                                                                       2015 WI 5

                  SUPREME COURT              OF   WISCONSIN
CASE NO.:               2013AP298-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent-Petitioner,
                             v.
                        Richard H. Harrison,
                                  Defendant-Appellant.



                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                                             (No cite)

OPINION FILED:          January 22, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          November 5, 2014

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Clark
   JUDGE:               Jon M. Counsell

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:

ATTORNEYS:
       For    the       plaintiff-respondent-petitioner,       the    cause     was
argued by Peter S. Rank, assistant attorney general, with whom
on the briefs was J.B. Van Hollen, attorney general.




       For the defendant-appellant, there was a brief by Katie R.
York,    assistant        state   public   defender,   and   oral    argument   by
Katie R. York.
                                                                      2015 WI 5
                                                            NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.       2013AP298-CR
(L.C. No.    2010CF88)

STATE OF WISCONSIN                        :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent-Petitioner,
                                                                 FILED
      v.
                                                            JAN 22, 2015
Richard H. Harrison,
                                                               Diane M. Fremgen
              Defendant-Appellant.                          Clerk of Supreme Court




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



      ¶1      SHIRLEY S. ABRAHAMSON, C.J.      This is a review of an
unpublished court of appeals opinion and order reversing the

judgment of conviction and postconviction order of the Circuit

Court for Clark County, Jon M. Counsell, Judge.1                The court of




      1
       State v. Harrison, No. 2013AP298-CR, unpublished slip op.
& order (Wis. Ct. App. Nov. 5, 2013).
                                                               No.    2013AP298-CR



appeals remanded the cause for a new trial.2                    We affirm the

decision of the court of appeals.

      ¶2    Richard   H.     Harrison,      the   defendant,         appealed     a

judgment of conviction and an order denying his motions                          for

postconviction      relief.        The      defendant     had        filed       two

postconviction     motions    requesting,    among    other    things,       a   new

trial.     The motions alleged that Judge Counsell had no authority

to preside over the defendant's trial and sentencing because the

defendant had filed a timely and proper request for substitution

of judge pursuant to Wis. Stat. § 971.20 and the request had

been granted.     Wisconsin Stat. § 971.20 is often referred to as

the   criminal    peremptory    substitution      statute,     the    peremptory

right to substitution, or the peremptory right to substitution

statute.3

      ¶3    The     circuit      court       denied      the         defendant's

postconviction motions.        The court of appeals summarily reversed

the judgment of conviction and postconviction order and remanded

for a new trial.
      ¶4    The State raises two issues for our review:



      2
       The court of appeals concluded that the instant case was
appropriate for summary disposition under Wis. Stat. § 809.21
(2011-12).

     All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
      3
       See State v. Holmes, 106 Wis. 2d 31, 34-35, 315 N.W.2d 703
(1982).


                                     2
                                                                          No.     2013AP298-CR



       ¶5     First,     did       the    defendant           forfeit    his     Wis.   Stat.

§ 971.20 peremptory right to substitution?

       ¶6     Second, if the circuit court erred in presiding over

the defendant's trial, sentencing, and postconviction motions

after   the     defendant      filed           a    timely     and    proper     Wis.   Stat.

§ 971.20      request    for       substitution          of    judge,    the     request   was

granted, and a new judge was appointed, was the error harmless?

       ¶7     For the reasons set forth, we answer the questions of

law posed by the State as follows:

       ¶8     First, we conclude that the defendant in the instant

case    did    not      forfeit          his       statutory     right      to    peremptory

substitution of the judge.                     The defendant persisted with his

substitution      request      throughout              the    proceedings      and   did   not

follow the procedure outlined in Wis. Stat. § 971.20(11) for

abandoning his substitution request.                           Thus, the circuit court

erred in presiding over the defendant's trial, sentencing, and

postconviction motions.

       ¶9     Second, harmless error analysis does not apply in the
instant case when the circuit court erred by presiding over the

defendant's trial, sentencing, and postconviction motions after

the defendant filed            a    timely and proper                Wis. Stat.      § 971.20

request for substitution of judge, the request was granted, and

a new judge was appointed.                     Applying the doctrine of harmless

error under these circumstances                        is contrary to case law and

would nullify the defendant's statutory right to substitute the

judge without furnishing a reason for the requested substitution


                                                   3
                                                             No.     2013AP298-CR



and without demonstrating that prejudice would result from the

substituted judge's presiding.

    ¶10    Accordingly, we affirm the decision of the court of

appeals and remand the cause to the circuit court for a new

trial.

                                     I

    ¶11    The facts are not in dispute for purposes of this

review.

    ¶12    On July 16, 2010, the State filed a criminal complaint

against the defendant in Clark County Circuit Court, charging

him as a repeater with burglary, resisting and obstructing an

officer,   misdemeanor   theft,     and   criminal   damage    to     property.

Circuit Court Judge Jon M. Counsell is the sole circuit court

judge in Clark County.

    ¶13    On   four   occasions,    the    defendant   or     his     attorney

requested that Judge Counsell not preside at a case involving

the defendant:

    ¶14    1. On August 20, 2010, the defendant filed a timely
and proper request for substitution of judge pursuant to Wis.

Stat. § 971.20.    On August 26, 2010, the circuit court approved

the defendant's request.     Because Clark County is a single-judge

county, the chief judge of the district reassigned the case to

Judge Thomas Flugaur, a judge in a neighboring county.

