State v. Joseph P. DeFilippo

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 9, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1248-CR Cir. Ct. No. 2019CF169

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOSEPH P. DEFILIPPO,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Outagamie
County: MARK J. McGINNIS, Judge. Affirmed.

Before Stark, P.J., Hruz and Donald, 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. Joseph DeFilippo appeals from a judgment,
entered after a jury trial, convicting him of several offenses arising out of a
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domestic violence incident, and a subsequent incident with his neighbor.
DeFilippo argues that he did not properly waive his right to counsel before trial
and that the circuit court erred by denying his request—first made after jury
selection—to obtain counsel. We conclude that DeFilippo waived his right to
counsel before trial and that he later forfeited his right to counsel through his
manipulative and disruptive conduct. Accordingly, we affirm.

BACKGROUND

¶2 In March 2019, the State charged DeFilippo with one count of false
imprisonment as an act of domestic abuse; one count of misdemeanor battery as an
act of domestic abuse; three counts of disorderly conduct, with two of those counts
being acts of domestic abuse; and one count of misdemeanor bail jumping. The
four charges involving domestic abuse stemmed from an incident where
DeFilippo, among other things, held down his former roommate, slapped her face,
and held his forearm over her throat as she attempted to move her belongings out
of DeFilippo’s home. The two remaining charges arose out of disturbing and
profane statements that DeFilippo made to his neighbor while DeFilippo was out
on bond.

¶3 At his initial appearance, DeFilippo told the court commissioner that
he did not want time to speak to an attorney. DeFilippo later conceded that he did
not “know the laws as well as you guys,” but he stated he “like[s] to do research
on this kind of stuff” and he read “the prosecutor’s hand book … over and over.”
DeFilippo also told the court commissioner, “I’ve been in court here. I get traffic
tickets all the time. I’m not—I’m not perfect, but I’ve never missed a court date in
my life, ever, and I’ve had several of them. I’m defending myself.” In addition,
DeFilippo mentioned that he “ha[d] professional licenses.”

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¶4 One week later, DeFilippo appeared at his preliminary hearing, again
without counsel.1 At the beginning of the hearing, the circuit court confirmed that
DeFilippo understood his right to counsel, the process for obtaining counsel at no
cost or at a reduced rate, and the benefits of having counsel. DeFilippo then
confirmed that he did not want to “explore the option of having an attorney” and
that no one had made any threats or promises to cause him to waive his right to an
attorney. At the end of the hearing, the court bound DeFilippo over for trial and
again informed him about the benefits of counsel and the process for obtaining
counsel. The court asked DeFilippo if he wanted an attorney going forward, to
which DeFilippo responded: “I don’t qualify for a public defender …. And I
refuse to pay a penny to any other type of lawyer because there is not going to be
any negotiations, I’m going to be found not guilty ….”

¶5 The circuit court subsequently held an arraignment. The court began
the hearing by questioning DeFilippo about whether he understood that he had a
constitutional right to counsel; whether he understood the potential advantages of
having counsel; whether he understood that counsel could be appointed for him if
he could not afford counsel; and whether he was “making [the] decision [to waive
counsel] freely, voluntarily, and intelligently.” DeFilippo responded affirmatively
to each of these questions. DeFilippo then waived his right to have the
Information read to him, stating that he had read through it and understood it.
Later in the hearing, DeFilippo informed the court that he had professional
licenses in both Wisconsin and Illinois to serve as a “mortgage loan originator.”

1
The Honorable Gregory B. Gill, Jr., presided over the preliminary hearing. The
Honorable Mark J. McGinnis presided over all of the remaining circuit court proceedings.

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DeFilippo acknowledged, however, that he had been unemployed for a couple
years because of his depression.

¶6 One week before trial, the circuit court held a pretrial conference.
The court started the hearing by noting that court staff had received a “very rude,
loud, abrasive, obnoxious, [and] disrespectful” phone call from DeFilippo the
prior week. The court explained that it was addressing the issue because it wanted
to make its expectations clear, to ensure that it did not happen again, and to ensure
that DeFilippo “[does not] conduct [himself] like that here in this courtroom.”

