State v. Klessig

• Decision Date: 24 June 1997
• Docket Number: No. 95-1938-CR,95-1938-CR
• Citation: 211 Wis.2d 194,564 N.W.2d 716
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Chad A. KLESSIG, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 716

564 N.W.2d 716

211 Wis.2d 194

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

No. 95-1938-CR.

Supreme Court of Wisconsin.

Argued Jan. 10, 1997.

Decided June 24, 1997.

For the defendant-appellant-petitioner there were briefs and oral argument by Robert J. Miller, Green Bay.

For the plaintiff-respondent the cause was argued by Diane M. Nicks, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

¶1 JON P. WILCOX, Justice

This case is before the court on a petition for review filed by Chad A. Klessig. The petitioner seeks review of a published decision of the court of appeals, State v. Klessig, 199 Wis.2d 397, 544 N.W.2d 605 (Ct.App.1996), that affirmed his conviction. The trial was held in the Circuit Court for Brown County, Richard G. Greenwood, Judge. We reverse the decision of the court of appeals.

¶2 On review, there are two issues: (1) whether Klessig knowingly, intelligently and voluntarily waived his Sixth Amendment right to counsel, and (2) whether the circuit court should have made an independent determination of Klessig's competency to represent himself. We hold that the record is insufficient to determine whether Klessig's waiver of counsel was knowing, intelligent and voluntary, and that the circuit court should have made an independent determination of Klessig's competence to represent himself. We thus reverse the decision of the court of appeals and remand for an evidentiary hearing to determine (1) whether Klessig knowingly, intelligently and voluntarily waived his right to counsel, (2) whether an adequate and meaningful nunc pro tunc inquiry can be conducted on the issue of whether Klessig was competent to represent himself, and (3) if such an inquiry can be conducted, whether Klessig was competent to proceed pro se.

I.

¶3 The relevant facts are not in dispute. Klessig was initially charged with one count of bail jumping contrary to Wis. Stat. § 946.49(1)(b) (1995-96) ¹ and one count of being a party to the crime of burglary contrary to Wis. Stat. § 943.10(1)(a) ² and Wis. Stat. § 939.05. ³ After Klessig waived his preliminary hearing and was bound over for trial, his court appointed attorney asked for permission to withdraw as counsel; that motion was granted. The state public defender's office appointed another 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, but also informed Klessig that, if he wished, he could retain his latest attorney to represent him.

¶4 Klessig responded by letter to the court and the public defender's office advising both that he would be acting as his own counsel and asserting that he was prepared for trial on the scheduled day. The letter stated:

I would like to inform you that I will be acting on my own behalf in this case.

I am prepared for the jury trial which is scedualed [sic] for December 12, 1994 in a number one position.

Shortly thereafter, Klessig appeared in court without counsel. The trial court did not, at this time or at any other time, engage in an on-the-record colloquy with the defendant concerning either the knowing or voluntary waiver of his right to counsel. The trial court also did not inquire into the defendant's competency to represent himself and proceed pro se. The following excerpt from the record documents the conversation that took place when Klessig first appeared without counsel:

THE COURT: State of Wisconsin versus Chad A. Klessig, 94-CF-297. Attorney Lawrence Lasee is here on behalf of the state. You're Mr. Klessig?

THE DEFENDANT: Yeah.

THE COURT: And Mr. Chad Klessig is also present. And I know I did receive a letter not too long ago from Mr. Klessig. Yes, here it is. It was to Mr. Schulz.

I would like to inform you that I will be acting on my own behalf in case 94-CF-397 [sic]. I would also like to request that you inform the court of this and inform them that I am prepared for jury trial, which is scheduled for December 12, 1994, in a number one position. Thank you.

Sincerely, Chad A. Klessig.

Then I did get a letter from--also, another letter from you. That's dated November 13th. I knew I had read this.

And what was the charge in this case? Is it one count of burglary?

MR. LASEE: Yes, it is your honor.

THE COURT: Is there a charge of bail jumping too or not?

MR. LASEE: There is, yes.

THE COURT: Well, we'll have the jury come Monday. But do you want to have a lawyer stand behind you? In other words, they call that a standby counsel. You don't have to have a lawyer. You can represent yourself, and you have a constitutional right to do that. And I don't have any intent to interfere with any of your rights, but--

THE DEFENDANT: Yes, I would like one.

THE COURT: If you want a lawyer behind you, they call that--Not standby.

Mr. LASEE: I thought it was standby.

THE COURT: Maybe it is standby counsel. This gentleman is charged, Mr. Miller, with bail jumping and with party to a crime burglary. He's had a number of lawyers. And he is not interested in having them represent him, but I want to know--Maybe you don't wouldn't want to be--

A SPECTATOR: My client is charged with party to that crime.