    ¶15    On December 29, 2010, Judge Flugaur presided over the

defendant's preliminary hearing.           Judge Flugaur found probable

cause and bound the defendant over to the Clark County Circuit
Court for arraignment and trial.           Judge Flugaur instructed the
                                     4
                                                                No.       2013AP298-CR



parties: "You can schedule with Judge Counsell for arraignment

and trial since this court is no longer involved in the case."

This comment ended the proceedings.

       ¶16    2. On January 14, 2011, an arraignment was held before

Judge Counsell on the charges in the instant case and on charges

in a subsequently filed second criminal complaint.                         Wisconsin

Stat. § 971.20(9) provides that "the judge whose substitution

has been requested has no authority to act further in the action

except to . . . accept pleas . . . ."                 Thus, Judge Counsell's

presiding      over   the   arraignment       did    not   violate    Wis.      Stat.

§ 971.20(9).

       ¶17    The defendant's counsel advised the circuit court that

the defendant intended to request substitution of the judge in

the   second    criminal     case.    The     defendant's     counsel       did   not

mention the prior substitution request in the instant case.

       ¶18    Although the defendant's counsel advised the court at

arraignment that he would be filing a request for substitution

of judge in the second case that very day, the district attorney
and the defendant's counsel set a trial date for the instant

case for March 29, 2011.

       ¶19    3. On February 17, 2011, at the pretrial conference

for the instant case, Judge Counsell reported that the case was

still first on the calendar for March 29, 2011.                           The State

advised the circuit court that if the defendant took the stand,

it    would   file    a   motion   allowing    the    defendant      to    be   asked

whether he had ever been convicted of a crime.                 The defendant's
counsel had no motions.
                                        5
                                                                          No.    2013AP298-CR



       ¶20    The defendant, appearing by video, stated that it had

been "several months" since he had spoken with his attorney.4

The defendant further stated that he was under the impression

that his attorney would offer a motion regarding "change of

judge based on the fact [of] conflict of interest and some other

things."          The defendant stated several times:                      "I don't know

what's going on."

       ¶21    The       circuit    court,        Judge     Counsell      presiding,      asked

whether      the     defendant          wanted       to   speak    privately      with    his

attorney.         The defendant said he did and the defendant's counsel

said       that    he    would     arrange           to   speak    privately     with     the

defendant.

       ¶22    Judge Counsell did not address the defendant's request

for    change      of    judge     but     instead        said    that   the    defendant's

counsel intended to go see the defendant "and you can talk over

these issues.           We are set for the trial.                Thank you all."

       ¶23    4. On March 24, 2011, the defendant's counsel sent a

letter to the circuit court, along with an affidavit from the
defendant, requesting that Judge Counsell recuse himself from

the    instant      case.         The    letter       disassociated       the   defendant's

counsel from the defendant's request that Judge Counsell recuse

himself, stating as follows:

       Further, enclosed is a notarized statement from my
       client that I have held and not filed with the Court
       4
       The defendant's counsel advised the circuit court that
"for the record, it hasn't been months. The last time we were
in court was slightly more than 30 days ago."


                                                 6
                                                              No.     2013AP298-CR


     until this time. I hesitated to bring this matter up
     because I have no feeling of "bias" as my client
     appears to have, and I did not know how to handle the
     matter.   With my last meeting with my client, I was
     directed to file same and ask that you interpret this
     paragraph of my letter to you to be a request, made on
     behalf and at the direction of my client, to review
     his affidavit and address the matter of him requesting
     your recusal from this case.     My client and I have
     already discussed the matter and I believe he
     understands    the    circumstances    and   potential
     ramifications of his request and he also would
     acknowledge that the request is made by me solely
     based upon his direction to do so.
     ¶24   Judge   Counsell     denied       the   defendant's      request    the

following day.

     ¶25   Judge Counsell continued to preside over the remainder

of the defendant's case, including the defendant's trial in July

2011 and the sentencing hearing in September 2011.5

     ¶26   Although the defendant used phrases like "change of

judge"   and   "recusal"   in    some       of   his   filings,     rather    than

consistently     discussing     Judge       Counsell's    "substitution"       or

"authority to act," the defendant's goal was clear:                  He did not

want Judge Counsell on the instant case or the other criminal

case in which he was being charged.

     ¶27   After a jury trial in the instant case, the defendant

was found guilty of three offenses6 and Judge Counsell imposed




     5
       In his March 24 letter to the court, the defendant's
counsel also requested a postponement of the trial from March
2011. The circuit court granted the postponement request.


                                        7
                                                                  No.     2013AP298-CR



three consecutive sentences for a total of 13 years' initial

confinement and seven years' extended supervision.

    ¶28     On     August      27,    2012,       the     defendant        filed     a

postconviction      motion     requesting,     among      other    things,    a    new

trial.      The    defendant    asserted      that      Judge   Counsell     had   no

authority to preside over the defendant's trial or sentencing

because the defendant had filed a timely and proper request for

substitution of judge under Wis. Stat. § 971.20 and the request

had been granted.

    ¶29     The defendant also requested "in the alternative" that

he be declared eligible for the Earned Release Program (ERP) and

Challenge Incarceration Program (CIP).

    ¶30     The circuit court granted the defendant's request for

ERP and CIP eligibility.             But the circuit court declined to

address the defendant's request for a new trial, stating: "As

the court has granted defendant's requested alternate relief,

the court concludes that there is no longer a need for 'a new

trial or an evidentiary hearing' to address other issues the
defendant    has    raised,    as    they   are    rendered       moot"    (citation

omitted).




