State v. Klessig
564 N.W.2d 716, 211 Wis.2d 194, 1997 Wisc. LEXIS 80 (1997)
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Rule of Law:
A criminal defendant's waiver of the right to counsel is valid only if the trial court conducts an on-the-record colloquy ensuring it is knowing, intelligent, and voluntary; additionally, the trial court must make an independent, on-the-record determination that the defendant is competent to proceed pro se, applying a higher standard of competency than that required to stand trial.
Facts:
- Chad A. Klessig was charged with one count of bail jumping and one count of being a party to the crime of burglary.
- After Klessig waived his preliminary hearing, two different court-appointed attorneys were permitted to withdraw from his case with his approval.
- The state public defender's office informed Klessig that it would not appoint additional counsel but advised him he could retain his latest attorney.
- Klessig sent a letter to the court and the public defender's office stating his intention to act as his own counsel and affirming his preparedness for the scheduled jury trial.
- Klessig subsequently appeared in court without counsel, and during a brief exchange with the trial judge, stated he would like a 'standby counsel.'
- The bail jumping charge was dismissed, and Klessig proceeded to a jury trial where he represented himself on the single burglary count.
Procedural Posture:
- Chad A. Klessig was initially charged with criminal offenses in the Circuit Court for Brown County.
- The bail jumping charge against Klessig was dismissed by the Circuit Court.
- Klessig proceeded pro se to a jury trial in the Circuit Court, where he was found guilty of party to the crime of burglary and sentenced to 58 months in prison.
- Klessig appealed the judgment of conviction to the Wisconsin Court of Appeals, arguing that the Circuit Court failed to conduct a hearing on his competency to proceed pro se and on the knowing and voluntary nature of his waiver of counsel.
- The Court of Appeals rejected Klessig's arguments and affirmed his conviction.
- Klessig subsequently filed a petition for review with the Wisconsin Supreme Court.
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Issue:
Does a trial court err when it fails to conduct an on-the-record colloquy to ensure a criminal defendant's waiver of the right to counsel is knowing, intelligent, and voluntary, and also fails to make an independent, on-the-record determination of the defendant's competency to represent himself, when Wisconsin applies a higher standard for pro se competency than for competency to stand trial?
Opinions:
Majority - Jon P. Wilcox, J.
Yes, a trial court errs when it fails to conduct an on-the-record colloquy to ensure a criminal defendant's waiver of the right to counsel is knowing, intelligent, and voluntary, and also fails to make an independent, on-the-record determination of the defendant's competency to represent himself, when Wisconsin applies a higher standard for pro se competency than for competency to stand trial. The Wisconsin Supreme Court holds that a court must ensure two things when a defendant seeks to represent themselves: (1) the defendant has knowingly, intelligently, and voluntarily waived their right to counsel, and (2) the defendant is competent to proceed pro se. The court overrules Pickens v. State to the extent that it now mandates the use of an on-the-record colloquy in every case where a defendant seeks to proceed pro se. This colloquy must establish that the defendant made a deliberate choice to proceed without counsel, was aware of the difficulties and disadvantages of self-representation, understood the seriousness of the charges, and knew the general range of potential penalties. Failure to conduct such a colloquy means a reviewing court cannot find a valid waiver on the record, necessitating an evidentiary hearing where the State must prove waiver by clear and convincing evidence. Furthermore, the court reaffirms Pickens' holding that Wisconsin maintains a higher standard for competency to represent oneself than for competency to stand trial, a standard permissible under Godinez v. Moran. This higher standard is rooted in Wisconsin's public policy, recognizing that more is required to actively conduct a defense than merely assist in one. The court's determination of a defendant's competency to proceed pro se, considering factors like education, literacy, and any physical or psychological disabilities, must appear in the record. Because the circuit court in Klessig's case failed to conduct the required colloquy for waiver and did not make an on-the-record determination of his competency to represent himself, the court reverses the court of appeals. The case is remanded for evidentiary hearings to determine if Klessig knowingly, intelligently, and voluntarily waived his right to counsel, and if a meaningful retrospective (nunc pro tunc) inquiry can be conducted to assess his competency to proceed pro se. If such an inquiry is possible, the circuit court must determine if Klessig was indeed competent; if not, or if he is found incompetent, he is entitled to a new trial.
Concurring - Shirley S. Abrahamson, Chief Justice
Yes, for the reasons stated in the majority opinion, the trial court erred in failing to ensure a proper waiver of counsel and determination of competency. While joining the majority's mandate, Chief Justice Abrahamson raises a concern that Wisconsin's reaffirmed Pickens rule — which imposes a higher standard of competency for self-representation than for standing trial — may conflict with the U.S. Supreme Court's decision in Godinez v. Moran. She suggests that Godinez might imply that the competency standard for waiving counsel and for standing trial should be the same, and that applying a higher state standard for self-representation could infringe upon a defendant's federal constitutional right to self-representation established in Faretta v. California. However, she notes that this specific conflict is not squarely presented here because Klessig was allowed to represent himself. She also expresses skepticism about the practical ability of courts to conduct meaningful nunc pro tunc (retrospective) inquiries into knowing waiver and competency, citing U.S. Supreme Court cases that highlight the difficulty of such determinations, and suggests these inquiries may prove unworkable.
Analysis:
This case significantly reinforces the procedural safeguards for a criminal defendant's fundamental Sixth Amendment rights in Wisconsin. By mandating an on-the-record colloquy for waiver of counsel and affirming a distinct, higher state standard for competency to self-represent, the court places a clear affirmative duty on trial judges. This decision aims to prevent defendants from unknowingly relinquishing critical rights and ensures that only genuinely capable individuals proceed without legal representation. The concurring opinion, however, highlights a persistent tension with federal precedent regarding the unified standard for competency established in Godinez v. Moran, indicating potential future challenges to Wisconsin's higher pro se competency standard if a defendant competent to stand trial is denied the right to self-representation based on this state standard.
