                                                                     2017 WI 42

                  SUPREME COURT                 OF    WISCONSIN
CASE NO.:              2015AP959-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Jack M. Suriano,
                                 Defendant-Appellant-Petitioner.

                             REVIEW OF A DECISION OF THE COURT OF APPEALS
                              Reported at 369 Wis. 2d 73, 879 N.W.2d 809
                                   (WI Ct. App. 2016 – Unpublished)

OPINION FILED:         April 27, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         December 2, 2016

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Door
   JUDGE:              D. T. Ehlers

JUSTICES:
   CONCURRED:
   DISSENTED:          ABRAHAMSON, J. dissents, joined by BRADLEY, A.
                       W., J. (opinion filed).
  NOT PARTICIPATING:

ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
and   oral        argument    by    Colleen    Marion,     assistant   state   public
defender.


       For the plaintiff-respondent the cause was argued by Kevin
M. LeRoy, deputy solicitor general, with whom on the brief was
Daniel       P.     Lennington,        assistant      attorney      general,    Misha
Tseytlin,         solicitor        general    and   Brad    D,    Schimel,   attorney
general.


       An amicus curiae brief was filed by                       Kelli S. Thompson,
state public defender and Joseph N. Ehmann, regional attorney
manager,   Wisconsin   State   Public   Defender.   Oral   argument   by
Joseph N. Ehmann.




                                   2
                                                                       2017 WI 42
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.   2015AP959-CR
(L.C. No.    13CM249)

STATE OF WISCONSIN                           :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,                                 FILED
      v.                                                       APR 27, 2017
Jack M. Suriano,                                                  Diane M. Fremgen
                                                               Clerk of Supreme Court
              Defendant-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.               Affirmed.



      ¶1      REBECCA GRASSL BRADLEY, J.          We review whether Jack

Suriano's actions, which caused three attorneys appointed by the

State       Public   Defender   to    withdraw     in     rapid      succession,
constituted forfeiture of his right to counsel, and whether the

right-to-counsel warnings and procedure this court recommended

in State v. Cummings, 199 Wis. 2d 721, 546 N.W.2d 406 (1996),

should be made mandatory.            We conclude that Suriano forfeited

his constitutional right to counsel by repeatedly refusing to

cooperate with his attorneys, constantly complaining about their

performance, verbally abusing them, and triggering one lawyer's
fear of a physical threat.           Suriano's dilatory and manipulative
                                                              No.   2015AP959-CR



game-playing     frustrated     the     progression    of    this   case    and

interfered with the proper administration of justice.                We uphold

the circuit court's1 determination that Suriano forfeited his

right to counsel, and we affirm the court of appeals decision.2

We see no reason to change the forfeiture standard this court

set forth in Cummings and decline Suriano's request to modify

it.       Instead,   we   reaffirm    our   holding   that   right-to-counsel

warnings in forfeiture cases and the procedures suggested by the

Cummings dissent are strongly recommended, but not required.                 We

affirm.

                               I.    BACKGROUND

      ¶2     In October 2013, Suriano obstructed the Door County

Sheriff's Department and sanitation officials who came to his

home with a warrant to take a soil sample from the property.

Police arrested Suriano, and he was charged with obstructing an

officer, contrary to Wis. Stat. § 946.41(1) (2013-14).3                 Due to

Suriano's indigence, the State Public Defender ("SPD") appointed

Attorney Grant Erickson as his lawyer.
      ¶3     Less than one month later, Erickson filed a motion to

withdraw telling the circuit court he and Suriano had "differing


      1
       The Honorable D. Todd Ehlers of Door County Circuit Court
presided.
      2
       State v. Suriano, No. 2015AP959-CR, unpublished slip op.
(Wis. Ct. App. Mar. 15, 2016).
      3
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.


                                        2
                                                                  No.   2015AP959-CR



opinions and objectives for the handling and resolution of this

case."     At the hearing on the withdrawal motion, the circuit

court asked Suriano if he opposed the motion.                   Suriano answered:

"Well, I think we need to have some testimony on that.                     Maybe if

I could put Grant on the stand and ask him a question or two.

Get   some   information       on    the   record      here."      Suriano      asked

Erickson what Erickson's end goal was and how it differed from

Suriano's end goal.        Erickson testified that, while his goal was

to resolve the case, Suriano's goals included:

         To take depositions of all the parties and explore all

          contractual relationships;

         To prove his innocence;

         "[T]o explore every legal or even nonlegal aspect of this

          case" to make things difficult and frustrate "the legal

          system";

         "To be an ass"; and

         "[T]o    make   it   difficult       or   frustrating   for   the     court

          system     to   proceed"    because       Suriano     believed   he     was
          improperly charged.

After this testimony, the circuit court again asked Suriano if

he opposed Erickson's motion.              Suriano did not directly answer

the court's question; instead, he responded:                      "Anybody would

probably be better so --."            Interpreting this answer as a "no,"

the circuit court granted the motion but warned Suriano that it

"did not anticipat[e]" changing the February 2014 pretrial and

March 2014 trial dates that remained on the calendar.


                                           3
                                                                            No.    2015AP959-CR



       ¶4        The   SPD      gave     Suriano         a     second     attorney,      Linda

Schaefer, who very quickly moved to withdraw, averring that "a

significant conflict ha[d] developed" so she could "no longer

effectively        represent       Mr.    Suriano."             At   the    February       2014

pretrial hearing, the circuit court addressed Schaefer's motion

and asked Suriano if he wanted to comment on it.                              Suriano said

"No," and the circuit court granted the motion.                                   This second

withdrawal        clearly       bothered    the          circuit     court,   prompting       a

warning for Suriano:

       [T]he other thing I would suggest, Mr. Suriano, you do
       is call the public defender's office. You will now be
       on your third attorney appointed with the public
       defender's office.   I think they have a three strike
       rule.      Talk  to   them   about   that. . . . [W]hen
       individuals go through three attorneys, they don't
       appoint an attorney any longer so maybe you need to
       call them and talk to them about that also, sir,
       because, as I said, you are now going to be on your
       third attorney with the public defender's office.
When       discussing     the    existing       trial        date,      Suriano    asked    the

circuit court to send communications directly to him "rather

than sending it to someone who won't share it with me," but the

court explained that "all correspondence and communication from

the Court goes through your attorney, not to you directly."