    6
       A jury found the defendant guilty of burglary of a
building or dwelling as a repeater, contrary to Wis. Stat.
§§ 943.10(1m)(a) and 939.62(1)(b); resisting or obstructing an
officer as a repeater, contrary to Wis. Stat. §§ 946.41(1) and
939.62(1)(a); and theft of movable property as a repeater,
contrary to Wis. Stat. §§ 943.20(1)(a) and 939.62(1)(a).


                                        8
                                                    No.   2013AP298-CR



    ¶31   The defendant filed an amended postconviction motion,

clarifying that his request for ERP and CIP eligibility was not

intended to be in the alternative to his request for a new

trial.

    ¶32   The circuit court, Judge Counsell presiding, denied

the amended postconviction motion, stating:

    The defendant has filed an amended motion for post-
    conviction relief.     The motion was preceded by a
    letter from defendant's counsel [] filed November 28,
    2012, attempting to explain that defendant was not
    satisfied with the relief the court granted defendant
    in its decision filed November 27, 2012.

    The court granted defendant the relief asked for in
    his original post-conviction motion.     The court is
    concluded with this matter. All remaining motions are
    denied. All future hearings are cancelled.
    ¶33   The court of appeals summarily reversed the judgment

of conviction and postconviction order and remanded the matter

to the circuit court for a new trial.         The court of appeals

cited Wis. Stat. § 971.20(9) and (11) and held as follows:

    Once a timely substitution request has been made and
    approved as to form, "the judge whose substitution has
    been requested has no authority to act further in the
    action except to conduct the initial appearance,
    accept pleas and set bail," unless the defendant or
    defense counsel, the prosecutor, the substituted judge
    and the substituting judge all sign and file an
    agreement   to  transfer  the   matter  back   to  the
    substituted judge.7
                               II


    7
       State v. Harrison, No. 2013AP298-CR, unpublished slip op.
& order at 2 (Wis. Ct. App. Nov. 5, 2013).


                                9
                                                                          No.     2013AP298-CR



      ¶34       The State presents two questions for our review:

      ¶35       First,    did     the     defendant         forfeit      his     Wis.     Stat.

§ 971.20 peremptory right to substitution?

      ¶36       Second, if the circuit court erred in presiding over

the defendant's trial, sentencing, and postconviction motions

after     the    defendant      filed      a    timely       and      proper     Wis.     Stat.

§ 971.20     request      for     substitution         of    judge,      the     request    was

granted, and a new judge was appointed, was the error harmless?

      ¶37       Both    questions       require       us    to   interpret       Wis.     Stat.

§ 971.20.         The    interpretation          and       application      of    a     statute

present questions of law that we decide independently of the

circuit court and the court of appeals but benefiting from their

analyses.8

      ¶38       Thus, we turn to Wis. Stat. § 971.20, the criminal

peremptory substitution statute.

                                               III

      ¶39       Wisconsin   Stat.       § 971.20       grants         criminal    defendants

the right to substitute a judge without providing a reason for
the   requested        substitution.            Two    subsections        are     especially

important in the present case.

      ¶40       Subsection (9) declares that when a timely request for

substitution       of     judge     has    been       filed      in    proper     form,     the

substituted judge "has no authority to act further in the action

except to conduct" three proceedings enumerated in the statute.

      8
       See State v. Austin,                     171        Wis. 2d 251,         254-55,     490
N.W.2d 780 (Ct. App. 1992).


                                               10
                                                              No.    2013AP298-CR



      ¶41    Subsection   (11)   explains     that    after    the    statutory

right to substitution has been properly invoked, a substituted

judge may return to preside over the case "[u]pon the filing of

an agreement signed by the defendant or defendant's attorney and

by   the    prosecuting   attorney,   the    substituted      judge    and   the

substituting judge."       As the text makes clear, this subsection

permits a substituted judge to return to a case when everyone

involved in the matter agrees to it.

      ¶42    The criminal peremptory substitution statute provides

in full as follows:

      971.20.    Substitution of Judge.

      (1) Definition.   In this section, "action" means all
      proceedings before a court from the filing of a
      complaint to final disposition at the trial level.

      (2) One substitution.   In any criminal action, the
      defendant has a right to only one substitution of a
      judge, except under sub. (7).        The right of
      substitution shall be exercised as provided in this
      section.

      (3) Substitution      of   judge     assigned   to   preliminary
      examination.

      (a) In this subsection, "judge" includes a circuit
      court commissioner who is assigned to conduct the
      preliminary examination.

      (b) A written request for the substitution of a
      different judge for the judge assigned to preside at
      the preliminary examination may be filed with the
      clerk, or with the court at the initial appearance.
      If filed with the clerk, the request must be filed at
      least 5 days before the preliminary examination unless
      the court otherwise permits. Substitution of a judge
      assigned to a preliminary examination under this
      subsection exhausts the right to substitution for the
      duration of the action, except under sub. (7).

                                      11
                                            No.   2013AP298-CR


(4) Substitution of trial judge originally assigned.
A written request for the substitution of a different
judge for the judge originally assigned to the trial
of the action may be filed with the clerk before
making any motions to the trial court and before
arraignment.

