COURT OF APPEALS

DECISION

DATED AND FILED

April 20, 2021

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. 2019AP2395-CR Cir. Ct. No. 2016CF1547

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

RUDY EARL MCWASHINGTON,

 DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Brown County: 

JOHN ZAKOWSKI, Judge. Affirmed. 

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

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. Rudy McWashington appeals from a 

postconviction order permitting appointed postconviction counsel to withdraw 
No. 2019AP2395-CR

2

over McWashington’s objection. We conclude the order was properly based upon 

McWashington’s forfeiture of counsel, and affirm.

BACKGROUND

¶2 McWashington was convicted of multiple drug offenses in 2017. In 

January 2018, the State Public Defender (SPD) appointed attorney 

Timothy O’Connell to represent McWashington in postconviction proceedings and 

on appeal. About one year later, O’Connell moved to withdraw as counsel for 

McWashington. O’Connell alleged that he had identified one or more potential 

appellate issues with arguable merit, but that McWashington wanted O’Connell to 

raise additional issues that O’Connell deemed frivolous. As a result, O’Connell 

felt that he could not ethically proceed. 

¶3 In accordance with WIS. STAT. RULE 809.30(4)(b) (2019-20),

1

the

SPD advised the circuit court that it would not appoint successor counsel in the 

event that the court granted O’Connell’s motion to withdraw. The SPD noted that 

the no-merit procedure was unavailable because counsel had identified one or 

more issues of arguable merit. Therefore, in the SPD’s view, McWashington’s 

options were to proceed with O’Connell on the issue(s) O’Connell deemed 

arguably meritorious, or to proceed without appointed counsel on those issues and 

others that O’Connell had deemed frivolous. 

¶4 McWashington objected to O’Connell’s withdrawal motion, 

accusing him of “attempting to sabotage [his] appeal.” McWashington asked the 

 

1

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.
No. 2019AP2395-CR

3

circuit court to order O’Connell to raise the issues McWashington had discussed 

with him or to file a no-merit report. 

¶5 At a hearing on the withdrawal motion, O’Connell clarified that he 

believed his ethical dilemma was that he could not raise an issue he believed to be 

frivolous, but if he filed a motion without raising the issues McWashington 

wanted to raise, those issues would be forfeited against his client’s expressed 

desire. Throughout the hearing, everyone referred to potential issues generically, 

as A, B, or C, without discussing the merits of the actual issues in dispute. The 

circuit court advised McWashington that the SPD would not appoint successor 

counsel (although the court noted it “want[ed McWashington] to have counsel”)

and a no-merit report could not be filed, so McWashington had to “choose 

between representation or presenting the full case as [he saw] it.” McWashington 

refused to voluntarily waive his right to counsel, but he also refused to agree that 

his counsel could file a postconviction motion without raising all the issues 

McWashington believed should be raised. 

¶6 The circuit court subsequently granted O’Connell’s motion to 

withdraw. It observed that O’Connell was “between a rock and a hard place”; that 

McWashington was entitled to his “day in court” on all of the issues he believed to 

be important; that McWashington was “an intelligent individual” capable of

raising issues on his own; and that the court needed “to move this thing forward.”

The court then advised McWashington of the difficulty of proceeding pro se, but it 

made no determination that McWashington had either waived or forfeited his right 

to postconviction and appellate counsel. 

¶7 McWashington now appeals. He asserts that the circuit court’s 

decision to allow O’Connell to withdraw without either appointing successor 
No. 2019AP2395-CR

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counsel or making a determination that an appeal would be frivolous deprived 

McWashington of his right to appellate counsel.

DISCUSSION

¶8 The Sixth Amendment to the United States Constitution guarantees 

the defendant in a criminal action the right to counsel. See Gideon v. Wainright, 

372 U.S. 335, 339-40 (1963). That right extends to the appointment of counsel for 

an indigent defendant at public expense on direct appeal. State v. Thornton, 

WI App 294, ¶12, 259 Wis. 2d 157, 656 N.W.2d 45. The right to counsel does 

not, however, encompass the right to an attorney of one’s choice, or the right to 

insist that particular issues be raised. State v. Evans, 2004 WI 84, ¶30, 273 

Wis. 2d 192, 682 N.W.2d 784, abrogated on other grounds by State ex rel. 

Coleman v. McCaughtry, 2006 WI 49, ¶29, 290 Wis. 2d 352, 714 N.W.2d 900. In 

addition, the right to counsel may be relinquished either by an affirmative waiver

or by operation of law resulting from the defendant’s deliberate actions. State v. 