       ¶5        The SPD appointed Raj Kumar Singh as Suriano's third

attorney.         At an April 2014 status conference, Singh told the

circuit court:

           Suriano insisted Singh remind the court Suriano refused

            to    enter   his    own     plea       at   his    initial     appearance     and
            instead stood "mute";


                                                4
                                                                       No.   2015AP959-CR



        Suriano wanted the case dismissed;

        Great "discord" already existed between Suriano and Singh

         on "the law that relates to this case"; and

        Suriano    was        completely        dissatisfied          with     Singh's

         "performance     so    far   as       his    lawyer,"    causing      Singh   to

         think Suriano "really wants to represent himself."

Then,    Singh   asked    the     circuit        court     to    question      "Suriano

directly about whether or not he wants me to continue as his

lawyer."    Singh requested the circuit court's help to make sure

Suriano understood:

    That if he wants anybody, whoever it is, let's say
    it's me to represent him as an attorney, then he's
    reserving three things for himself:     How to plead;
    whether or not to waive his right to a jury. Now then
    there is more to that than that, but that's his part.
    And whether or not to testify in his own defense or
    remain silent.    He needs to understand, other than
    those three things, all of the other decisions are
    left to the attorney, if you agree.     And with that
    understanding, does he want to have an attorney
    representing him and, specifically does he want me
    because I have reason to doubt that he does want me
    and I have reason to doubt that he wants an actual
    attorney in general.
    ¶6     The circuit court then asked Singh about the SPD's

"three-strike"     rule——that      is,     whether       the     SPD   would    appoint

another attorney when a defendant has already had three SPD-

appointed attorneys who withdrew.4                   Singh responded he could not

    4
       The Wisconsin State Public Defender, appearing as amicus,
said the SPD does not practice a "three-strike" rule.        SPD
amicus counsel explained that indigent defendants do not have a
constitutional right to a successor counsel, but Wisconsin rules
do allow one substitute appointment regardless of the reason
when it "is the only such request made by the person" and the
                                                     (continued)
                                           5
                                                                  No.   2015AP959-CR



speak for the SPD, but he had "grave doubts" about whether the

SPD would    appoint a fourth attorney if Suriano fired Singh.

Singh said everyone should "assume that if I end up off the case

he's going to have to either represent himself [or] get a lawyer

on the economy."      The court then specifically asked Suriano if

he wanted Singh to continue as his lawyer.                    Suriano did not

directly answer the court's question; instead, he rattled off a

series of complaints about Singh, claimed he had not "received

any value" from the SPD, and contended that, although his case

should be "very easy to win on dismissal," none of his lawyers

would pursue it.

    ¶7      Suriano   proceeded   to       ask   the    circuit   court    how   he

could get a court-appointed attorney.                  The court explained how

the fees and billing work with a court-appointed attorney, but

told Suriano it would not appoint an attorney if Suriano was

eligible for a SPD appointment.            The circuit court again warned

Suriano that, if he dismissed three SPD-appointed lawyers, the

SPD would not give him another one.



"change in counsel will not delay the disposition of the case or
otherwise be contrary to the interests of justice."     See Wis.
Admin. Code § PD 2.04(1)(May 2010). SPD will continue to try to
appoint counsel beyond the scope of the rule, but it faces
challenges when making fourth, fifth, and sixth appointments for
defendants.   The record here nonetheless reflects that the SPD
refused to appoint Suriano a fourth attorney, and the denial
letter did not give a reason for the decision.          At oral
argument, SPD amicus counsel suggested that the denial was
linked to the circuit court's forfeiture finding, but nothing in
the record confirms that inference.


                                       6
                                                                   No.   2015AP959-CR



    ¶8      Suriano asked whether the circuit court would appoint

counsel if he ended up "getting dumped by the public defender's

office."     The court cautioned:            "I will take up your petition

when it's filed.          I'm not saying I will grant it or I won't

grant it.     I'm just telling you that's the procedure and that's

how the case gets billed."            Then the court again asked Suriano

if he wanted "to get rid" of Singh as his attorney.                         Suriano

again refused to answer the question directly with a yes or no.

Instead,    he:    (1)     criticized       Singh's   representation        as   not

benefitting him; (2) said he "hesitate[ed] to go around firing

people,    especially     because    there    might   be   consequences";        and

(3) suggested     Singh    withdraw    because    that     might    make    Suriano

look better to the SPD.             Attorney Singh explained he was not

filing a motion to withdraw but wanted to make a record on the

issues that arose since his appointment:

         He was unable to speak to Suriano by phone, as Suriano

          claimed he did not have a phone;

         Suriano refused to meet in person with him on several
          occasions;

         He had sent many letters to Suriano and received many

          emails from Suriano, although he told Suriano it is not

          his practice to confer with clients by email;

         Suriano finally accepted that the law does not allow for

          depositions in his case, but Suriano made Singh prove

          this by showing him a copy of the statute instead of

          taking his lawyer's word;


                                        7
                                                                       No.     2015AP959-CR



           Singh saw no merit in the motion to suppress Suriano

            wanted to file; and

           Suriano    did    not    want   a     trial    and    wanted       the    charge

            dismissed.

       ¶9     After a brief back and forth with the circuit court in

which Suriano insisted that it was his attorney who wished to

withdraw,      the    court    stopped      the    exchange:        "I'm       done    going

around in circles here this afternoon.                          We're moving forward

with this case.          It's now going on seven months old.                     It needs

to be scheduled and resolved one way or another."                              Singh then

told   the    court     Suriano      forbade      him   from     filing    a    motion    to

withdraw without Suriano's preapproval, Suriano wanted to make

all the lawyering decisions, and Suriano just wanted Singh "to

be his clerk typist."               Singh urged the court to insist Suriano

"make a decision right now does he want to represent himself or

does he want [Singh] to represent him."                         When the court asked

him once again, Suriano talked around the issue and suggested

the court schedule another hearing rather than the trial.                                The
court then allowed Singh to try to get a direct answer from

Suriano by asking, "Mr. Suriano, would you like me to go forward

as your attorney on this case knowing what I have informed you

over the past weeks of our relationship?                         Yes or no, please."