(5) Substitution of trial judge subsequently assigned.
If a new judge is assigned to the trial of an action
and the defendant has not exercised the right to
substitute an assigned judge, a written request for
the substitution of the new judge may be filed with
the clerk within 15 days of the clerk's giving actual
notice or sending notice of the assignment to the
defendant or the defendant's attorney.         If the
notification occurs within 20 days of the date set for
trial, the request shall be filed within 48 hours of
the clerk's giving actual notice or sending notice of
the assignment. If the notification occurs within 48
hours of the trial or if there has been no
notification, the defendant may make an oral or
written   request  for   substitution  prior  to   the
commencement of the proceedings.

(6) Substitution of judge in multiple defendant
actions.     In   actions  involving  more   than one
defendant, the request for substitution shall be made
jointly by all defendants.      If severance has been
granted and the right to substitute has not been
exercised prior to the granting of severance, the
defendant or defendants in each action may request a
substitution under this section.

(7) Substitution of judge following appeal.     If an
appellate court orders a new trial or sentencing
proceeding, a request under this section may be filed
within 20 days after the filing of the remittitur by
the appellate court, whether or not a request for
substitution was made prior to the time the appeal was
taken.

(8) Procedures for clerk.    Upon receiving a request
for substitution, the clerk shall immediately contact
the judge whose substitution has been requested for a
determination of whether the request was made timely
and in proper form.     If no determination is made
within 7 days, the clerk shall refer the matter to the
chief judge for the determination and reassignment of

                          12
                                                              No.    2013AP298-CR


    the action as necessary. If the request is determined
    to be proper, the clerk shall request the assignment
    of another judge under s. 751.03.

    (9) Judge's authority to act.    Upon the filing of a
    request for substitution in proper form and within the
    proper time, the judge whose substitution has been
    requested has no authority to act further in the
    action except to conduct the initial appearance,
    accept pleas and set bail.

    (10) Form of request. A request for substitution of a
    judge may be made in the following form:

    STATE OF WISCONSIN

    CIRCUIT COURT

     . . . County

    State of Wisconsin

            vs.

     . . . (Defendant)

    Pursuant to s. 971.20 the defendant (or defendants)
    request(s) a substitution for the Hon. . . . as judge
    in the above entitled action.

    Dated . . . , . . . (year).

    . . . (Signature of defendant or defendant's attorney)

    (11) Return of action to substituted judge. Upon the
    filing of an agreement signed by the defendant or
    defendant's attorney and by the prosecuting attorney,
    the substituted judge and the substituting judge, the
    criminal action and all pertinent records shall be
    transferred back to the substituted judge.
    ¶43     In    the     instant   case,    it   is    undisputed       that    the

defendant        timely     and     properly      invoked    his     peremptory

substitution right under the statute; that the circuit court

granted     the    defendant's      substitution       request;    and    that     a



                                        13
                                                                        No.     2013AP298-CR



substitute judge, Judge Flugaur, presided over the defendant's

preliminary hearing.

    ¶44     It    is   also     undisputed      that       the    substituted        judge,

Judge Counsell, returned to preside over the instant case after

the defendant had timely and properly filed his request for

substitution, the request had been granted, and the substitute

judge had presided over the preliminary hearing.

    ¶45     Finally, it is undisputed that no written agreement

pursuant to Wis. Stat. § 971.20(11) was filed authorizing the

substituted       judge    to    return       to    preside           over     the   trial,

sentencing, and postconviction motions in the instant case.

                                          A

    ¶46     The    first   question       the      State    poses       is     whether   the

defendant forfeited his Wis. Stat. § 971.20 right to peremptory

substitution.

    ¶47     The State argues that by participating in the trial

and sentencing conducted by Judge Counsell and by failing to

object to Judge Counsell's presiding at those proceedings, the
defendant   forfeited      his    right    to      object        to    Judge    Counsell's

return to the instant case.

    ¶48     The State's argument is unconvincing for two reasons.

    ¶49     First, the text of the statute provides the method by

which a substituted judge can return to a case, that is, the

method by which a substituted judge regains authority to act in

the case.        It is undisputed that there was no compliance with

this provision in the instant case.


                                          14
                                                                           No.     2013AP298-CR



       ¶50    Nothing in the statute intimates that a defendant can

forfeit or waive the right to substitution without complying

with Wis. Stat. § 971.20(11).                        We need not address, however,

whether a request for substitution of the judge may be forfeited

or waived without complying with Wis. Stat. § 971.20(11) under

circumstances not presented in the instant case.                                   Under the

circumstances of the instant case, it is clear the defendant did

not forfeit or waive his substitution request.

       ¶51    Second, case law interpreting and applying Wis. Stat.

§ 971.20 does not support the State's position.                                  According to

State    v.   Austin,      171    Wis. 2d 251,            490    N.W.2d 780        (Ct.    App.

1992), a request for substitution of the judge is not forfeited

when    the   defendant      makes         a     timely    and    proper         substitution

request, the substitution request is granted, and a new judge

presides over one of the proceedings in the case.

       ¶52    In   Austin,       as   in       the    instant     case,     the     defendant

timely and properly filed a request for substitution of judge.

The    circuit     court   granted         the    request,       and   a   new     judge   was
assigned.

       ¶53    The new judge accepted Austin's guilty plea.                           Austin's

supervision was later revoked and the substituted judge returned

to sentence Austin after revocation.                       Austin did not object to

the participation of the substituted judge at this proceeding.

