COURT OF APPEALS

DECISION

DATED AND FILED

October 8, 2019

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2018AP2016-CR Cir. Ct. No. 2015CF2065

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARCUS DEMOND ANDERSON, SR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Milwaukee County: TIMOTHY M. WITKOWIAK and JANET C. 

PROTASIEWICZ, Judges. Order reversed and cause remanded with directions.

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

¶1 KESSLER, J. Marcus Demond Anderson, Sr. appeals a judgment 

of conviction, following guilty pleas, to two counts of delivering heroin. 
No. 2018AP2016-CR

2

Anderson also appeals the order denying his motion for postconviction relief.1

Anderson argues that statements made at his sentencing hearing constituted an 

implicit request for new counsel and the circuit court erroneously exercised its 

discretion in failing to inquire about Anderson’s concerns. We agree and therefore 

reverse the circuit court’s postconviction order denying Anderson’s motion and 

remand the matter for a retrospective evidentiary hearing.

BACKGROUND

¶2 On May 7, 2015, Anderson was charged with two counts of delivery 

of heroin. According to the criminal complaint, Anderson twice sold heroin to an 

undercover police officer.

¶3 On November 30, 2015, Anderson pled guilty to both counts. On 

February 16, 2016, the matter proceeded to sentencing. The State reminded the 

circuit court that its recommendation was five years of initial confinement and five 

years of extended supervision. The following exchange then occurred:

THE COURT: All right. Sir, is that your 

understanding of what the negotiations were in the case?

[Anderson]: No. Not on this matter. Man, I want 

to say my lawyer ain’t come and see me, man, and I want 

to -- He ain’t been coming to talk to me at [all]. I want to 

be honest. I pled out to something I really don’t know 

anything about, man. I want to call it -- I want to call it 

ineffective counsel, man.

THE COURT: All right. All right. The State’s 

argument as to sentencing?

 

1

 While the appellant appeals from both a judgment and an order, we address only the 

order for the reasons set forth in the opinion.
No. 2018AP2016-CR

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¶4 The circuit court did not address Anderson’s comments and 

proceeded to hear sentencing arguments. Ultimately, the court sentenced 

Anderson to three years of initial confinement and three years of extended 

supervision on the first count and a concurrent three and one-half years of initial 

confinement and three and one-half years of extended supervision on the second 

count.

¶5 Anderson filed a postconviction motion arguing that the circuit court 

“failed to exercise its discretion on his implicit request to have a new lawyer 

appointed in his case prior to being sentenced.” Anderson argued that his 

statements at sentencing constituted a substantial complaint with an inherent 

request for new counsel and that the circuit court was required to inquire about 

Anderson’s complaint. Anderson requested a hearing “at which he can present to 

the court the reasons he wanted a new lawyer.”

¶6 The postconviction court denied Anderson’s motion, finding that 

Anderson failed to make a substantial complaint that could reasonably be 

interpreted as a request for new counsel. The court found that Anderson’s 

statements at sentencing were “merely the complaints of a defendant who was 

only accusing his attorney of failing to communicate with him.” This appeal 

follows.

DISCUSSION

¶7 On appeal, Anderson raises the same issue raised in his 

postconviction motion.

¶8 “[A] circuit court’s exercise of discretion is triggered by a 

defendant’s presentation of a substantial complaint that could be interpreted as a 
No. 2018AP2016-CR

4

request for new counsel.” State v. McDowell, 2004 WI 70, ¶66, 272 Wis. 2d 488, 

681 N.W.2d 500. A defendant’s request for new counsel need not be explicit. See 

id., ¶71. “When a substantial complaint is made, the trial judge should inquire 

whether there are proper reasons for substitution.” Id., ¶66.

¶9 In evaluating whether a circuit court’s denial of a motion for 

substitution of counsel is an erroneous exercise of discretion, we must consider a 

number of factors including: “(1) the adequacy of the court’s inquiry into the 

defendant’s complaint; (2) the timeliness of the motion; and (3) whether the 

alleged conflict between the defendant and the attorney was so great that it likely 

resulted in a total lack of communication that prevented an adequate defense and 

frustrated a fair presentation of the case.” See State v. Lomax, 146 Wis. 2d 356,

359, 432 N.W.2d 89 (1988). The circuit court must make a sufficient inquiry to 

ensure “that a defendant is not cemented to a lawyer with whom full and fair 

communication is impossible.” State v. Jones, 2007 WI App 248, ¶13, 306 

Wis. 2d 340, 742 N.W.2d 341. When the circuit court fails to properly exercise its 

discretion in determining whether a request for a new attorney should be granted, 

the defendant is entitled to a retrospective evidentiary hearing in order to present 

his or her reasons for seeking new counsel. Id., ¶19.

¶10 With these standards in mind, we conclude that the circuit court 

erroneously exercised its discretion when it ignored Anderson’s statements at his 

sentencing hearing. At the beginning of the hearing, Anderson told the circuit 

court that his trial counsel was “ineffective” and “ain’t come and see me ... ain’t 

been coming to talk to me at [all].” Anderson also told the court that he did not 

understand the terms of his pleas. The circuit court brushed over the statements 

and the postconviction court found that Anderson failed to make statements 

tantamount to a request for new counsel. We conclude that Anderson’s 
No. 2018AP2016-CR

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statements, in the context in which they were spoken, were sufficient to alert the 

circuit court that Anderson had a potentially substantial complaint about his 

counsel, namely that counsel did not communicate with Anderson regarding his 

pleas and potential sentence. Anderson’s statement that counsel was “ineffective” 

could reasonably be interpreted as a request for new counsel, as it is unlikely for a 

defendant to draw “ineffective[ness]” to a court’s attention if the defendant wished 

to continue with counsel.

¶11 Once such a request is made, it is within the circuit court’s discretion 

to determine whether a proper factual basis exists for appointing new counsel. 

State v. Johnson, 50 Wis. 2d 280, 283, 184 N.W.2d 107 (1971). The court’s 

exercise of discretion “must be on an informed basis,” taking into account the 

factors articulated in Lomax. State v. Kazee, 146 Wis. 2d 366, 372, 432 N.W.2d 

93 (1988).

¶12 Here, the circuit court did not even make a “minimal inquiry” into 

Anderson’s statements. See id. Rather, the court completely ignored Anderson’s 

concerns and proceeded with sentencing as though Anderson had said nothing. 

Accordingly, none among the circuit court, the postconviction court, or this court, 

had “any way of knowing whether the request [was] justifiable, or merely an 

attempt to secure a delay or tactical advantage.” See id. The supreme court 

recognized the State’s concern that “an accused must not be permitted to 

manipulate the right of counsel to delay the orderly procedures for trials or 

interfere with the administration of justice,” id. at 372-73, and accordingly 

directed circuit courts to “balance the defendant’s right to adequate representation 

against the public interest in the prompt and efficient administration of justice.” 

Id. at 373. Neither the circuit court nor the postconviction court conducted such a 

balancing test.
No. 2018AP2016-CR

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¶13 Consequently, we must reverse the postconviction court’s order 

denying Anderson’s motion for postconviction relief without a retrospective 

evidentiary hearing and remand this matter to the circuit court with instructions to 

hold that hearing.

By the Court.—Order reversed and cause remanded with directions.

Not recommended for publication in the official reports.