Suriano refused to answer yes or no, responding, "I haven't

considered all of that."               The court ruled Suriano's refusal to

answer      meant     Singh   would    remain      as     his    lawyer.        The    court

scheduled the jury trial for June 2014.


                                            8
                                                               No.   2015AP959-CR



    ¶10     One month later, Singh filed a motion to withdraw,

titled,     "Defendant's     Motion      for     an   Order    of    Attorney's

Withdrawal."       He explained to the circuit court that Suriano

emailed the SPD Director of Appointments and accused Singh of

being   a   liar   and   refusing   to       communicate,   investigate,    seek

discovery, or prosecute a motion to suppress.                 Suriano's email

included    disparaging     remarks      and    accusations   against    Singh,

ending with:       "I have not received legitimate representation.             I

need a real attorney."        In an email directly to Singh, Suriano

leveled a similar attack.       Singh told the court:

    He will not cooperate with me at all.     He wants to
    micromanage what I do. He wants to basically have me
    be, figuratively speaking, the fingers on his hand,
    and I've tried to explain to him that's simply not
    acceptable. It's not acceptable to anybody within the
    practice of law. I can't do that. I have to be like
    a medical doctor. I have to take full responsibility
    for what I do.       I have repeatedly explained to
    Mr. Suriano that he has -- if he wishes to be
    represented, if that's the case, then he has three
    decisions and only three that are kept within his
    purview:   How to plead, whether or not to testify in
    his own defense, and whether or not to try to [or]
    waive jury.    Other than that, he is allowing the
    attorney to make all other decisions and he has
    absolutely expressed to me his -- his rejection of
    that.5
    5
       SPD asks that we remind circuit courts that attorney
withdrawal motions should not be granted simply based on
disagreement about legal strategy; instead, circuit courts
should advise defendants which legal choices belong to the
defendant and which ones counsel controls.    Although we agree
this   procedure   may   be   beneficial,  we   recognize   that
circumstances in some cases might prevent a circuit court from
doing so.   We do encourage circuit courts, where circumstances
allow, to instruct SPD-appointed lawyers and their clients about
the choices for which each is responsible and that disagreement
                                                     (continued)
                                         9
                                                             No.   2015AP959-CR



    ¶11   When the circuit court asked Suriano if he "opposed

[Singh's] . . . request     to   be    allowed    to   withdraw,"     Suriano

again refused to answer yes or no, saying only:             "I'm opposed to

the technicalities."      Bothered that Singh labeled the motion

"[d]efendant's motion for order to withdraw as if I'm firing

him," Suriano told the court that if Singh "put up a clean

motion to withdraw, I won't object."             In other words, Suriano

wanted Singh to withdraw rather than making it look like Suriano

fired him.   Suriano then launched into a complaint about Singh

that covers three transcript pages.           He did not deny sending the

attacking emails; indeed, he told the court he would say it all

over again because "[i]t's all true."            Singh advised the court:

"[T]he hostility and anger that this man has shown to me is such

that I will not meet with him at any location that does not have

screening with a metal detector.           I will not do it."

    ¶12   After   Suriano    continued        complaining   about     Singh's

representation, the prosecutor added:           "I believe an ample basis

both because of the number of attorneys and the reasons on the


on legal strategy alone may be insufficient for withdrawal.
Specifically, defendants retain "the ultimate authority to make
certain fundamental decisions regarding the case, as to whether
to plead guilty, waive a jury, testify in his or her own behalf,
or take an appeal."     See Jones v. Barnes, 463 U.S. 745, 751
(1983). All other tactical decisions, "including the objections
to make, the witnesses to call, and the arguments to advance"
are "of practical necessity" controlled by counsel because
"[t]he adversary process could not function effectively if every
tactical decision required client approval."    See Gonzales v.
United States, 553 U.S. 242, 249 (2008)(quoting Taylor v.
Illinois, 484 U.S. 400, 418 (1988)).


                                      10
                                                                       No.    2015AP959-CR



record     given     by    two    out   of   the   four[6]     attorneys      that    have

represented Mr. Suriano representing Mr. Suriano's behavior that

if you grant the motion to withdraw I think you should also find

the defendant has forfeited his right to public representation

and that he either goes alone or goes out and hires his own

lawyer."

      ¶13        Finding   the     relationship     irretrievably           broken,   the

circuit court granted Singh's motion to withdraw.                            The circuit

court     then     gave    Suriano      an   opportunity     to   be   heard     on   the

State's request that the court find forfeiture.                        Suriano argued

he wanted an attorney to represent him and a forfeiture finding

would "be a real prejudice."                 He talked about how each of his

SPD-appointed        lawyers      had    failed    him   and    how    he    wanted   his

motion      to    suppress       reinstated.       The    circuit      court     engaged

Suriano in a colloquy about his education and learned Suriano

had   two    college       degrees——geology        and   chemistry——and         was    one

credit short of a graduate degree.

      ¶14        Determining Suriano forfeited his right to counsel,
the circuit court advised him:

      [I]f    you want to go out and hire an attorney or you
      want    to contact the state public defender's office and
      see    if they will appoint another attorney for you,
      that    is absolutely your right, sir.    When I'm saying

      6
       This opinion makes an occasional reference to a fourth
SPD-appointed   lawyer  who   attended   Suriano's  first   court
appearance.     This attorney's involvement was limited and
occurred even before the SPD made an official appointment; thus,
our analysis focuses on the three attorneys who were officially
appointed and who formally withdrew from representing Suriano.


                                             11
                                                                      No.   2015AP959-CR


    you forfeited your right to have an attorney, that
    doesn't mean you can't get an attorney, but I'm
    finding your actions have made it clear that you will
    not cooperate with any attorney.
The court went on to say it had not in "32 years of experience"

ever heard an attorney refer to a client on the record "as an

ass."