       ¶54    The court of appeals concluded that Austin's failure

to object to the substituted judge's continued participation in




                                                15
                                                                 No.    2013AP298-CR



the case did not constitute an implied waiver of Austin's right

to substitution of the judge.9

     ¶55    According        to   the    Austin   decision,    the   doctrines    of

forfeiture and waiver do not apply after a substitution request

is granted.10        The court of appeals declared that "deviation from

the requirements of [§ 971.20(11)] would allow for substantial

problems      that     are    prevented      by    strict     adherence    to    the

statute."11      It further declared that Wis. Stat. § 971.20(11)


     9
       Austin        uses     the       phrase    "implied    waiver"     to    mean
forfeiture.

     For a discussion of the distinction between waiver                          and
forfeiture, see State v. Ndina, 2009 WI 21, ¶¶29-31,                             315
Wis. 2d 653, 761 N.W.2d 612.  Cases, including Austin, do                        not
use the two words consistently.   See Ndina, 315 Wis. 2d                        653,
¶28.
     10
          Austin, 171 Wis. 2d at 257-58.
     11
       Id. at 257. The "substantial problems" identified by the
Austin court were as follows:

     First, to find implied waiver in circumstances like
     these would be to condone carelessness among lawyers
     and courts. It is the responsibility of both lawyers
     and courts to check on previous substitutions as a
     matter of course. Second, to allow an implied waiver
     would serve to unfairly penalize less informed
     defendants who, because they appear pro se, or because
     they are represented by successor counsel or forgetful
     counsel, may not remember the substitution.      While
     apparently acquiescent before the judge, they are
     still entitled to the protection of the substitution
     statute.   Third, to allow an implied waiver would be
     to allow a new form of "forum shopping." Defendants,
     realizing that the first judge is more "lenient" than
     the second judge, could simply reappear before the
     first judge, hoping that busy clerks and prosecutors
     would not notice.      Defendants unilaterally could
                                                     (continued)
                                           16
                                                                 No.     2013AP298-CR



"specifically delineates the requirements to be followed for a

transfer    back   to   the    substituted      judge."12            Because    those

requirements were not met, Austin did not lose his right to

substitution of the judge.

     ¶56    The    court      of     appeals         in     Austin     imposed       a

responsibility     on   lawyers    and      courts    "to    check     on    previous

substitutions      as   a   matter    of     course,"       intimating        that   a

defendant need not repeatedly request substitution to preserve

the issue after a timely and proper substitution request has

been made and granted.13

     ¶57    Austin relied on State v. Smith, 106 Wis. 2d 17, 315

N.W.2d 343 (1982), a case decided by this court.                            The Smith

court stated that "[t]he plain language of the statute controls

the disposition of this case.          Once a judge has been substituted




     create a second substitution.       Such a unilateral
     loophole was explicitly proscribed by the sec.
     971.20(11) requirement that both parties agree before
     a case is returned to the first judge.

Austin, 171 Wis. 2d at 257.
     12
          Id.
     13
          Id.


                                       17
                                                                         No.     2013AP298-CR



out   of     a     case,     he    may     not       preside     over    any     subsequent

proceedings in that case."14

      ¶58    Austin also relied on this court's decision in Clark

v. State, 92 Wis. 2d 617, 632-33, 286 N.W.2d 344 (1979).                                 Clark

requested        substitution       of    the        judge.      Nothing       happened     in

response to Clark's request and Clark did not follow up on his

request.         He did not seek an appropriate writ to compel the

circuit court judge to stop the proceedings, to rule on the

request,     or    to    reassign        the    case.         Clark   proceeded        through

motion     hearings        and    trial    without       objecting       to    the     judge's

presiding.           The     Clark       court       explained        that     under     these

circumstances, an "objection to the judge's or clerk's failure

to substitute a judge comes too late on appeal."15

      ¶59    The     Clark       court    also       commented    on    the     then-recent

enactment of present Wis. Stat. § 971.20(11), which was not in

effect when Clark's case was pending.                           The Clark court wrote

that before the enactment of subsection (11), a defendant like

Clark could unilaterally withdraw a request for substitution.16


      14
       Smith, 106 Wis. 2d at 20.     Smith's reference to "any
subsequent proceeding" did not refer to the ability of a
substituted judge to conduct "an initial appearance, accept
pleas of not guilty, [or] set bail," which were permitted under
the version of Wis. Stat. § 971.20 in effect when Smith was
decided. The Smith case did not involve any of these enumerated
proceedings.
      15
           Clark    v.     State,    92        Wis. 2d 617,      631,    286     N.W.2d 344
(1979).
      16
           Id. at 631-32.


                                                18
                                                                        No.   2013AP298-CR



The court construed Clark's conduct "as in effect constituting a

unilateral        withdrawal      of     the      request       for     substitution."17

However, after the enactment of subsection (11), the request for

substitution "is no longer subject only to the control of the

party making the motion."18

      ¶60    The State does not argue that the instant case differs

from Austin or that Austin does not govern the instant case.

Rather, the State asserts that Austin was incorrectly decided

and urges this court to overrule Austin and to apply the common-

law rule of forfeiture to the instant case.

      ¶61    Forfeiture is the failure to timely assert a right.19

Waiver,     in    contrast,      is    the     "intentional         relinquishment     or

abandonment of a known right."20                        The words "forfeiture" and

"waiver" are often (incorrectly) used interchangeably in cases.