Cummings, 199 Wis. 2d 721, 756, 546 N.W.2d 406 (1996). We will 

independently determine as a question of law whether a set of facts establishes a 

defendant has been deprived of his or her constitutional right to counsel. Id. at

748.

¶9 There is no suggestion that McWashington affirmatively waived his 

right to counsel in this case. See generally State v. Klessig, 211 Wis. 2d 194, 206, 

564 N.W.2d 716 (1997) (discussing requirements for a valid waiver of counsel). 

The issue before us is whether McWashington forfeited that right by refusing to 

choose one of the only two viable options presented to him.
No. 2019AP2395-CR

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¶10 Forfeiture of the right to counsel arises when a defendant’s actions 

are frustrating the “orderly and efficient progression of the case.” State v. 

Suriano, 2017 WI 42, ¶24, 374 Wis. 2d 683, 893 N.W.2d 543 (citation 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[;] and 

(4) physical or verbal abuse directed at counsel or the court. 

Id. (citation omitted).

¶11 Here, the circuit court made no explicit determination that 

McWashington had forfeited his right to counsel. We agree with the State, 

however, that the determination was implicit in the court’s decision to permit 

counsel to withdraw without appointing successor counsel. This decision was 

made after the court provided McWashington with multiple opportunities to 

choose whether to proceed with his appointed counsel on only those issues 

O’Connell deemed arguably meritorious, or to proceed pro se in order to raise 

additional issues that O’Connell had deemed frivolous and refused to raise.

¶12 McWashington argues that the circuit court should have refused to 

allow counsel to withdraw because the record demonstrates that McWashington 

did not fully understand his options. In particular, despite the information 

provided by the SPD, McWashington asserts that he was operating under the 

mistaken belief that he was at least entitled to a no-merit report, and he did not 

understand that he potentially could make a subsequent claim of ineffective 

assistance of counsel if it turned out that O’Connell had incorrectly evaluated the 

merits of the issues McWashington wanted to raise. There is no requirement that a 
No. 2019AP2395-CR

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forfeiture be knowingly made, however, and no specific procedure that a court 

must undertake before making a forfeiture determination.

¶13 Under prior case law, a circuit court was obligated to provide a 

defendant with a specific warning that the right to counsel would be forfeited if the 

defendant were to persist in specific conduct, and to ensure the defendant was 

aware of the difficulties of self-representation and was competent to represent 

him- or herself before making a clear forfeiture ruling on the record supported by 

specific factual findings. See State v. Coleman, 2002 WI App 100, ¶¶22, 24, 253 

Wis. 2d 693, 644 N.W.2d 283, overruled by Suriano, 374 Wis. 2d 683, ¶¶32-33. 

Such requirements, however, were expressly overruled by Suriano. Suriano, 372 

Wis. 2d 683, ¶¶32-33. Under Suriano, forfeiture of the right to counsel “occurs 

by operation of law without the need to ensure a defendant knows he [or she] is 

losing [the] right and regardless of whether he [or she] intends to do so.” Id., ¶33. 

Therefore, it is irrelevant to our analysis whether McWashington’s actions were 

based upon a misunderstanding of the law. Our focus is on whether the result of 

McWashington’s voluntary and deliberate actions—whatever their intent—was to 

frustrate the orderly and efficient progression of the case.

¶14 The statutory procedure for appeals in Wisconsin “requires that a 

defendant make an election to proceed with a state public defender, retain counsel 

or undertake the appeal pro se.” State v. Redmond, 203 Wis. 2d 13, 19, 552 

N.W.2d 115 (Ct. App. 1996). McWashington concedes that he “did not explicitly 

agree with either option” that was presented to him. McWashington’s repeated 

refusal to either authorize O’Connell to file a postconviction motion limited to the 

issues O’Connell believed to be meritorious or to discharge counsel and proceed 

pro se, left the case at a standstill. There were no other viable options for the case 

to proceed.
No. 2019AP2395-CR

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¶15 McWashington had no right to insist that counsel raise specific 

issues and no right to “hybrid” representation in which O’Connell could file an 

appeal raising some issues and McWashington could raise additional issues pro se. 

See State v. Debra A.E., 188 Wis. 2d 111, 138, 523 N.W.2d 727 (1994). As an 

officer of the court, O’Connell could not raise an issue that McWashington 

requested if O’Connell believed it to be frivolous. Further, as the SPD correctly 

informed the circuit court, O’Connell could not file a no-merit report because he 

could not certify that an appeal would be frivolous when he had identified one or 

more arguably meritorious issues. See WIS. STAT. RULE 809.32(1)(a). In sum, 

McWashington’s deliberate and repeated refusal to make a choice from his 

available options frustrated the progression of the case. Therefore, the court 

properly treated his refusal as a forfeiture of counsel.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.