State v. Ekblad

• Decision Date: 02 July 2002
• Docket Number: 01-2816
• Citation: 650 N.W.2d 559,257 Wis. 2d 621
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Paul I. Ekblad, Defendant-Appellant. AppealSTATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III DATED AND FILED
• Court: Wisconsin Court of Appeals

State of Wisconsin, Plaintiff-Respondent v Paul I. Ekblad, Defendant-Appellant

Appeal No. 01-2816

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

DATED AND FILED July 2, 2002

APPEAL from a judgment and an order of the circuit court for Burnett County: ROBERT RASMUSSEN, Judge. Affirmed. Cir. Ct. No. 94-CF-44

Before Cane, C.J., Hoover, P.J., and Peterson, J.

1. PER CURIAM.

Paul Ekblad appeals a judgment convicting him of fifteen counts of criminal slander of title, contrary to Wis. Stat. 943.60,¹ and an order denying his motion for postconviction relief. Ekblad argues that we should vacate his judgment of conviction because (1) he was denied his right to counsel, (2) he was not indicted by a grand jury, (3) 943.60 does not have the required enacting clause, (4) the court lacked personal jurisdiction because he is a sovereign and the court is a corporation, and (5) he is not a "person" under 943.60. We conclude that Ekblad forfeited his right to counsel by his actions. We also reject Ekblad's other arguments and affirm the judgment and order.

Background

2. In 1990, the county board of supervisors seized Ekblad's farm after a tax dispute. In retaliation, Ekblad filed commercial liens against property owned by board members. He was arrested in 1994 for criminal slander of title.

3. Ekblad appeared without counsel at his initial appearance. The trial court informed Ekblad that he had a Sixth Amendment right to counsel and that counsel could help him. It told him that there would be no preliminary hearing that day if Ekblad wanted to contact an attorney.² Ekblad agreed that he should have counsel after expressing concern whether any attorney would be "competent" to handle his case. The court advised Ekblad that the right to counsel was so important that it outweighed the inconvenience to the State of not having the preliminary hearing that day. However, it warned Ekblad that he should not "play any games" with that right.

4. A public defender represented Ekblad at the preliminary hearing. Ekblad notified the court several days later that he was discharging the public defender because he was dissatisfied with the representation. The court approved the withdrawal.

5. The public defender then appointed another attorney to represent Ekblad. Ekblad filed a demand for counsel of choice and wrote the court stating that the attorney was not his attorney and that he had been denied his attorney of choice. The appointed counsel filed a motion to withdraw. The court granted the motion to withdraw at a pretrial hearing the day before the scheduled jury trial. The attorney expressed that he did not have the expertise to handle the constitutional issues Ekblad insisted on raising, and Ekblad told the court that he did not want the attorney to represent him if the attorney did not feel he was competent.

6. Later in the hearing, Ekblad demanded his counsel of choice. He asked that Pat Coughlin, who is not a licensed attorney, be allowed to represent him. The trial court rejected the motion, saying:

Your motion is denied, Mr. Ekblad. I specifically find that you have been afforded an opportunity to have legal counsel, either legal counsel of your own choosing or representation through the public defender's office. You have consistently not availed yourself of the opportunity to go out and hire your own attorney. You have rejected two attorneys provided to you through the public defender system.

Counsel of your choice does not mean that you can have any person you might want speaking for you in a court of law. Mr. ... Coughlin is not an attorney.

The court also addressed Ekblad's motion demanding that the court protect his rights during the upcoming trial. It advised Ekblad that he did not have to be without counsel:

You have been afforded a great opportunity to have legal counsel. You have chosen not to avail yourself of that opportunity. But even if you told me right now, judge, I want to have an attorney licensed to practice law in Wisconsin at my side tomorrow morning when that trial starts, you would bet I would afford you that right.

Ekblad then complained about time to prepare the case. The court asked him if he was asking to delay the trial to let him get an attorney, but Ekblad said that he could not afford one.³

7. During the pretrial conference the next day, Ekblad complained that he needed counsel and was not capable of defending himself. The court engaged Ekblad in a lengthy colloquy regarding Ekblad's right to counsel, his previous attorneys and his request to have Coughlin represent him:

THE COURT:Well, let's make the record clear on this, Mr. Ekblad. I thought I made it clear yesterday.

Number one, you have known since the beginning, sir, that you could go out and retain your own attorney if you wanted to do so, right?

