namely, whether Eison was seeking to invoke his right to self-
representation as a delaying tactic, see id., 92 Wis. 2d at 672-73, and the trial court
indicated that, in its view, he was engaged in gamesmanship. The trial court’s
decision to deny his request to proceed pro se therefore constituted a reasonable
exercise of discretion.

¶32 We recognize that the trial court also assessed whether Eison would
be an effective advocate for himself at trial and whether he could present a
meaningful defense. Eison asserts that the trial court erred in making those
assessments and in support he points to Faretta, 422 U.S. at 836, in which the
Supreme Court held that technical legal knowledge is not relevant to assessing a
request to proceed pro se. Assuming without so holding that the trial court
considered some irrelevant factors in resolving Eison’s motion to represent
himself, that assumption does not affect our conclusion. We look for reasons to
sustain a trial court’s discretionary decision, see State v. Nantelle, 2000 WI App

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110, ¶12, 235 Wis. 2d 91, 612 N.W.2d 356, and we will not reverse an exercise of
discretion unless it “is wholly unreasonable,” see State v. Johnson, 118 Wis. 2d
472, 481, 348 N.W.2d 196 (Ct. App. 1984). We are satisfied that the trial court
reasonably found that Eison invoked his right to represent himself in an effort to
delay his trial, regardless of any other findings the trial court may have made.

¶33 Because we conclude that the trial court did not err in rejecting
Eison’s motion to proceed pro se, we necessarily conclude that postconviction
counsel was not ineffective for failing to raise the claim. See Ziebart, 268 Wis. 2d
468, ¶14. The circuit court, therefore, properly denied Eison’s postconviction
motion.

¶34 For the sake of completeness, we add that even if we were to
conclude that the trial court erred on the first day of trial by refusing to permit
Eison to represent himself—and we do not reach such a conclusion—we would
nonetheless reject Eison’s claim for relief on the ground that Eison subsequently
forfeited his right to self-representation. “[A] defendant who wants to proceed
unaided must be allowed to do so ‘unless the accused has acquiesced in such
representation.’ The implication is clear: defendants forfeit self-representation by
remaining silent at critical junctures before or during trial.” Cain v. Peters, 972
F.2d 748, 750 (7th Cir. 1992) (citing Faretta, 422 U.S. at 821) (one set of brackets
omitted).

¶35 In this case, trial counsel advised on the third day of trial that Eison
had just disclosed the existence of a grievance he had filed against trial counsel but
trial counsel then went on to say that Eison was “satisfied, would like [trial
counsel] to continue on as his lawyer.” When the trial court asked Eison directly
if that was correct, Eison responded: “[y]es sir.” Thus, notwithstanding any

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claimed error in the trial court’s ruling on the first day of trial that Eison could not
proceed pro se, Eison subsequently forfeited his right to self-representation by his
mid-trial actions. See Cain, 972 F.2d at 750.

¶36 A convicted defendant may not seek postconviction relief based on a
claim that he or she has freely withdrawn. To the contrary, “[i]f a defendant
selects a course of action, that defendant will not be heard later to allege error or
defects precipitated by such action. Such an election constitutes waiver or
abandonment of the right to complain.” State v. Krancki, 2014 WI App 80, ¶11,
355 Wis. 2d 503, 851 N.W.2d 824 (citation omitted). Therefore, even if the trial
court erred at the start of the trial by denying Eison the right to represent himself,
postconviction counsel was not ineffective for failing to raise the issue in the
postconviction motion and direct appeal. “[F]ailure to argue an issue on appeal
which is waived is not ineffective assistance of counsel.” Rothering, 205 Wis. 2d
at 678.

¶37 In sum, we are satisfied that postconviction counsel was not
ineffective in failing to raise a claim that Eison was wrongly denied the right to
proceed pro se at trial. Eison, therefore, lacks a sufficient reason for his serial
litigation, and his claim is barred. See Escalona-Narnanjo, 185 Wis. 2d at 181-
82. Accordingly, we affirm.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)(5).

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