    ¶15    The    circuit      court     found     Suriano      "clearly"       had   a

problem getting along "with any attorney."                     It warned him that

the June 2014 trial was "not coming off the calendar" and he

would be representing himself if he did not "get a new attorney"

before   the    trial.    In    no   uncertain      terms,      the    court    warned

Suriano it was done playing his game:                  "Yes.     It's a game, Mr.

Suriano, and I'm done playing it.               This case is moving forward.

It's going to be tried on June 4th."               Suriano said he wanted to

pursue a court-appointed attorney if the SPD would not give him

another one.       The circuit court told him he could get a form

from the court clerk to petition for an appointment, but the

court would "take up" his petition "when and if it is filed" and

only if the SPD said he was ineligible for another appointment.

    ¶16    The     SPD   denied        Suriano's       request     for      a   fourth

attorney, and Suriano looked for an attorney willing to take his

case under a court appointment.               At a hearing in late May 2014,

days before the trial date, Suriano asked the circuit court to

appoint Eric Wimberger, even though Wimberger was not available

for the June 4th trial date.                  The circuit court refused the

request, explaining that it made it "very clear" it was "not
moving    the    trial   date."         After    the     circuit       court    denied


                                         12
                                                        No.   2015AP959-CR



Suriano's suppression motion, it reminded him the jury trial

would occur June 4th and he should "be ready to proceed."            When

Suriano asked the court if it would still appoint a lawyer for

him if he could find someone to make the trial date, the court

answered:

         No. You have to hire an attorney. I've already
    found you have forfeited your right to have an
    attorney.   If you hire an attorney yourself, you can
    do so, but I am not appointing one on your behalf.

         []Because by your own actions you've now lost the
    right to have a public defender which would be at no
    expense to you, and I've already made a clear record
    regarding that.   So no.    If you find somebody else
    that's available to take this on June 4th and you file
    another petition for Court-appointed counsel, I'm
    denying your request for Court-appointed counsel.
    You've forfeited your right to have an attorney
    through those means.
(Emphasis added.)

    ¶17     A week later, two days before trial, Suriano again

asked the circuit court to appoint counsel.        The circuit court

explained its basis for again denying the request:

       The circuit court made it "very clear" when Suriano was
        still represented by SPD-appointed lawyers that Suriano

        was "starting to get dangerously close to a situation

        where [he was] not going to be eligible any longer for

        public defender representation."

       That's exactly what happened.

       Although the court did not blame Suriano entirely, it

        found   he   was   "an   active   participant   in    why   those




                                   13
                                                                  No.   2015AP959-CR



        situations [with his three SPD-appointed lawyers] went

        haywire."

       As a result, Suriano did not qualify for an SPD-appointed

        attorney    and    he   did   not    qualify   for    court-appointed

        counsel.

Although the circuit court told Suriano his actions caused him

to forfeit his right to appointed counsel, it indicated Suriano

could   still   hire   a   private,   paid    attorney,      so    long    as   the

attorney would be ready for the June 4th trial.

    ¶18    Suriano then re-argued the suppression motion that had

been denied a week earlier until the circuit court stopped him

for repeating the same points over and over.            Suriano then asked

the court if he could call more witnesses to testify on the

suppression motion.        The court refused the request, but Suriano

persisted, saying he had "completely new evidence."                     The court

responded, "No. No.", and told Suriano, "We're not going to

continue to go round and round regarding this."

    ¶19    Suriano represented himself at the one-day trial, and
the jury found him guilty of obstruction.                 The circuit court

sentenced him to a $100 fine, plus costs, and 10 days in jail,

which would be "permanently stay[ed]" if Suriano paid the fine

within 60 days.        Suriano appealed with the help of a newly-

appointed SPD-appellate lawyer, and his sentence has been stayed

pending appeal.     The court of appeals affirmed the judgment, and

we granted Suriano's petition for review.




                                      14
                                                                                    No.    2015AP959-CR



                                     II.    STANDARD OF REVIEW

      ¶20          Whether Suriano forfeited his constitutional right to

counsel is a question of constitutional fact, which presents a

"mixed question of law and fact."                           See State v. Martwick, 2000

WI   5,   ¶¶16-17,           231      Wis. 2d 801,         604    N.W.2d 552.              We    review

historical          and    evidentiary             facts    under       a    clearly        erroneous

standard,           but   the        ultimate       determination            as     to    whether      a

constitutional right was violated is a question of law we review

independently.            Id.

                                            III.    ANALYSIS

                                       A.     Legal Principles

      ¶21          Suriano      is    guaranteed         the     right      to    counsel        by   the

Sixth Amendment to the United States Constitution, see Gideon v.

Wainwright, 372 U.S. 335, 339-40, 345 (1963), and Article I,

Section        7    of    the      Wisconsin        Constitution,           see     Cummings,         199

Wis. 2d at 748.              "The scope, extent, and, thus, interpretation

of the right to the assistance of counsel is identical under the

Wisconsin          Constitution            and     the   United     States          Constitution."
State     v.        Klessig,         211     Wis. 2d 194,         202-03,         564      N.W.2d 716

(1997).            Indigent defendants who cannot afford to pay for an

attorney, however, do not have a right to an attorney of their

own choice or the right to successive appointments.                                       See United

States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006).                                       A defendant

who acts in a voluntary and deliberate way that frustrates "the

orderly     and       efficient            progression      of    the       case"    forfeits         his

right     to       counsel.           Cummings,      199       Wis. 2d at         752,     753    n.15.
"[T]he Sixth Amendment does not bestow upon a defendant absolute
                                                    15
                                                                       No.    2015AP959-CR



rights and . . . a defendant can forfeit Sixth Amendment rights

through his or her own disruptive and defiant behavior."                             Id. at

757 (citing          Illinois v. Allen, 397 U.S. 337, 342-43 (1970))

(upholding forfeiture of right to be present at trial where

defendant's behavior interfered with process of justice).