THE COURT: Oh, I see.

A SPECTATOR: Thank you very much

THE COURT: All right. Did anybody--I tried to get ahold of Attorney Robert Miller.

MR. LASEE: I called his office this afternoon. He's on vacation through the 16th.

THE COURT: Mr. Cano, can you do that?

A SPECTATOR: What's that, your honor?

THE COURT: Can you do standby counsel or not? You're part of the public defender's office.

A SPECTATOR: Yes I am. I don't know what we're talking about though. I just walked in.

THE COURT: Oh. That's right. Your office could not. There's a letter here to that effect. Why don't you--You wait here. I'm going to try to find a lawyer. I'm going to go through the calendar. I'm going to find one by the end of the day who'd sit with you.

All right, thank you.

¶5 The bail jumping charge was dismissed and the matter went to a jury trial on the single burglary count with Klessig representing himself. The jury found Klessig guilty of party to the crime of burglary and he was sentenced to 58 months in prison.

¶6 Klessig appealed the judgment of conviction. He asserted that the circuit court erred by failing to conduct a hearing on whether he was competent to proceed pro se and on whether he had knowingly, intelligently and voluntarily waived his right to counsel. The court of appeals rejected Klessig's arguments and affirmed his conviction. Klessig subsequently petitioned for review and we granted his petition on May 7, 1996.

II.

¶7 The right to the assistance of counsel is necessary to ensure that a criminal defendant receives a fair trial, that all defendants stand equal before the law, and ultimately that justice is served. Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796-97, 9 L.Ed.2d 799 (1963). A criminal defendant in Wisconsin is guaranteed this fundamental right to the assistance of counsel for his defense by both Article I, § 7 of the Wisconsin Constitution ⁴ and the Sixth Amendment of the United States Constitution ⁵ as made applicable to the states by the Fourteenth Amendment. ⁶ See Gideon, 372 U.S. at 339-43, 83 S.Ct. at 793-96; Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938); Grosjean v. American Press Co., 297 U.S. 233, 243-44, 56 S.Ct. 444, 446-47, 80 L.Ed. 660 (1936); Powell v. Alabama, 287 U.S. 45, 68, 53 S.Ct. 55, 63-64, 77 L.Ed. 158 (1932); State v. Sanchez, 201 Wis.2d 219, 226, 548 N.W.2d 69 (1996); Spencer v. State, 85 Wis.2d 565, 570, 271 N.W.2d 25 (1978). The scope, extent, and, thus, interpretation of the right to the assistance of counsel is identical under the Wisconsin Constitution and the United States Constitution. Sanchez, 201 Wis.2d at 229, 548 N.W.2d 69.

¶8 The Sixth Amendment and Article I, § 7 also give a defendant the right to conduct his own defense. Article I, § 7 gives this right explicitly: "In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel." See Dietz v. State, 149 Wis. 462, 479, 136 N.W. 166 (1912). The Sixth Amendment does not explicitly establish this right but it is "necessarily implied by the structure of the Amendment." Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975); see also Browne v. State, 24 Wis.2d 491, 509-511b, 129 N.W.2d 175, 131 N.W.2d 169 (1964), cert. denied, Browne v. Wisconsin, 379 U.S. 1004, 85 S.Ct. 730, 13 L.Ed.2d 706 (1965). Just as the right to the assistance of counsel is identical under the Wisconsin and United States Constitutions, the right to represent oneself also does not differ. Thus, in resolving this case, we give due weight to decisions concerning the Sixth Amendment.

¶9 The Supreme Court has recognized that the right to represent oneself seems to conflict with the right to the assistance of counsel. Faretta, 422 U.S. at 832-33, 95 S.Ct. at 2539-40. This court has also noted that the interaction of these two rights "create[s] somewhat of a dilemma for the trial judge who is confronted with the unusual defendant who desires to conduct his own defense." Pickens v. State, 96 Wis.2d 549, 556, 292 N.W.2d 601 (1980). When a defendant seeks to proceed pro se, the circuit court must insure that the defendant (1) has knowingly, intelligently and voluntarily waived the right to counsel, and (2) is competent to proceed pro se. Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 2685, 125 L.Ed.2d 321; Pickens, 96 Wis.2d at 568-69, 292 N.W.2d 601; see also Wis JICriminal SM-30; Wis JI-Criminal SM-30A. If these conditions are not satisfied, the circuit court must prevent the defendant from representing himself or deprive him of his constitutional right to the assistance of counsel. However, if the defendant knowingly, intelligently and voluntarily...