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,

 v.

Richard H. Harrison,

 Defendant-Appellant.

FILED

JAN 22, 2015

Diane M. Fremgen

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unpublished court of appeals opinion and order reversing the 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1 State v. Harrison, No. 2013AP298-CR, unpublished slip op.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

2

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).
No. 2013AP298-CR

3

¶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 
No. 2013AP298-CR

4

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 
No. 2013AP298-CR

5

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.
No. 2013AP298-CR

6

¶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."
No. 2013AP298-CR

7

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.
No. 2013AP298-CR

8

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).
No. 2013AP298-CR

9

¶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 postconviction 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).
No. 2013AP298-CR

10

¶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).
No. 2013AP298-CR

11

¶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).
No. 2013AP298-CR

12

(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 
No. 2013AP298-CR

13

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 
No. 2013AP298-CR

14

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. 
No. 2013AP298-CR

15

¶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 
No. 2013AP298-CR

16

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)
No. 2013AP298-CR

17

"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.
No. 2013AP298-CR

18

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.
No. 2013AP298-CR

19

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 commonlaw 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. 
No. 2013AP298-CR

20

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)
No. 2013AP298-CR

21

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).
No. 2013AP298-CR

22

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.
No. 2013AP298-CR

23

¶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. 
No. 2013AP298-CR

24

¶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.
No. 2013AP298-CR

25

¶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).
No. 2013AP298-CR

26

"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).
No. 2013AP298-CR

27

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 
No. 2013AP298-CR

28

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).).
No. 2013AP298-CR

29

¶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 
No. 2013AP298-CR

30

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.
No. 2013AP298-CR

1