          B.    State v. Cummings' Waiver-Forfeiture Framework

      ¶22      In 1996, this court declared the standard to use in

forfeiture of trial counsel cases.                   See Cummings, 199 Wis. 2d at

751-52.        Addressing       forfeiture,        this    court     acknowledged       two

situations where a defendant loses his right to counsel:                             (1) a

defendant may knowingly, intelligently, and voluntarily                               waive

his right to counsel; and (2) a defendant may forfeit his right

to counsel.          Cummings, 199 Wis. 2d at 752.

      ¶23      In a waiver situation, the circuit court must hold a

hearing and engage in a colloquy with the defendant to ensure

the defendant:          "(1) made a deliberate choice to proceed without

counsel, (2) was aware of the difficulties and disadvantages of

self-representation, (3) was aware of the seriousness of the
charge or charges against him, and (4) was aware of the general

range   of      penalties       that    could      have    been     imposed    on     him."

Klessig,       211    Wis. 2d at       206.        The    circuit    court    must     also

determine whether a defendant is competent to represent himself.

Id. at 212.

      ¶24      Forfeiture requires very different procedures covering

a variety of scenarios where a defendant's conduct results in

the   involuntary        loss    of    counsel      by    operation    of     law.      See
Cummings, 199 Wis. 2d at 752-58.                     "[T]he triggering event for
                                              16
                                                                         No.   2015AP959-CR



forfeiture is when the 'court becomes convinced that the orderly

and efficient progression of the case [is] being frustrated.'"

Id. at 753 n.15 (quoted source and ellipsis omitted).                           Scenarios

triggering forfeiture include:                   (1) a defendant's manipulative

and disruptive behavior; (2) withdrawal of multiple attorneys

based on a defendant's consistent refusal to cooperate with any

of    them     and        constant    complaints           about        the    attorneys'

performance; (3) a defendant whose attitude is defiant and whose

choices repeatedly result in delay, interfering with the process

of justice, see id. at 752-57, and (4) physical or verbal abuse

directed at counsel or the court.                 See United States v. Leggett,

162 F.3d 237, 251 (3d Cir. 1998) (defendant's physical attack on

counsel     constituted      forfeiture);         United    States       v.    McLeod,   53

F.3d 322, 325 (11th Cir. 1995) (verbal abuse and threats to sue

counsel constituted forfeiture).                 When those situations arise, a

defendant loses his right to counsel by "operation of law"——not

by express verbal consent but because the defendant's voluntary

and deliberate actions told the circuit court he would make it
"impossible"        for   any   attorney     to     be    able     to    represent    him.

Cummings, 199 Wis. 2d at 753-54.

      ¶25     Although the United States Supreme Court has not yet

spoken on the issue presented here, numerous state and federal

courts have addressed issues involving waiver or forfeiture of

the   right    to    counsel.        See,    e.g.,       Tennessee       v.    Carruthers,

35 S.W.3d 516, 546-49 & n.26 (Tenn. 2000) (collecting cases).

Some of those courts follow the same approach as this court in
Cummings, limiting discussion to waiver or forfeiture.                                See,
                                            17
                                                                             No.    2015AP959-CR



e.g.,   Gilchrist    v.     O'Keefe,     260     F.3d       87,       95    (2d    Cir.     2001)

(upholding forfeiture of counsel; concluding the United States

Supreme     Court     allows        both        waiver           and        forfeiture         of

constitutional rights); Leggett, 162 F.3d at 251.

     ¶26    Other    courts       have    added        a     third         category        called

"waiver    by   conduct"     to   cover       the     "hybrid          situation"         between

forfeiture and express waiver.                   See, e.g.,             United States v.

Goldberg, 67 F.3d 1092, 1099-1103 (3d Cir. 1995); see also Maine

v. Nisbet, 2016 ME 36, ¶¶24-36, 134 A.3d 840, 851-53 (adopting

Goldberg    approach).        The      Third    Circuit          in     United      States     v.

Goldberg    determined       loss-of-counsel               cases        fall       into     three

categories:

     (1)    Express Waiver.            This involves the typical situation

            where a defendant wants to exercise the right to self-

            representation.            It requires a knowing, intelligent

            and     voluntary       waiver       of        the     right       to     counsel,

            including a colloquy with the defendant, warnings to

            the   defendant       of     the     risks       associated            with     self-
            representation, and a determination that the defendant

            is competent to represent himself.                         Id. at 1099-1100.

     (2)    Forfeiture.           This        covers        circumstances            where      a

            defendant's behavior, such as abusing or threatening

            counsel or demanding that counsel "engage in unethical

            conduct," results in loss of counsel without warnings,

            "regardless of the defendant's knowledge" that he is

            losing    the    right       to     counsel          and       "irrespective       of


                                           18
                                                                           No.    2015AP959-CR



            whether        the     defendant       intended         to    relinquish       the

            right."        Id. at 1100.

      (3)   Waiver by conduct.               This covers a "hybrid situation"

            between        forfeiture       and     express        waiver.        It   arises

            where the defendant engages in dilatory behavior but

            does not expressly waive his right to counsel.                                 In

            these situations, the Goldberg court held defendants

            must     be     warned    that        they    will     lose    the     right   to

            counsel unless their dilatory behavior stops, and the

            warning must include the risks of proceeding pro se.

            If the defendant's bad behavior continues, it "may be

            treated as an implied request to proceed pro se, and

            thus, as a waiver of the right to counsel."                                Id. at

            1100-1101.

The   Goldberg     court        discussed    concerns         about      recognizing       the

differences    between          forfeiture    and        waiver     by    conduct      because

these two categories overlap.               Id. at 1101-1102.