¶7 The circuit court proceeded to address the State’s motions in limine.
During a discussion of the State’s first motion, DeFilippo objected to the State
calling any witnesses at trial because the State had filed its witness list one day
after the deadline previously set by the court—a deadline which was two weeks
before the pretrial conference. When questioned by the court, DeFilippo claimed
he had been harmed by the one-day delay because he “did not have time to
prepare” and he did not expect the investigating police officers or his former
roommate—the victim of several of DeFilippo’s offenses—to testify at trial. The
court found that DeFilippo was being “unreasonable” and that his expectations
regarding the witnesses were “extremely unreasonable especially with how
intelligent [he] seem[ed] to be and as much as [he] portray[ed himself] as being on
top of this case.”

¶8 Midway through the hearing, DeFilippo said he wanted to call “a
couple witnesses” at trial—despite previously stating he would not call any—but
he resisted the circuit court’s attempts to identify those witnesses. The court
warned DeFilippo:

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I have expectations on what happens and I expect both
sides to follow them; and if you deviate, there’s going to be
a consequence.

I prefer not to give you that consequence in front of the
jury. Part of that means listen to what I ask and answer it.
If we are in front of the jury and we start doing this, you are
not going to look good. You are going to look like a jerk.
You are arguing with a judge. You are being disrespectful.
You are looking down. You are making facial expressions
as if this is some joke.

The court then told DeFilippo that if there was a possibility he would call
witnesses at trial, he needed to identify those witnesses immediately. The court
clarified that DeFilippo would not be required to call any witnesses that he
identified. DeFilippo responded that he did not have any witnesses. At the end of
the hearing, the court reminded the parties several times that they would meet at
8:00 a.m. on the first day of trial.

¶9 Despite the reminder, DeFilippo arrived twenty-seven minutes late
to trial. Shortly after DeFilippo arrived, the circuit court proceeded with voir dire
and, in the course of doing so, instructed the jury that

Mr. De[F]ilippo has made the decision to represent himself
in this case. So every defendant in a criminal case has a
constitutional right to have a lawyer. Mr. De[F]ilippo and I
have met on several occasions; and I have had colloquies
with him, conversations with him. And I have reached a
determination that he is making a decision freely,
voluntarily, intelligently to waive his right to have a lawyer
and represent himself in this case.

Mr. De[F]ilippo is making that decision. That’s what he
wants to do, and I find that he’s competent and has made
that decision based on those grounds. So he’s allowed to
do that in this case.

¶10 After the jury was selected and exited the courtroom, the circuit
court addressed DeFilippo’s late arrival. The court noted that it “had some

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contentious pretrial conferences” with DeFilippo and that DeFilippo’s tardiness
was “not acceptable.” DeFilippo denied that he was late, stating “[e]verything
says 8:30 online” and “[s]how me where it says I am going to be here at 8:00.”
The court warned DeFilippo not to “raise [his] voice.” DeFilippo responded that
he was standing up for himself and that he was “ready to do one thing really quick;
but we will see, you know?” DeFilippo declined to explain what he meant by the
comment, and the court noted that DeFilippo’s comment seemed to be a potential
threat.

¶11 The circuit court told DeFilippo that it “want[ed him] to have a fair
trial,” but it thought DeFilippo was “intentionally violating court orders.”
DeFilippo maintained that “[he] was never told to be [in court] at 8:00.” The court
characterized DeFilippo’s comments as “outrageous.” It noted that DeFilippo had
been informed of the 8:00 a.m. start time in writing and several times orally during
the pretrial conference.

¶12 The circuit court then addressed the admissibility of evidence that
DeFilippo had provided to the State at the beginning of jury selection, deeming
some of it admissible and some of it inadmissible. The court asked DeFilippo if
he understood “what’s going to be allowed in,” to which DeFilippo said,
“Everything is going to be allowed in.” The court responded, “Okay. That’s not
responsive so I have now said what’s going to come in on that, and I expect you to
follow those rules.”

¶13 As the circuit court asked for the jury to be brought back into the
courtroom, the following exchange between the court and DeFilippo occurred:

THE DEFENDANT: Hold on, your Honor, for a second. I
am going to respectfully ask you to recuse yourself from

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this case for past statements made. I am not going to go
forward today.

THE COURT: That motion is denied. Bring the jury in.

THE DEFENDANT: Okay. Well, I wanted an attorney.
You never gave me a colloquy today. I am not going to go
forward with the trial.

THE COURT: Hold on one second.