DEFENDANT:Yes, but I have no money to do so.

THE COURT:Number two, the public defender's office has provided you with two different attorneys, both of which you ultimately objected.

DEFENDANT:No, sir, you said that yesterday, and I am going to correct you today. I did not reject the gentleman yesterday, he withdrew himself.

THE COURT:The documents you filed with the court, Mr. Ekblad, you clearly say he is not your attorney, that you do not want him as your attorney, that you believe he is incompetent by his own admission.

DEFENDANT:Uh-hum (indicating yes). It is his admission.

THE COURT:I am not going to get into a semantical argument with you, sir, but that, sir, is the essence of rejection.

DEFENDANT:He withdrew himself, sir. And, obviously, once he said he was incompetent, I wouldn't accept him. I would not accept another attorney who is incompetent either. I have to have a competent attorney.

THE COURT:Mr. Ekblad, you have had more than adequate opportunity to retain your own counsel. I have not done an examination with regard to your indigency. Apparently you qualified under the state public defender's standards. But you can't have it both ways. You can't demand a speedy trial and then come on the day before the trial and the morning of trial saying, judge, I want a nonlawyer, i.e., Pat Coughlin, to represent me. And that's what you have told me. You haven't ever told me that you want an attorney, a particular attorney to represent you, sir.

DEFENDANT:I had Pat Coughlin here in October. That wasn't just the day before the trial. And you rejected him then. So yesterday wasn't the first time I mentioned this.

THE COURT:Let's make the record clear on that, Mr. Ekblad. In October, I don't believe you ever asked to have Pat Coughlin as your counsel with regard to this matter. You had him at counsel table when we started that proceeding. I told Mr. Coughlin that he had to have a seat behind the rail because he was not an attorney authorized to practice law in the State of Wisconsin. He did that.

As I recall, you did consult with him possibly during the trial over the rail - not during the trial, but during that proceeding in October, but I have never been asked until yesterday to have Pat Coughlin as your counsel.

I rejected that yesterday. Even if you had asked earlier, I would have rejected him because he is not authorized to practice law in the State of Wisconsin. But, sir, you have never come forward and said, I want this attorney as my attorney. For you to say it now the morning of trial, and maybe - are you asking me to appoint you a specific attorney?

DEFENDANT:No. I am just unable to proceed on my own and I am incapable of doing it myself and I need counsel.

THE COURT:Well, but you know, Mr. Ekblad, you want to choose your own counsel, Mr. Ekblad, don't you?

DEFENDANT:I have to interview and find out if he is capable, your honor. ... I want to interview him and find out if he is qualified.

I went to see Mr. Lein and he decided himself that he wasn't qualified.

THE COURT:Let me make this real clear, Mr. Ekblad. You had Jim McLaughlin as your attorney. There is no question that Jim McLaughlin is fully capable of representing you in these proceedings. You discharged Mr. McLaughlin. You have said several times that you believe Mr. McLaughlin was incompetent or ineffective at the time of the preliminary examination, that he didn't ask the right questions, he didn't present your case in the right fashion. I am not going to continue these proceedings, because at the 11th hour you now, even today, you can't tell me who you think is competent to represent you except Pat Coughlin. And Pat Coughlin is not an attorney.

8. The trial proceeded with Ekblad representing himself. Ekblad made comments about his need for an attorney in the presence of the jury at least twice. The jury convicted Ekblad of all fifteen counts of criminal slander of title. The court sentenced Ekblad to ten years. He was released on parole after two years in prison. In June 2000, Ekblad filed a Wis. Stat. 974.06 postconviction motion alleging lack of subject matter jurisdiction, a denial of his right to counsel and a lack of a grand jury indictment. The court denied the motion and Ekblad appeals the judgment and order.

Discussion

I. Right to Counsel

9. Ekblad argues that we should vacate his convictions because he was tried without counsel. He contends that (1) the trial court did not advise him of the dangers of proceeding to trial without counsel, (2) he never waived his right to counsel and (3) the court did not question him to determine whether he was competent to represent himself. We conclude that Ekblad forfeited his right to counsel by manipulating the right so as to obstruct the orderly procedure of the courts and interfere with the administration of justice. Additionally, the court warned Ekblad of the importance of counsel and both expressly and implicitly deemed him competent to represent himself based on his appearances and filings with the court.

10. Both the United States and Wisconsin Constitutions guarantee a criminal defendant the right to assistance of counsel...