      ¶62    In    the   instant       case,      the     State    contends    that   the

defendant        forfeited       (rather        than      waived)       his   right    to

substitution.       More specifically, the State asserts that because

the   defendant     proceeded         through     trial     and    sentencing    despite
Judge Counsell's presiding, and without reserving the right to

challenge Judge Counsell's return to the case, the defendant

forfeited his request for and right of substitution.                          The State

      17
           Id. at 632.
      18
           Id.
      19
       State       v.    Soto,    2012    WI      93,    ¶35,     343   Wis. 2d 43,   817
N.W.2d 848.
      20
           Id.


                                             19
                                                                  No.    2013AP298-CR



contends that the defendant's conduct at trial and sentencing

(his silence with regard to Judge Counsell's return to the case,

in particular) was inconsistent with the defendant's request for

substitution of the judge.           The State concludes that through his

conduct,    the     defendant       forfeited      his     statutory     right     to

substitution.

    ¶63    The common-law rule of forfeiture, argues the State,

promotes    expediency      and     efficiency     and     encourages      diligent

preparation.        The     State    urges    us    to     recognize     that     the

defendant's belated request for a "do-over" in the instant case

highlights the potential for abuse under the Austin rule.

    ¶64    To     support     its     position      that     Austin     should     be

overruled and that the court should declare that a substitution

request    that    has    been    granted    is     nevertheless        subject   to

forfeiture,       the    State    relies     on    State     v.    Damaske,       212

Wis. 2d 169, 567 N.W.2d 905 (Ct. App. 1997).21                 According to the



    21
       The State also relies on Pure Milk Products Co-op v.
National Farmers Organization, 64 Wis. 2d 241, 219 N.W.2d 564
(1974), and Golos v. Worzalla, 178 Wis. 414, 190 N.W. 114
(1922). Neither the governing statutes nor the issues presented
in Pure Milk and Golos are the same as in the instant case.

     The issue in Pure Milk was whether a request for
substitution pursuant to the civil peremptory substitution of
judge statute was timely when preliminary proceedings had
already taken place but trial had not yet commenced. The court
held the request untimely under the statute and thus denied
relief.    In the instant case, it is undisputed that the
defendant's substitution request was timely and proper.  Thus,
Pure Milk is unhelpful.

                                                                        (continued)
                                        20
                                                                No.    2013AP298-CR



State, Damaske, which was decided five years after Austin, is

inconsistent with Austin.

    ¶65       We   conclude     that    the       facts    of     Damaske       are

significantly different from those in Austin and in the instant

case; that Damaske and Austin are not inconsistent with each

other; and, finally, that Austin should not be overruled.

    ¶66       In Damaske, unlike in Austin and in the instant case,

the trial judge denied the defendant's request for substitution

as untimely.       Damaske never challenged this determination by

seeking review of the denial either by the chief judge of the

administrative district or by a writ of prohibition.22                    Damaske

entered   a    no-contest     plea   with   the    judge   whom       Damaske   had



     The issue in Golos was whether, under the peremptory
substitution of judge statute in place at the time, a defendant
could "waive the disqualification of the judge created by the
filing of [an affidavit of prejudice] by subsequently appearing
and proceeding with the cause as if no affidavit had been
filed[.]"   Golos, 178 Wis. at 420.   The court determined that
the defendant's failure to object to the judge's return four
years after the request for substitution was made indicated that
the request for substitution had passed from the minds of all
parties and the judge.

     The Golos court concluded that a waiver could be inferred
under the circumstances of that case.      The court stated: "A
waiver should not be implied, except where the facts are clear,
and it appears that no right of the party in respect thereto has
been consciously denied by the judge." Golos, 178 Wis. at 423.
The   facts  and   circumstances  of   the   instant  case   are
significantly different and do not permit the inference made in
Golos.
    22
       State v. Damaske, 212 Wis. 2d 169, 189, 567 N.W.2d 905
(Ct. App. 1997).


                                       21
                                                                         No.     2013AP298-CR



attempted to substitute presiding.                     Damaske made no objections

regarding the judge's presiding.

      ¶67    The    court      of     appeals      concluded      in    Damaske      that    by

entering a plea of no contest without a reservation of rights

and   without      seeking       immediate         review    of   the    denial      of     his

substitution request, Damaske waived the right to object to the

substituted judge's imposing sentence.23

      ¶68    Damaske          presents    a        significantly         different        fact

situation than that presented in Austin or in the instant case.24

In Damaske, the request for substitution was denied as untimely

and no new judge was appointed to preside.                        In Austin and in the

instant case, the request for substitution was granted as timely

and   proper       and    a     new    judge       participated         in     one   of     the

proceedings before the substituted judge returned.

      ¶69    Austin remains intact after Damaske.                            The court of

appeals in Austin refused to view Austin's conduct, namely his

participation in the revocation proceeding, as inconsistent with

his previous request for substitution.                       The court of appeals in
the   instant      case       likewise    refused       to    view      the     defendant's

participation at trial and sentencing as inconsistent with the

defendant's previous request for substitution.



      23
           Damaske, 212 Wis. 2d at 186, 189-90.
      24
       The Damaske opinion provides other examples of waiver or
forfeiture of the right to complain on appeal that a request for
substitution was not honored.      The facts in those examples
differ from the facts in Austin and in the instant case.


                                              22
                                                                           No.     2013AP298-CR



     ¶70   As    we     set    forth    previously,              the    defendant     in   the

present case requested on four occasions that Judge Counsell not

preside in the instant case or in a different criminal case

involving the defendant.               The defendant's initial request for

substitution in the instant case was granted; his subsequent

requests were acknowledged but not granted.                             The circuit court

judge was, therefore, fully aware of the defendant's challenge

to the judge's participation in the instant case and another

pending criminal case.