      ¶27   Suriano        urges    this    court        to   adopt      the    three-tiered
approach used in Goldberg.                  We decline this request.                    Since

1995, when Goldberg was decided, many state supreme courts have

adopted the three-tiered approach.                   See, e.g., Bultron v. State,

897 A.2d 758, 763-65 (Del. 2006); Nisbet, 134 A.3d 840, ¶¶24-36;

State v. Jones, 772 N.W.2d 496, 504 (Minn. 2009).                              Those courts,

however,     had     not     previously       decided         to      review      forfeiture

situations     under        a      two-tiered       "express          waiver—forfeiture"

framework     like    this       court     did      in    Cummings.             This    court,
moreover, chose the two-tiered framework even though Goldberg
                                             19
                                                         No.   2015AP959-CR



introduced its three-tiered approach to loss-of-counsel cases

the year before we decided Cummings.            This court could have

adopted the three-tiered Goldberg approach but it did not do so.

Rather, this court addressed loss-of-counsel issues as either

forfeiture or express waiver.      See Cummings, 199 Wis. 2d at 752-

58.

       ¶28   We acknowledge the substantial body of case law on

this   issue   since   our   decision   in   Cummings,   but   we   remain

unconvinced that a switch to Goldberg's three-tiered approach is

warranted.     The United States Court of Appeals for the Second

Circuit in Gilchrist v. O'Keefe, authored by then-Judge Sonia

Sotomayor, analyzed the issue under the traditional two-tiered

approach, and although the decision referred to Goldberg, see

Gilchrist 260 F.3d at 98-99, it made no reference to the three-

tiered approach or the hybrid category of waiver by conduct.

Gilchrist held:

       Having thus established that Supreme Court precedent
       recognizes a distinction between waiver and forfeiture
       of constitutional rights, and that there is no Supreme
       Court holding either that an indigent defendant may
       not forfeit (as opposed to waive) his right to counsel
       through misconduct nor a general Supreme Court holding
       that a defendant may not forfeit a constitutional
       right, we conclude that the state court rulings [that
       the defendant forfeited his right to counsel] were not
       'contrary to' clearly established federal law as
       determined by the Supreme Court.
Id. 260 F.3d at 97.      The Second Circuit's analysis convinces us

we got it right in Cummings.

       ¶29   Significant to our conclusion is the absence of any
United States Supreme Court case addressing this issue.                The

                                   20
                                                                     No.    2015AP959-CR



approach this court adopted in 1996 has not been rejected by the

Supreme Court and is sound in principle.                   Wisconsin courts have

followed this approach for over twenty years; it has provided a

workable test and clear guidance for circuit courts, lawyers,

and   litigants;        and   we    have    not    been     presented       with    any

justification      to    abandon     that       existing    law.       See     Johnson

Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶¶94-

100, 264 Wis. 2d 60, 665 N.W.2d 257 (discussing the principles

of stare decisis).            "It is not a sufficient reason for this

court to overrule its precedent that a large majority of other

jurisdictions, with no binding authority on this court, have

reached     opposing     conclusions."            Id.,     ¶100.      The     Cummings

approach using only forfeiture and express waiver protects a

defendant's right to be represented by counsel and the right to

choose self-representation, but it also facilitates the circuit

courts' duty to administer justice in an orderly, timely, and

dignified manner.        We reaffirm our holding in Cummings utilizing

the two-tiered, loss-of-counsel analysis.
              C.   Applying the Cummings Test to Suriano

      ¶30   Applying Cummings here, we conclude Suriano forfeited

his right to counsel.          Suriano's case falls into the forfeiture

category because there is no dispute he did not expressly waive

his right to counsel.          A defendant forfeits his or her right to

counsel "when the 'court becomes convinced that the orderly and

efficient    progression       of    the    case    [is]     being    frustrated,'"

Cummings, 199 Wis. 2d at 753 n.15 (quoted source and ellipsis


                                           21
                                                                  No.    2015AP959-CR



omitted), by the defendant's voluntary and deliberate choices,

id. at 752.

       ¶31   The record supports the circuit court's finding that

Suriano made it clear he would not cooperate with any attorney.

His   actions      caused     three   SPD    lawyers    to   withdraw     in   rapid

succession.        One of those lawyers specifically testified that

Suriano was trying to frustrate the progress of the case and

cause      delay    because     Suriano     believed     the    case    should    be

dismissed.         Another one of his lawyers felt so threatened by

Suriano that he would not meet with him unless he could be sure

Suriano did not have a weapon.              Suriano verbally abused at least

one of his lawyers, admitted in open court that he did so, and

declared he would do it again because the disparaging verbal

assaults were all "true."             The circuit court found Suriano was

playing games and manipulating the case to delay the trial.

Suriano did not say he wanted to represent himself, but his

repeated dilatory tactics and abusive behavior expressed loudly

and clearly that he would make it impossible for any attorney to
represent him.         This is sufficient to satisfy the forfeiture

standard and supports the circuit court's finding of forfeiture

in    this   case.      Suriano's      voluntary       and   deliberate     choices

frustrated the orderly and efficient progression of this case.7

       ¶32   We also reject Suriano's contention that a defendant

cannot     forfeit    the     right   to    counsel    unless   the     defendant's

       7
       There is no argument that the choices Suriano made were
involuntary or not deliberate.


                                           22
                                                                              No.    2015AP959-CR



actions were done with an intent or purpose to delay.                                 Tying the

frustration              of    the    orderly    and    efficient    progression          to   a

defendant's              motivation       or   purpose    for     engaging      in     dilatory

tactics would not provide a workable standard, as circuit courts

cannot read the minds of the defendants who appear before them.