THE DEFENDANT: You can’t force me to. I want an
attorney. You can’t force me to go forward. You didn’t
give me a pretrial this morning. I’m not going to even say
another word. I invoke my Sixth Amendment right.

Upon further questioning by the court, DeFilippo admitted that this instance was
the first time he had ever expressed a desire to obtain counsel and that he had
made no effort to obtain counsel before trial. The State encouraged the court to
deny DeFilippo’s request, noting that the jury had already been selected and that
DeFilippo had previously stated his desire to represent himself.

¶14 The circuit court asked DeFilippo if he wanted to state anything else
for the record before the jury returned and the trial began. DeFilippo responded
that he did not want to go forward with the trial and that he “only invoked [his]
right today because [he] fe[lt] like … [he was] being treated unfairly in the context
of procedure.” The court took a brief recess before addressing DeFilippo’s request
for counsel.

¶15 Upon returning, the circuit court stated that it had anticipated—
based on DeFilippo’s prior conduct and demeanor in court—that DeFilippo
“would do things intentionally and purposely to disrupt the trial and to prevent it
from going smoothly.” The court found DeFilippo’s comments about not being
informed of the correct start time to be “untruthful” and stated “they reflect a
deliberate, intentional, purposeful misinformation to the [c]ourt.” The court also

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found that DeFilippo’s comments were “an effort … to stall, [and] to interfere
with the administration of justice.”

¶16 The circuit court recognized that DeFilippo had repeatedly waived
his right to counsel by stating on the record that he did not want an attorney and
that he was going to represent himself. The court noted that DeFilippo “had a
colloquy with the court commissioner, with Judge Gill, and with [the court]; and
on each and every one of those occasions [he was] found to be freely, voluntarily,
and intelligently waiving [his] right to counsel.” The court also found that
DeFilippo’s sudden decision to request counsel was “disingenuous”;
“manipulative”; and “primarily done with a direct effort to interfere with this case,
the processing of the case, and the administration of justice.” Citing State v.
Suriano, 2017 WI 42, 374 Wis. 2d 683, 893 N.W.2d 543, the court concluded that
DeFilippo had forfeited his right to counsel through his “disruptive conduct,” his
“intent to delay,” and the untimeliness of his request for counsel.

¶17 As the circuit court finished its remarks, the State informed the court
that DeFilippo had mentioned, during the prior recess, that he was “going to cause
a mistrial.” The court immediately asked DeFilippo if he had made such a
comment. Although DeFilippo initially resisted the court’s questioning, he
eventually answered: “Yes, because I don’t know how else. I don’t want to
continue, your Honor.” The court recognized that DeFilippo’s comment to the
prosecutor “clearly shows [his] intention … today.”

¶18 The circuit court then brought the jury back into the courtroom and
continued with the trial. DeFilippo was disruptive throughout the trial, and the
court found him in contempt four separate times. The jury ultimately found
DeFilippo guilty on all counts. At DeFilippo’s request, the court appointed

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counsel to represent him at sentencing. The court later imposed a prison sentence
and withheld sentence on some of the charges.

¶19 DeFilippo now appeals, arguing that his waiver of counsel was
insufficient because the circuit court never found him competent to proceed pro se
and that the court erred by denying his request for counsel after jury selection had
occurred. Additional facts will be provided as necessary below.

DISCUSSION

I. Waiver of the right to counsel

¶20 Both the Sixth Amendment to the United States Constitution and
article I, section 7 of the Wisconsin Constitution guarantee a criminal defendant
the right to the assistance of counsel. State v. Klessig, 211 Wis. 2d 194, 201-02,
564 N.W.2d 716 (1997). However, a defendant also has the constitutional right to
self-representation. Id. at 203. Wisconsin courts “have often recognized the
apparent tension between these two constitutional rights.” State v. Imani, 2010
WI 66, ¶21, 326 Wis. 2d 179, 786 N.W.2d 40.