     ¶71   The defendant's efforts seeking substitution in the

instant case were, as we explained previously, rebuffed by the

defendant's counsel and the circuit court.

     ¶72   These       facts    do   not         support     a    conclusion        that    the

defendant forfeited his request for substitution.                                Indeed, the

case law makes it eminently clear that after the defendant's

timely and proper request for substitution of judge was made and

granted in the instant case, the defendant did not have to take

additional      steps     to    avoid           forfeiture        of     his     substitution
request.

     ¶73   We need not address whether under other circumstances

an   accused     may     forfeit       or       waive      the     statutory       right    to

substitute     the     judge   after        a    timely     and        proper    request   for

substitution has been made and granted.                            We need not address

whether compliance with Wis. Stat. § 971.20(11) is the exclusive

method   for    abandoning      a    request         for    substitution.            We    need

address only whether under the circumstances of the instant case
the defendant forfeited his request for substitution.
                                                23
                                                                           No.    2013AP298-CR



       ¶74    Again, the circumstances of the instant case are that

a    timely    and     proper    request       for     substitution         was     made       and

granted; a new judge presided at a hearing; the substituted

judge       returned     to      preside       over        the    defendant's         trial,

sentencing, and postconviction motions; the defendant objected

to the substituted judge's returning; and no agreement under

Wis. Stat. § 971.20(11) was reached.

       ¶75    Austin          answers      our         question:            Under         these

circumstances,         the    defendant's          right   to    substitution        was       not

forfeited.       In Austin, the court of appeals remanded the cause

for a new trial.

       ¶76    We conclude that this case presents a fact situation

substantially        similar     to     that       presented     in   Austin        and    that

Austin is not inconsistent with Damaske or the other cases cited

by    the     State,    which     recognize          forfeiture       or     waiver       of     a

substitution request under certain circumstances not present in

the instant case.             We further conclude that Austin governs the

instant case; that the defendant did not forfeit the right to
substitution; and that Judge Counsell erred in presiding over

the defendant's trial, sentencing, and postconviction motions.

Adhering to Austin, we remand the cause for a new trial on

account of the circuit court's error.

                                               B

       ¶77    Because we have concluded that the circuit court erred

in    presiding        over     the     defendant's        trial,      sentencing,             and

postconviction motions, the State asks that we determine the
error was harmless.
                                            24
                                                                       No.    2013AP298-CR



      ¶78       According to the State, the error was harmless beyond

a   reasonable         doubt.         The    State    argues    that    the    defendant

received a fair trial before an impartial judge.                              The State

points out that no evidence has been presented indicating that

the proceedings were unfair due to Judge Counsell's presiding.

      ¶79       We are not persuaded by the State's harmless error

argument.

      ¶80       To determine whether Wis. Stat. § 971.20 is amenable

to harmless error analysis, we must look to the text of the

statute.        The statute declares that a substituted judge, here

Judge Counsell, "has no authority to act further in the action

except     to    conduct"       three       enumerated   proceedings.25         We    must

determine       what    the     phrase       "no    authority   to     act"   means   and

whether the phrase is amenable to a harmless error analysis.

      ¶81       The court of appeals and the parties offer different

interpretations of the phrase "no authority to act" in Wis.

Stat. § 971.10(9).

      ¶82       The    court     of     appeals      determined      that     "when   the
substitution statute refers to a judge lacking the 'authority to

act' it means the court can no longer exercise jurisdiction over

the matter."26           The court of appeals therefore declared that




      25
           See Wis. Stat. § 971.20(9).
      26
       State v. Harrison, No. 2013AP298-CR, unpublished slip op.
& order at 3 (Wis. Ct. App. Nov. 5, 2013).


                                               25
                                                                   No.    2013AP298-CR



"when a judge lacks 'authority to act,' any judgment or order

rendered by that judge is void for lack of jurisdiction."27

     ¶83    The court of appeals' position does not comport with

the case law.        Damaske explains that Wis. Stat. § 971.20(9) is

"a limitation on the trial judge's competency to act, not on his

or her jurisdiction."28

     ¶84    Adhering to Damaske, the defendant contends that Wis.

Stat. § 971.20(9), referring to the substituted judge's lack of

authority,    deprives        a    substituted       circuit      court    judge   of

"competency," not jurisdiction.                  The defendant cites Jefferson

County v. Joseph S., 2010 WI App 160, ¶15, 330 Wis. 2d 737, 795

N.W.2d 450,     and    State           ex   rel.    Jones    v.    Franklin,       151

Wis. 2d 419, 423-25, 444 N.W.2d 738 (Ct. App. 1989), for the

proposition that harmless error analysis does not apply when a

circuit court lacks competency to act.

     ¶85    The State appears to agree with the defendant that the

error of Judge Counsell's presiding over the defendant's trial,

sentencing, and postconviction motions was not jurisdictional.
However,    citing    State       v.    Holmes,    106   Wis. 2d 31,      69-70,   315

     27
          Id. at 3.
     28
       Damaske, 212 Wis. 2d at 188-89.    See Wis. Const. art.
VII, § 8 ("Except as otherwise provided by law, the circuit
court shall have original jurisdiction in all matters civil and
criminal within this state . . . . ").   "Only when the failure
to abide by a statutory mandate is 'central to the statutory
scheme' of which it is a part will the circuit court's
competency to proceed be implicated." Village of Trempealeau v.
Mikrut, 2004 WI 79, ¶10, 273 Wis. 2d 76, 681 N.W.2d 190
(citation omitted).