Defendants choosing dilatory tactics do not often disclose the

true purpose behind such conduct.                        Circuit courts can, however,

observe        a     defendant's           voluntary     and    deliberately           dilatory

actions and determine that those actions resulted in a delay and

reached        the       level       of   frustrating     the   orderly       and     efficient

progression of the case.                       Moreover, a defendant who subjects

counsel to physical or verbal abuse or refuses to cooperate with

a   succession            of     appointed      attorneys   may    not    be    acting      with

intent         to        delay       proceedings;      nevertheless,          such     behavior

frustrates the orderly and efficient progression of the case,

and       it        is        this    resulting        obstruction       of     the      proper

administration of justice that triggers forfeiture, regardless

of whether delay was the defendant's objective.                           Accordingly, we
overrule the contrary language in State v. Coleman, 2002 WI App

100, ¶18, 253 Wis. 2d 693, 644 N.W.2d 283, and any other case

requiring proof of intentional, purposeful delay.8

      8
       State v. Coleman, 2002 WI App 100, ¶18, 253 Wis. 2d 693,
644 N.W.2d 283, held: "[F]orfeiture cannot occur simply because
the effect of the defendant's conduct is to frustrate the
orderly and efficient progression of the case.     The defendant
must also have the purpose of causing that effect." We overrule
the language requiring proof of the defendant's purpose or
motivation.   The standard set forth in State v. Cummings and
reaffirmed here is that forfeiture occurs when the circuit court
                                                     (continued)
                                                  23
                                                        No.   2015AP959-CR



 D.   Right-to-Counsel Warnings and Procedure in Forfeiture Cases

      ¶33 Suriano also requests that this court make mandatory

the   right-to-counsel   warnings    and   procedure   recommended     in

Cummings.   We reject this request.        In Cummings, the dissent

advocated for mandatory right-to-counsel warnings plus specific

procedural steps in all forfeiture cases.          See Cummings, 199

Wis. 2d at 764 (Geske, J., dissenting).9       The Cummings majority


becomes convinced that the defendant's voluntary and deliberate
conduct frustrated the orderly and efficient progression of the
case.   See State v. Cummings, 199 Wis. 2d 721, 753 n.15, 546
N.W.2d 406 (1996).

     Our opinion does not foreclose a circuit court from using a
defendant's specific intent or purpose "to frustrate the orderly
and efficient progression of the case" in its analysis, as the
circuit court implicitly did in this case. Proof of the
defendant's actual motivation underlying his or her behavior,
however, is not required to meet the forfeiture standard.    The
Cummings' standard is satisfied when the 'court becomes
convinced that the orderly and efficient progression of the case
[is] being frustrated,'" Cummings, 199 Wis. 2d at 753 n.15
(quoted source and ellipsis omitted), by the defendant's
voluntary and deliberate choices. The effect of the defendant's
voluntary and deliberate actions, even absent any express intent
to delay, controls.
      9
       The Cummings dissent advocated for the following warnings
and procedure in all forfeiture cases:

      (1) [E]xplicit warnings that, if the defendant
      persists in "X" [specific conduct], the court will
      find that the right to counsel has been forfeited and
      will require the defendant to proceed to trial pro se;
      (2) a colloquy indicating that the defendant has been
      made aware of the difficulties and dangers inherent in
      self-representation; (3) a clear ruling when the court
      deems the right to counsel to have been forfeited;
      (4) factual findings to support the court's ruling;
      and (5) appointment of standby counsel.

                                                              (continued)
                                    24
                                                                              No.   2015AP959-CR



opinion recommended these warnings and procedures but did not

require them.           Id. at 756 n.18.                  We reaffirm our holding on

right-to-counsel         warnings       and     procedure         in    forfeiture        cases.

Forfeiture        cases,     by        their        very       definition,          involve    a

manipulative,       disruptive,         and     potentially            violent      or   abusive

defendant.         Although       we    continue          to   recommend       that      circuit

courts give these warnings and follow these procedures whenever

the circumstances allow, we recognize the challenges our circuit

courts    face     on   a   daily      basis        may    not    always      permit      strict

compliance.        In forfeiture cases, loss of the right to counsel

occurs     by    operation    of       law     without         the     need    to    ensure    a

defendant knows he is losing his right and regardless of whether

he intends to do so.          See Cummings, 199 Wis. 2d at 752; Leggett,

162 F.3d at 250; State v. Lehman, 749 N.W.2d 76, 82 (Minn. Ct.

App. 2008).10       This is precisely why no warnings are required.

                                   IV.       CONCLUSION

     ¶34        We reaffirm our decision in Cummings applying a two-

tiered     forfeiture—express           waiver       framework.           We     continue     to
apply     the    Cummings    standard          governing         forfeiture         of   counsel

Cummings, 199 Wis. 2d at 764 (Geske, J., dissenting).
     10
       Although Suriano did not receive the full panoply of
warnings and procedures specifically recommended in Cummings,
forfeiture did not come without any warning at all. The circuit
court repeatedly warned Suriano that he would not be provided
with an endless supply of SPD lawyers.     Suriano heard at the
April 2014 hearing that if Singh withdrew, the SPD would not
appoint a fourth attorney, and the circuit court forcefully
warned Suriano that the June 2014 trial date would not be
adjourned.


                                               25
                                                                    No.   2015AP959-CR



cases, and we emphasize that the warnings and procedures it

suggests    remain    recommendations        only.       Applying    the    Cummings

standard    to   this    case,    we   hold    that      Suriano    forfeited       his

constitutional right to counsel by engaging in voluntary and

deliberate conduct, which frustrated the progression of his case

and interfered with the proper administration of justice.                           The

record     supports     the   circuit    court's      findings       that    Suriano

repeatedly refused to cooperate with his attorneys, engaged in

recurrent dilatory tactics to manipulate and cause delay, and

verbally abused counsel, even causing one of his lawyers to view

Suriano as a physical threat.               The circuit court's finding of

forfeiture meets the Cummings standard and we agree with the

court of appeals' decision affirming it.

    By     the   Court.—The      decision     of   the    court    of     appeals    is

affirmed.