¶21 A circuit court must permit a defendant to represent him- or herself
if the court finds that the defendant: (1) has knowingly, intelligently and
voluntarily waived the right to counsel; and (2) is competent to proceed pro se. Id.
In determining whether a defendant has knowingly, intelligently and voluntarily
waived the right to counsel, the court must conduct a colloquy designed to ensure
that the defendant:

(1) made a deliberate choice to proceed without counsel,
(2) was aware of the difficulties and disadvantages of
self-representation, (3) was aware of the seriousness of the
charge or charges against him, and (4) was aware of the

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

Id., ¶23 (citation omitted). Whether a defendant has knowingly, intelligently and
voluntarily waived the right to counsel is a question of constitutional fact. State v.
Ruszkiewicz, 2000 WI App 125, ¶27, 237 Wis. 2d 441, 613 N.W.2d 893. In
resolving a question of constitutional fact, we review the circuit court’s findings of
historical and evidentiary facts under a clearly erroneous standard, but we
independently apply constitutional principles to those facts to determine whether a
constitutional right was violated. Suriano, 374 Wis. 2d 683, ¶20.

¶22 In deciding whether a defendant is competent to proceed pro se, a
circuit court “should consider factors such as ‘the defendant’s education, literacy,
fluency in English, and any physical or psychological disability which may
significantly affect his ability to communicate a possible defense to the jury.’”
Klessig, 211 Wis. 2d at 212 (citation omitted). The competency determination,
however, “should not prevent persons of average ability and intelligence from
representing themselves unless ‘a specific problem or disability can be identified
which may prevent a meaningful defense from being offered, should one exist.’”
Id. (citation omitted).

¶23 Generally, a circuit court’s finding that a defendant is competent to
proceed pro se must appear in the record. Id. at 212-14. A court’s competency
finding will be upheld “unless totally unsupported by the facts apparent in the
record.” Ruszkiewicz, 237 Wis. 2d 441, ¶38 (citation omitted). If the court fails to
make an explicit competency finding, an appellate court may remand for the
circuit court to determine whether “it can make an adequate and meaningful nunc
pro tunc inquiry into … whether [the defendant] was competent to proceed
pro se.” Klessig, 211 Wis. 2d at 213. However, “such an evidentiary hearing may

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not be necessary in every case” where the defendant’s competency is clear from
the record. Id. at 214 n.9.

¶24 DeFilippo argues that “[t]here was no finding by any judicial official
that [he] was competent to represent himself” and that the circuit court failed to
consider the competency factors on the record. He also contends that we should
remand for the court to consider the issue of competency because the record is
insufficient to conclude that he was competent to represent himself. DeFilippo
also asserts, for the first time in his reply brief, that his outbursts at trial suggest
that he “had a personality disorder or emotional problems that prevented him from
being competent to represent himself.”

¶25 Contrary to DeFilippo’s arguments, the circuit court explicitly found
that DeFilippo was competent to represent himself. During voir dire, the court
told the jury that DeFilippo wanted to represent himself, that he freely, voluntarily
and intelligently waived his right to counsel, and that “he’s competent.”
(Emphasis added.) The court made this competency finding before the jury was
selected and before DeFilippo ever challenged his waiver of counsel.

¶26 The circuit court could rationally make such a competency finding
based on the facts in the record. DeFilippo informed the court at his arraignment
that he had professional licenses in Wisconsin and Illinois as a mortgage loan
originator. In addition, DeFilippo’s pretrial interactions with the court show that
he was fluent in English and had some familiarity with the law. Indeed, DeFilippo
stated at his arraignment that he was charged “with a felony and five
misdemeanors,” that the pending charges could affect his ability to obtain
employment, and that he had reviewed “a hundred cases” regarding the timeliness
of charging decisions. DeFilippo also sought to exclude witnesses—albeit

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unsuccessfully—by challenging the State’s failure to comply with the court’s
disclosure deadline and by citing a portion of the Wisconsin Statutes. From these
interactions, the court could find that DeFilippo possessed the “average ability and
intelligence” needed to competently represent himself. See id. at 212.

¶27 Further, the record clearly establishes DeFilippo’s competency to
represent himself. See id. at 214 n.9. Again, DeFilippo’s pretrial interactions with
the circuit court suggested that he had some level of education as a mortgage loan
originator, that he spoke English fluently, and that he had some familiarity with
the law. The presentence investigation report (PSI) also reveals that DeFilippo
obtained a bachelor’s degree from a four-year university as well as some
additional schooling at technical colleges. The PSI author noted that DeFilippo “is
able to comprehend written and verbal communication and had no difficulties
completing the [PSI] questionnaire.”