                                            26
                                                                         No.    2013AP298-CR



N.W.2d 703     (1982),       the      State    contends     that    "[a]n       individual

judge's   'authority'            to   act     in   a    specific    case       is    an    even

narrower concept than competency . . . ."

    ¶86       The       Holmes    court       upheld     the     criminal       peremptory

substitution of judge statute against a challenge grounded in

separation     of       powers.         The   court     reasoned     that      Wis.       Stat.

§ 971.20 removes the individual judge but does not deprive the

circuit court of the power to hear the case by assigning another

judge.    Holmes does not support the State's contention that a

judge's   authority         to    act    in    a   specific      case    is     a    narrower

concept than competency.

    ¶87       The case law supports the defendant's contentions that

Judge Counsell lost competency to act in the present case and

that harmless error analysis does not apply.                       The cases cited by

the defendant clearly establish that a harmless error analysis

does not apply when such an analysis effectively nullifies a

right granted by statute.

    ¶88       Applying a harmless error analysis in the instant case
would nullify the defendant's statutory right to substitution of

the judge.          As we explained previously, the statute does not

require   a    defendant         to     provide    a    reason     for    the       requested

substitution or to demonstrate that prejudice would result from

the substituted judge's presiding.

    ¶89       In    a    prior    iteration        of   Wis.   Stat.      § 971.20,         the

legislature did require an "affidavit of prejudice" to support a




                                              27
                                                              No.   2013AP298-CR



defendant's     request    for   substitution     of   the    judge.29        The

legislature repealed the affidavit of prejudice requirement to

protect both defendants and circuit court judges and to preserve

the public's confidence in a fair, impartial judicial system.30

"[T]he intent of [§ 971.20] was that a defendant should not have

to prove prejudice to obtain a new judge."31           As the court stated

in Holmes, 106 Wis. 2d at 61:

      In weighing the merits of alternative approaches to
      substitution, the legislature obviously concluded that
      sec.   971.20 . . . is  a  commendable   procedure  to
      protect the defendant's right to a fair trial, to
      protect the judge from having his or her impartiality
      unfairly impugned, to avoid having the lawyer file an
      affidavit of prejudice without having guidelines as to
      the proper use of the affidavit, and to promote the
      bench's and public's interest in preserving confidence
      in the judiciary.
      ¶90    Thus, by seeking to impose a harmless error analysis

in the present case, the State attempts to insert a condition

for substitution that the legislature has deliberately refused

to   impose.      The   court    should    not   add   an    element     to   the

substitution statute that the legislature did not enact.32

      29
       For the statutory history of Wis. Stat. § 971.20, see
State v. Bell, 62 Wis. 2d 534, 536-38, 215 N.W.2d 535 (1974);
State v. Holmes, 106 Wis. 2d 31, 47-51, 315 N.W.2d 703 (1982).
      30
           See Holmes, 106 Wis. 2d at 61.
      31
           Bell, 62 Wis. 2d at 537.       See also Holmes, 106 Wis. 2d at
60-61.
      32
       See State v.       Matasek, 2014 WI 27, ¶20, 353 Wis. 2d 601,
846 N.W.2d 811 ("We       should not read into the statute language
that the legislature       did not put in" (quoting Brauneis v. LIRC,
2000 WI 69, ¶27, 236      Wis. 2d 27, 612 N.W.2d 635).).


                                     28
                                                                     No.     2013AP298-CR



       ¶91    In sum, application of a harmless error analysis in

the    present     case    would     undercut        Wis.    Stat.         § 971.20    by

nullifying the defendant's statutory right to request and obtain

substitution without any showing of prejudice.                      The text of Wis.

Stat. § 971.20 controls the disposition of the instant case.

The    statutory     violation     in    the   instant       case    is     simply    not

amenable to harmless error review, and the case law does not

permit us to apply a harmless error analysis.                       Thus, we decline

to do so.

                                        * * * *

       ¶92    For the reasons set forth, we answer the questions of

law posed by the State as follows:

       ¶93    First, we conclude that the defendant in the instant

case    did    not    forfeit      his    statutory         right    to      peremptory

substitution of the judge.               The defendant persisted with his

substitution     request    throughout         the   proceedings          and   did   not

follow the procedure outlined in Wis. Stat. § 971.20(11) for

abandoning his substitution request.                  Thus, the circuit court
erred in presiding over the defendant's trial, sentencing, and

postconviction motions.

       ¶94    Second, harmless error analysis does not apply in the

instant case when the circuit court erred by presiding over the

defendant's trial, sentencing, and postconviction motions after

the defendant filed        a    timely and proper            Wis. Stat.         § 971.20

substitution request, the request was granted, and a new judge

was appointed.        Applying the doctrine of harmless error under
these circumstances is contrary to case law and would nullify
                                          29
                                                           No.   2013AP298-CR



the defendant's statutory right to substitute the judge without

furnishing a reason for the requested substitution and without

demonstrating that prejudice would result from the substituted

judge's presiding.

    ¶95    Accordingly, we affirm the decision of the court of

appeals and remand the cause to the circuit court for a new

trial.

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

affirmed and the cause is remanded for a new trial.




                                   30
    No.   2013AP298-CR




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