                                        26
                                                                         No.    2015AP959.ssa


      ¶35     SHIRLEY S. ABRAHAMSON, J.                 (dissenting).           "The right

to   the    assistance       of   counsel    is       necessary     to    ensure      that    a

criminal defendant receives a fair trial, that all defendants

stand      equal    before    the   law,     and      ultimately        that    justice      is

served."1

      ¶36     The    instant      case   addresses          the   assertion         that    the

circuit court denied Suriano's Sixth Amendment right to counsel.2

      ¶37     To protect an accused's right to counsel, to avoid

after-the-fact        legal       disputes       regarding        whether      an     accused

relinquished        (that    is,    forfeited         or    waived)3      the       right    to

counsel, and to promote certainty and judicial efficiency, I

would mandate an in-court, on-the-record colloquy by the circuit

court with the accused in all cases pertaining to relinquishment

of the fundamental right to counsel.                       The colloquy is set forth

in   Justice        Geske's       dissent        in    State       v.    Cummings,          199

Wis. 2d 721, 546 N.W.2d 406 (1996).4




      1
       State v. Klessig, 211 Wis. 2d 194, 201, 564 N.W.2d 716
(1997).
      2
       An accused also has               the     right      to    self-representation.
Klessig, 211 Wis. 2d at 202.
      3
       The presumption is that the right to counsel is not
waived.    "It has been pointed out that courts indulge every
reasonable    presumption   against    waiver   of   fundamental
constitutional right and that we do not presume acquiescence in
the loss of fundamental rights."    Johnson v. Zerbst, 304 U.S.
458, 464 (1938) (internal quotation marks omitted).
      4
       For an in-court procedure similar to that proposed by
Justice Geske, see Wis JI——Criminal SM 30.


                                             1
                                                                 No.    2015AP959.ssa


      ¶38   The     majority     opinion     "strongly      recommends"          this

procedure.      See majority op., ¶¶1, 34.        I would require it.

      ¶39   I would require the circuit court record to reflect

that the circuit court made the accused aware of the seriousness

of the charges he or she faces, the potential penalties that may

be imposed upon a finding of guilt, and the difficulties and

disadvantages of self-representation.             Cummings, 199 Wis. 2d at

763 (Geske, J., dissenting).

      ¶40   In Cummings, Justice Geske sets forth the colloquy in

which the circuit court shall:

      (1) [Provide] explicit warnings that, if the defendant
      persists in [specific conduct], the court will find
      that the right to counsel has been forfeited . . . . ;

      (2) [Engage in] a colloquy indicating that the
      defendant has been made aware of the difficulties and
      dangers inherent in self-representation;

      (3) [Make] a clear ruling when the court deems the
      right to counsel to have been forfeited; [and]

      (4) [Make] factual        findings     to   support   the        court's
      ruling . . . .
Cummings, 199 Wis. 2d at 764 (Geske, J., dissenting).5
      ¶41   This procedure puts an accused on notice that his or

her   conduct     will   lead   to   a   relinquishment     of    the     right   to


      5
       As a fifth point, Justice Geske addressed the appointment
of standby counsel if the defendant forfeits his or her right to
counsel.    "Standby counsel serves not only to safeguard a
defendant's constitutionally protected rights but also to
advance the court's objectives of judicial efficiency by
assisting the accused in overcoming routine procedural and
evidentiary obstacles."    State v. Cummings, 199 Wis. 2d 721,
764-65, 546 N.W.2d 406 (1996) (Geske, J., dissenting).


                                         2
                                                                   No.      2015AP959.ssa


counsel,   ensures    an    accused's       right     to   a    fair     trial,      and

discharges the circuit court's "special obligation[] of judicial

responsibility    that          [it]   faces      when         dealing        with    an

unrepresented [criminal] defendant."6

     ¶42   Although     forfeiture          of    the      right       to      counsel,

constructive   waiver      of    the   right     to   counsel,      and       voluntary

waiver of the right to counsel are different doctrines of law,

the application of these doctrines may blend and overlap in

certain circumstances.           There does not seem to be any reason

(except perhaps in an emergency situation not presented in the

instant case) why the same procedural safeguards should not be

imposed in all cases involving the relinquishment of the right

to counsel.

     ¶43   I joined Justice Geske's dissent in Cummings, and I am

even more persuaded by it now than then.

     ¶44   When this court decided Cummings, the case law did not

require a colloquy in which a circuit court explored with the

accused whether the accused was voluntarily waiving, as opposed
to constructively waiving or forfeiting, the right to counsel.



     6
       Cummings, 199 Wis. 2d at 762, (Geske, J., dissenting); see
also Johnson v. Zerbst, 304 U.S. 458, 465 (1938):

     The   constitutional  right  of   an  accused  to   be
     represented by counsel invokes, of itself, the
     protection of a trial court, in which the accused——
     whose life or liberty is at stake——is without counsel.
     This protecting duty imposes the serious and weighty
     responsibility upon the trial judge of determining
     whether there is an intelligent and competent waiver
     by the accused.


                                        3
                                                                            No.   2015AP959.ssa


See   State    v.     Pickens,       96       Wis. 2d 549,         601,    292     N.W.2d 601

(1980).

      ¶45     Pickens      has    been    "overruled"          since      Cummings       to   the

extent that "we mandate the use of a colloquy in every case

where a defendant seeks to proceed pro se to prove knowing and

voluntary waiver of the right to counsel."                             State v. Klessig,

211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997).

      ¶46     The Klessig court explained that the circuit court's

conducting an examination of the accused "is the clearest and

most efficient means of insuring" that the waiver of the right

to counsel was valid, and preserves and documents the accused's

waiver for purposes of review.                       Klessig, 211 Wis. 2d at 206.

"Thus,"     wrote     the    court       in     Klessig,       "a    properly       conducted

colloquy serves the dual purposes of ensuring that a defendant

is not deprived of his constitutional rights and of efficiently

guarding our scarce judicial resources."                            Klessig, 211 Wis. 2d

at 206.

      ¶47     The    colloquy      required          by   Klessig         is   substantially
similar to that set forth in the Cummings dissent.                                The circuit

courts are therefore familiar with and already use the colloquy

in voluntary waiver of counsel cases.                        Requiring the colloquy in

all cases involving the relinquishment of counsel is not too

much of a burden on the circuit courts and might even be viewed

as a simplification of process.

      ¶48     On    the   basis    of     the       record    in    the    instant       case   I

cannot    conclude        that    Suriano       validly       relinquished         his    Sixth
Amendment right to counsel.

                                                4
                                                        No.   2015AP959.ssa


    ¶49   Accordingly, I dissent.

    ¶50   I   am   authorized   to   state   that   Justice   ANN   WALSH

BRADLEY joins this dissent.




                                     5
    No.   2015AP959.ssa




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