State v. Ernst

Decision Date07 July 2005
Docket NumberNo. 2003AP1728-CR.,2003AP1728-CR.
Citation2005 WI 107,283 Wis.2d 300,699 N.W.2d 92
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Alan J. ERNST, Defendant-Appellant.
CourtWisconsin Supreme Court

For the defendant-appellant there were briefs by Jeffrey W. Jensen and Law Offices of Jeffrey W. Jensen, Milwaukee, and oral argument by Jeffrey W. Jensen.

For the plaintiff-respondent the cause was argued by Michael C. Sanders, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.

¶ 1. N. PATRICK CROOKS, J

This case is before the court on certification from the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2001-02).1 The defendant, Alan J. Ernst (Ernst), who has been charged with his fifth offense of operating a motor vehicle under the influence of alcohol, asks for review of a non-final order of the Fond du Lac County Circuit Court, which granted the State of Wisconsin's (State) request to hold an evidentiary hearing, during which it will have the chance to question Ernst in an attempt to prove that Ernst's waiver of the right to counsel was valid and that he was competent to represent himself. The circuit court concluded that the record of Ernst's fourth conviction for operating under the influence of an intoxicant was deficient in two respects: 1) the difficulties and disadvantages of self-representation were not adequately explained; and 2) competency was not explicitly addressed. Thus, the circuit court, in effect, held that Ernst had made a prima facie showing that his waiver of counsel was not knowing, intelligent, and voluntary.

¶ 2. We conclude, first, based on our superintending and administrative authority, that the requirements this court imposed in State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), regarding waiver of counsel, survive the United States Supreme Court's decision in Iowa v. Tovar, 541 U.S. 77 (2004). Second, we hold that an alleged violation of the requirements of Klessig can form the basis of a collateral attack, as long as the defendant makes a prima facie showing, pointing to facts that demonstrate that he or she did not knowingly, intelligently, and voluntarily waive his or her constitutional right to counsel. Third, we conclude that when the defendant successfully makes a prima facie showing, the burden to prove that the defendant validly waived his or her right to counsel shifts to the State (State of Wisconsin). Fourth, we hold that the State may call and elicit testimony from the defendant at an evidentiary hearing in an attempt to meet its burden and, in turn, the defendant may not raise his or her Fifth Amendment privilege against testifying. Finally, we conclude that the defendant's refusal to testify under these circumstances allows a circuit court reasonably to infer that the State has satisfied its burden of showing a knowing, intelligent, and voluntary waiver of the right to counsel.

I

¶ 3. The relevant facts are not in dispute. On August 10, 2002, the Fond du Lac County police stopped Ernst on suspicion that he was operating his vehicle while under the influence of an intoxicant (OWI). Ernst failed his field sobriety tests and was then placed under arrest. His blood-alcohol content was measured at 0.02.2

¶ 4. A Fond du Lac County Assistant District Attorney filed a two-count complaint against Ernst. He was charged with an OWI, pursuant to Wis. Stat. § 346.63(1)(a), and having a prohibited alcohol concentration under § 346.63(1)(b). Because Ernst had received four prior convictions for OWI, these crimes were charged as fifth offenses.

¶ 5. Before trial, Ernst filed a motion collaterally attacking his fourth OWI conviction for the purpose of reducing the penalty enhancement in the pending case. He alleged that his Sixth Amendment right to counsel3 had not been validly waived when he pled guilty to the previous OWI charge. Specifically, he claimed he "was not represented by counsel and the court did not take a knowing and voluntary waiver of counsel from the defendant or determine that the defendant was competent to represent himself."

¶ 6. Following a motion hearing, the Fond du Lac County Circuit Court, Dale L. English, Judge, concluded that the record in Ernst's fourth OWI conviction, in regard to his waiver of counsel, was deficient because Ernst was not adequately instructed on the difficulties and disadvantages of proceeding pro se, and that competency was not explicitly addressed. The transcript from his plea and sentencing proceeding on February 26, 2002, in relevant part, sets forth the following:

THE COURT: Mr. Ernst, the Plea Questionnaire and Waiver of Rights form that I have received — is it your wish to proceed here today without counsel?
THE DEFENDANT: Yes, it is, Your Honor.
THE COURT: And do you feel that that's a decision that you have made of your own volition?
THE DEFENDANT: It was a hard decision, yes, it was. But, yes.
THE COURT: Okay. You understand the document that I have received? You've read through it?
THE DEFENDANT: Yes, sir, I have.
THE COURT: And this is your signature on the back side?
THE DEFENDANT: Yes, it is, Your Honor.
THE COURT: And it's dated today's date?
THE DEFENDANT: Yes, it is.
THE COURT: The form indicates that you would be entering a no contest plea; that you do have a high school diploma; that you understand the English language; that you understand the charge to which you are pleading; that you are not currently receiving treatment for a mental illness or disorder; nor have you had any alcohol, medications, or drugs within the last 24 hours. Are all of those statements true and correct?
THE DEFENDANT: Yes, they are.
THE COURT: As it relates to your constitutional rights, you have put check marks in each of the boxes preceding each of the seven rights and concludes with a statement that you understand the rights that have been checked and that you are giving them up of your own free will. Is that also true and correct?
THE DEFENDANT: Yes, it is.
. . . .
The COURT: You understand the penalties that the Court could impose in this matter?
THE DEFENDANT: Yes, I do, Your Honor.

¶ 7. After the circuit court's ruling in regard to the fourth OWI conviction, the State promptly requested an evidentiary hearing to show that Ernst had knowingly, intelligently, and voluntarily waived his right to counsel in that case. The State also informed the court that it intended to call Ernst as a witness at this hearing. Ernst responded by announcing that he would assert his Fifth Amendment privilege against self-incrimination and would not testify if called as a witness. ¶ 8. After ordering the parties to submit briefs, the circuit court entered an order on June 17, 2003, which granted the State's request for an evidentiary hearing and allowed the State to question Ernst with respect to his previous waiver of counsel. The court reasoned that the State would never be able to meet its burden at such a hearing without being able to question the defendant and, that if unable to question him, the evidentiary hearing would become, in effect, meaningless. With respect to the Fifth Amendment privilege, the court held, first, "that it's disingenuous for a defendant to be able to raise a right to counsel issue... and then be insulated from having to testify about the very issues the defendant raises." The court also determined that Ernst could not incriminate himself with regard to the fourth OWI conviction, since he had been convicted on that charge previously. Subsequently, Ernst petitioned the court of appeals for interlocutory review of the circuit court's decision to grant an evidentiary hearing and to compel Ernst's testimony at the hearing. The court of appeals granted the petition and then certified the case to this court. We granted review and heard oral arguments on November 12, 2004.

¶ 9. On December 1, 2004, we ordered the parties to file supplemental briefs. We have considered all of the briefs, as well as the oral arguments, and now reverse the order of the circuit court, since we determine that a sufficient prima facie case has not been established. We remand the case for further proceedings consistent with this opinion, where Ernst would have the opportunity to file an affidavit and attempt to establish a prima facie case.

II

¶ 10. Whether a defendant knowingly, intelligently, and voluntarily waived his Sixth Amendment right to counsel requires the application of constitutional principles to the facts. See Klessig, 211 Wis. 2d at 204

; see also State v. Woods, 117 Wis. 2d 701, 715-16, 345 N.W.2d 457 (1984). We review such a question de novo, independently of the reasoning of the circuit court. Klessig, 211 Wis. 2d at 204. We benefit, however, from that court's analysis. Whether a party has met the burden of establishing a prima facie case presents a question of law which we review de novo. See State v. Baker, 169 Wis. 2d 49, 78, 485 N.W.2d 237 (1992).

¶ 11. We also determine whether a defendant's Fifth Amendment privilege against compulsory incrimination may be violated. Such an analysis presents a question of law and, thus, is subject to de novo review. See State v. Eastman, 185 Wis. 2d 405, 410, 518 N.W.2d 257 (1994)

.

III

¶ 12. The first issue we address is whether the requirements this court imposed in Klessig, regarding waiver of counsel, survive the United States Supreme Court's recent decision in Iowa v. Tovar. Ernst and the State seem to agree that the Klessig requirements may be imposed as a procedural rule under the court's superintending and administrative authority over the Wisconsin court system and, thus, do not conflict with the Supreme Court's holding in Tovar.

¶ 13. We first discussed the requirements necessary to effectuate a valid waiver of counsel in Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980). In that case, the defendant attempted to have his conviction overturned because the circuit court failed...

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