¶28 Despite DeFilippo’s suggestion in his reply brief that his outbursts at
trial might indicate he has “a personality disorder or emotional problems,” he
never directly argues that he was incompetent to proceed pro se. He also fails to
explain how any personality disorder or emotional problems might have prevented
him from providing a meaningful defense. Accordingly, DeFilippo’s argument
regarding his mental and emotional health is undeveloped and need not be further
addressed. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633
(Ct. App. 1992); see also A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475,
492, 588 N.W.2d 285 (Ct. App. 1998) (recognizing that a party is not permitted to
raise an issue for the first time in its reply brief).

¶29 Finally, although DeFilippo does not directly challenge the circuit
court’s determination that he knowingly, intelligently and voluntarily waived his

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right to counsel, we note that the court conducted a sufficient colloquy to make
that decision. During the preliminary hearing, the court conducted a colloquy
ensuring DeFilippo knew that he had a right to counsel, the benefits of counsel,
and the possibility of having counsel appointed. The court also ensured that
DeFilippo wanted to go forward by representing himself. At the arraignment, the
court again engaged DeFilippo in a colloquy regarding his right to counsel, asking
whether DeFilippo understood that right, the benefits of counsel, and the
possibility of having counsel appointed. After discussing this information,
DeFilippo confirmed that he wanted to represent himself. Shortly thereafter, the
court confirmed that DeFilippo had read and understood the Information, which
contained the charges and the possible penalties for those charges. Under these
circumstances, the court’s colloquy was sufficient to ensure that DeFilippo
knowingly, intelligently and voluntarily waived his right to counsel.

II. Forfeiture of the right to counsel

¶30 DeFilippo next argues that the circuit court erred by failing to
adjourn the trial upon his request for counsel after jury selection had occurred. He
renews his claim that the court never found him competent to proceed pro se, and
he faults the court for not inquiring further into DeFilippo’s competency as the
proceedings progressed. He also criticizes the court for not warning him that an
untimely request for counsel would result in his forfeiture of counsel.

¶31 Absent a voluntary waiver of counsel, a defendant may involuntarily
lose his or her right to counsel through conduct constituting a forfeiture of that
right. Suriano, 374 Wis. 2d 683, ¶¶22, 24. A defendant may forfeit the right to
counsel if the circuit court “becomes convinced” that the defendant’s conduct is
frustrating “the orderly and efficient progression of the case.” Id., ¶24 (citation

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omitted). As relevant here, forfeiture can occur due to the
defendant’s: (1) manipulative and disruptive behavior; (2) defiant attitude and
repeated choices that result in delay; or (3) physical or verbal abuse directed at
counsel or the court. Id. Whether a defendant has forfeited his or her right to
counsel is a question of constitutional fact. Id., ¶20.

¶32 Here, the circuit court found that DeFilippo’s decision to request
counsel was disingenuous and primarily done with a direct effort to interfere with
the processing of his case and the administration of justice. The court also found
that DeFilippo was manipulative in his handling of the case and that he had been
disruptive. These findings are not clearly erroneous. Throughout the pretrial
proceedings, the record demonstrates that DeFilippo used sarcasm, raised his
voice, interrupted and spoke over the court, provided nonresponsive answers to the
court’s questions, made disrespectful gestures and facial expressions, made
remarks that could be perceived as threats, gave the State evidence at the last
minute just before jury selection, and continuously argued issues that the court had
already decided.2 In addition, DeFilippo arrived approximately twenty-seven
minutes late to his jury trial, despite being informed both verbally and in writing
of the correct start time.

¶33 The circumstances surrounding DeFilippo’s request for counsel also
support the circuit court’s findings. Throughout the pretrial proceedings,

2
DeFilippo argues in his reply brief that the State’s forfeiture argument improperly relies
on his disruptive conduct that occurred after the circuit court determined that he forfeited his right
to counsel. Even if we only consider DeFilippo’s conduct before the court’s forfeiture decision,
that conduct still supports the court’s finding that DeFilippo was manipulative, disruptive, and
sought to delay the trial. Accordingly, we limit our discussion to only DeFilippo’s disruptive
conduct before the court’s decision.

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DeFilippo unequivocally maintained that he did not want the assistance of counsel,
and he never expressed any desire to obtain counsel. Even when DeFilippo grew
frustrated with the court’s decisions, DeFilippo first requested that
Judge McGinnis recuse himself from the case. Only after Judge McGinnis denied
that request did DeFilippo request an attorney. In doing so, he also repeatedly
stated that the court could not make him proceed with the trial. Then, when the
court took a short recess, DeFilippo told the prosecutor that he intended to cause a
mistrial if he were required to proceed. The court could reasonably find from
these facts that DeFilippo was invoking his right to counsel in order to delay and
disrupt the trial.

