State v. Klessig, 95-1938-CR

• Decision Date: 17 January 1996
• Docket Number: No. 95-1938-CR,95-1938-CR
• Citation: 544 N.W.2d 605,199 Wis.2d 397
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Chad A. KLESSIG, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 605

544 N.W.2d 605

199 Wis.2d 397

STATE of Wisconsin, Plaintiff-Respondent, v. Chad A. KLESSIG, Defendant-Appellant. ^d

No. 95-1938-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 11, 1995.

Opinion Released Jan. 17, 1996.

Opinion Filed Jan. 17, 1996.

Appeal from a judgment of the Circuit Court for Brown County; Richard Greenwood, Judge. Affirmed.

For the defendant-appellant the cause was submitted on the briefs of Robert J. Miller of Green Bay.

For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, Attorney General, and Diane M. Nicks, Assistant Attorney General.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

Chad A. Klessig appeals a judgment of conviction for one count of party to the crime of burglary. Klessig contends that the trial court erred by failing to conduct a hearing on Klessig's waiver of his constitutional right to counsel and his competency to proceed pro se. Because Klessig has not alleged that he was prejudiced by the trial court's failure to inquire whether the waiver of his right to counsel was knowing and voluntary and the trial court is not required to inquire into a defendant's competency to represent himself, we affirm the judgment of conviction.

The State charged Klessig with one count of bail jumping and one count of being a party to the crime of burglary. Klessig waived his preliminary hearing and was bound over for trial. Klessig's court-appointed attorney later moved for permission to withdraw as counsel and the motion was granted. The state public defender's office appointed a new attorney who was also permitted to withdraw with Klessig's approval. The public defender's office subsequently advised Klessig that it would not appoint additional counsel in view of his discharge of the two previously appointed attorneys and asked that he contact it about his latest attorney continuing his representation. Klessig wrote the court and the public defender's office advising them that he would be acting as his own counsel and that he was prepared for trial on the scheduled trial date. The trial court appointed stand-by counsel for Klessig and permitted Klessig to conduct his own defense. The State proceeded to trial on the burglary count and Klessig was convicted after a jury trial.

Klessig now contends that the trial court failed to establish that Klessig made a knowing and intelligent waiver of his right to counsel and that Klessig was competent to proceed pro se. ¹ We review the issue of whether Klessig effectively waived his constitutional right to counsel de novo because it raises issues of constitutional fact. See State v. Haste, 175 Wis.2d 1, 23, 500 N.W.2d 678, 687 (Ct.App.1993).

The United States Supreme Court has determined that the Sixth Amendment right to counsel encompasses a defendant's right to proceed pro se. Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975). In order to represent himself, the accused must knowingly and intelligently waive his right to counsel. Id. at 835, 95 S.Ct. at 2541.

Klessig contends that the absence of a colloquy between the court and the defendant in regard to his request to represent himself and waive his right to counsel requires a reversal of his conviction. Unquestionably the court is obligated to inquire whether the waiver was knowingly and voluntarily made. See Pickens v. State, 96 Wis.2d 549, 561-62, 292 N.W.2d 601, 608 (1980). It is equally clear that the record in this case contains no inquiry indicating that the waiver was knowing and voluntary. The question before us is the result of the court's failure to make such an inquiry.

We first note that the defendant does not assert that he was unaware of the implications of his waiver of counsel or that the waiver was not entirely voluntary. The defendant's position is that the absence of the inquiry standing alone and with nothing more compels reversal. We disagree. When a court fails to comply with mandated procedure, the defendant is obligated to make a prima facie showing that he has been prejudiced by the omission. See State v. Bangert, 131 Wis.2d 246, 274, 389 N.W.2d 12, 26 (1986). If a prima facie showing is made, the burden shifts to the State to prove by clear and convincing evidence that the waiver of counsel was knowingly and voluntarily made. ² See id. at 274-75, 389 N.W.2d at 26. Without a prima facie showing or even a contention that he did not have the knowledge and understanding necessary for him to voluntarily and intelligently waive his right to counsel, Klessig's rights have not been prejudiced and the court's omission is nothing more than harmless error. See id.

We recognize that there is a split of authority in the federal courts as to whether harmless error analysis applies to waiver of the right to counsel. Compare Richardson v. Lucas, 741 F.2d 753, 757 (5th Cir.1984) (applying harmless error analysis) and United States v. Gipson, 693 F.2d 109, 112 (10th Cir.1982) (same) with Abdullah v. Groose, 44 F.3d 692, 696 (8th Cir.1995) (harmless error doctrine is inappropriate in this context). We conclude that this issue is resolved in Wisconsin by Bangert, which applies harmless error analysis to a broad spectrum of constitutional rights. We see no reason why Bangert should not apply to the waiver of counsel.

We believe not every technical error should result in a windfall by reversing the conviction of a defendant who has not been prejudiced by the error. The error should not be conclusively presumed to be prejudicial. The defendant has an obligation to make at least a minimal showing that the court's omission has in some way affected his rights. The burden of asserting a claim of prejudice or making a prima facie showing that his rights have been affected by the error is not so great as to adversely affect the State's conscientious effort to comply with the requirements of law. Because the defendant need only make a prima facie showing of prejudice and the State bears the burden of proving by clear and convincing evidence that the waiver was knowing and voluntary, we believe the State will make conscientious efforts to assist the trial court in meeting its obligations. Our holding that every technical failure does not compel reversal is consistent with the Bangert analysis and the integrity of the judicial process.

Further, we may look to the record to determine whether the defendant made a knowing and voluntary waiver of his right to counsel. See Pickens, 96 Wis.2d at 563, 292 N.W.2d at 609. In this case, the request to waive counsel came from the defendant by a...