¶34 We agree with the circuit court’s conclusion that DeFilippo forfeited
his right to counsel through his conduct. DeFilippo’s handling of the case and his
request for counsel were manipulative and disruptive and frustrated “the orderly
and efficient progression of the case.” See id., ¶24.

¶35 DeFilippo’s arguments to the contrary are misplaced. As already
discussed, the circuit court found DeFilippo competent to proceed pro se. In
addition, even if DeFilippo’s conduct in the pretrial proceedings could have
suggested that he was not competent to represent himself, the court could still
reasonably find that DeFilippo was competent based on his education and
communication skills. In fact, the court did find DeFilippo competent after the
pretrial proceedings because the court stated during voir dire that it had met with
DeFilippo “on several occasions” and “[found] that he’s competent.”

¶36 Despite DeFilippo’s criticism that the circuit court did not warn him
that he might lose his right to counsel based upon his conduct, a court is not
required to give a warning before concluding that the defendant forfeited the right

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to counsel. See id., ¶33. Indeed, such a requirement would be difficult in a
situation, such as here, where the defendant repeatedly told the court that he did
not want an attorney before abruptly refusing to go forward with a trial without an
attorney. In addition, the court repeatedly warned DeFilippo that his improper
behavior would be sanctioned. The court’s failure to earlier warn DeFilippo that
he could forfeit his right to counsel did not preclude it from applying forfeiture in
this case.

¶37 Finally, DeFilippo suggests that forfeiture can be applied only in
circumstances where the defendant has repeatedly discharged his or her attorney.
We reject this argument for several reasons. First, DeFilippo cites no legal
authority supporting such a narrow application of forfeiture to the right of counsel.
See Pettit, 171 Wis. 2d at 646-47. Second, regardless of whatever distinction
might exist between DeFilippo’s conduct and a defendant who repeatedly
discharges his or her attorney, the essence of that conduct is still the same: the
defendant’s abuse of the right to counsel has frustrated the orderly and efficient
progression of the case. See Suriano, 374 Wis. 2d 683, ¶24.

¶38 Moreover, in a factually similar case, our supreme court upheld a
circuit court’s decision not to adjourn a trial in order to allow the defendant to
obtain counsel. See Pickens v. State, 96 Wis. 2d 549, 571-72, 292 N.W.2d 601
(1980), overruled on other grounds by Klessig, 211 Wis. 2d at 206. In Pickens,
the defendant waived his right to counsel but then attempted to withdraw that
waiver on the second day of trial. Id. at 571. The supreme court recognized that
“the right to counsel cannot be manipulated by a defendant as a tool for
obstruction.” Id. at 572. Although the court never discussed “forfeiture,” the
court noted that the defendant had previously “manipulated his right to counsel” to
delay trial and that granting the defendant’s request for counsel would have

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resulted in further delay. Id. The court concluded that “[h]aving validly waived
his right to counsel and elected to proceed pro se, the defendant was not entitled to
obtain new representation once his trial was in progress.” Id.

¶39 Like the court in Pickens, we conclude that DeFilippo was not
entitled to obtain representation after he waived his right to counsel and his trial
began. His manipulative and disruptive conduct establishes that he forfeited his
right to counsel when he attempted to withdraw his prior waiver of counsel.3

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).

3
DeFilippo initially addressed whether the circuit court’s decision not to adjourn the trial
was an erroneous exercise of discretion, but he did not address the forfeiture of counsel issue until
his reply brief. DeFilippo clarifies in his reply brief that if we reject the State’s forfeiture
argument, then we should conclude that the court erroneously exercised its discretion by denying
the adjournment. Accordingly, we need not address whether the court erroneously exercised its
discretion because we agree with the State that DeFilippo forfeited his right to counsel.
Regardless, the court did not erroneously exercise its discretion by denying the adjournment
because it applied the correct law to the facts of record and reached a reasonable result. See
Zarnstorff v. Neenah Creek Custom Trucking, 2010 WI App 147, ¶44, 330 Wis. 2d 174, 792
N.W.2d 594.

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