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COURT OF APPEALS DECISION DATED AND FILED July 2, 2014 Diane M. Fremgen Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
Cir. Ct. No. 2011CF417 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State of Wisconsin, Plaintiff-Respondent, v. Begoll Azizi, Defendant-Appellant. |
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APPEAL from a judgment and an order of the circuit court for Fond du Lac County: gary r. sharpe, Judge. Affirmed.
Before Brown, C.J., Neubauer, P.J., and Gundrum, J.
¶1 PER CURIAM. Begoll Azizi appeals his
conviction for operating
a motor vehicle while intoxicated (OWI), sixth offense, and an order denying
postconviction relief. Azizi contends
that the trial court impermissibly denied him his right to self-representation
and his right to compulsory process. We
affirm.
¶2 After a jury found him guilty of operating a motor vehicle while under the influence of a controlled substance, Azizi was convicted of OWI, sixth offense, pursuant to Wis. Stat. § 346.63(1)(a) (2011-12).[1] Postconviction, Azizi filed a pro se motion for a new trial in which he alleged that the trial court violated his constitutional rights to represent himself and to compulsory process. The trial court denied the motion. Azizi appeals.
Right to Self-Representation
¶3 The Sixth Amendment to the United States Constitution and article I, section 7 of the Wisconsin Constitution guarantee a criminal defendant both the right to counsel and the right to self-representation. See Faretta v. California, 422 U.S. 806, 818-21 (1975); State v. Klessig, 211 Wis. 2d 194, 201-03, 564 N.W.2d 716 (1997). To safeguard these rights, before a defendant is permitted to proceed pro se, “the [trial] court must ensure that the defendant (1) has knowingly, intelligently, and voluntarily waived the right to counsel, and (2) is competent to proceed pro se.” State v. Imani, 2010 WI 66, ¶21, 326 Wis. 2d 179, 786 N.W.2d 40. “Whether [a defendant]’s constitutional right to self-representation was violated presents a question of law, which we review de novo.” State v. Darby, 2009 WI App 50, ¶13, 317 Wis. 2d 478, 766 N.W.2d 770.
¶4 To
invoke the right to self-representation, a defendant must clearly and unequivocally
demand the right to proceed pro se. Id.,
¶24. Only a clear and unequivocal demand
triggers the trial court’s obligation to ensure a valid waiver of the right to
counsel and competency to proceed pro se.
Id., ¶¶18-19, 24. This “clear
and unequivocal” threshold is critical for two reasons. First, it prevents a defendant from
inadvertently waiving the right to counsel. Id., ¶20. “Because a defendant normally gives up more
than he gains when he elects self-representation, we must be reasonably certain
that he in fact wishes to represent himself.”
Id. (citation omitted). Second,
it “prevents a defendant from taking advantage of the mutual exclusivity of the
rights to counsel and self-representation.” Id. (citation omitted). A “clear and unequivocal” standard prevents a
defendant who vacillates at trial between wanting to be represented by counsel
and wanting self-representation from claiming on appeal that the trial court,
in granting one of the two requests, denied him the right to the other. “The requirement of unequivocality resolves
this dilemma by forcing the defendant to make an explicit choice. If he [or she] equivocates, he [or she] is
presumed to have requested the assistance of counsel.” Id. (citation omitted). Finally, a defendant’s expressed
dissatisfaction with current counsel is insufficient to establish that a
request to proceed pro se is clear and unequivocal. Id., ¶26.
¶5 Regarding
the timeliness of a request to proceed pro se, while the Sixth Amendment seeks
to ensure the defendant’s interest in a fair trial, the state has an interest in
avoiding any interference with the orderly administration of justice and in
preserving the integrity of the trial process.
Hamiel v. State, 92 Wis. 2d 656, 672, 285 N.W.2d 639
(1979). When raised at the last minute,
both a request for new counsel and a request to proceed pro se can have adverse
effects on the judicial system. Id. at 673.
“[The two rights] are not intended to allow the defendant the
opportunity to avoid or delay the trial for any unjustifiable reason.” Id. (emphasis omitted). Therefore,
“[e]leventh-hour requests are generally frowned upon as a mere tactic to delay
the trial.” State v. Lomax,
146 Wis. 2d 356, 361-62, 432 N.W.2d 89 (1988) (upholding denial of substitution
of counsel). If the court grants an
eleventh-hour request to proceed pro se, it must also grant a continuance to
allow the defendant the time to prepare a defense. Hamiel, 92 Wis. 2d at 674. Thus, the court must weigh the defendant’s
right to proceed pro se with the “convenience of the witnesses, jurors, and the
court schedule” in deciding whether to grant the untimely request. Id. at 673. Where a request to proceed pro se is
made on the day of trial, the determinative question is whether the request is
proffered merely to secure a delay or tactical advantage. Id.
¶6 Here,
Azizi’s untimely request to proceed pro se was not clear and unequivocal. At a motion hearing on the day before trial, Azizi
first requested substitution of counsel, criticizing his appointed counsel for
deciding not to call two witnesses whom Azizi said he wanted to testify. One witness was a state trooper who was at
the scene of Azizi’s stop, and the other was an unidentified doctor. Azizi’s counsel did not intend to call these
witnesses, and Azizi himself did not know what they would say. Based on this disagreement on strategy, Azizi
said he wanted new counsel, telling the trial court, “I waive my right to Sixth
Amendment of counsel. I do not want her
at all.” Counsel told that court that
the “strategy that’s been developed … is consistent with the goals of the representation
that [Azizi] laid out.” Thus, Azizi initially
requested a new lawyer on the day before trial because his counsel did not intend
to call two witnesses that Azizi identified but did not know how they would
help his defense. It was only as an alternative to new
counsel that Azizi sought to proceed pro se.
And then, Azizi acknowledged that he would not be capable of conducting
a jury trial on his own.
¶7 Regarding
the timing of Azizi’s equivocal request to proceed pro se, the trial court
said:
This matter
has been pending for some time now. It
is the day before the trial, in fact the day that the trial was supposed to
have begun. The Court is concerned that
this issue at this late hour is more a tactic to stall than a tactic to deal
with legitimate issues involved in the defense of the case.
¶8 Given
Azizi’s eleventh-hour request, his vacillating between a request for new
counsel and a request to proceed pro se, and his own acknowledgment that he was
incapable of representing himself, it can hardly be said that Azizi’s request
was “a deliberate choice to proceed without counsel.” Imani, 326 Wis. 2d 179, ¶28. The trial court’s decision to deny Azizi’s
request to proceed pro se, based on its conclusion that neither good cause for
the last-minute request nor grounds for a continuance had been shown, and that
the request was merely a tactic to delay rather than to address legitimate
issues involved in the defense, was an appropriate exercise of discretion. See Hamiel, 92 Wis. 2d at 672 (whether
to grant untimely request to proceed pro se is within discretion of trial
court).
¶9 In
sum, only a defendant’s clear and unequivocal request to proceed pro se, made
in a timely manner, see id., requires the trial court to
entertain the defendant’s request and undertake the two-part colloquy on waiver
of counsel and competency to proceed pro se, Darby, 317 Wis. 2d 478, ¶¶18,
24. Here, the trial court properly
denied Azizi’s request to proceed pro se for all the reasons succinctly set
forth by the trial court:
The Court is not going to allow you to … waive your right to counsel at this point. You yourself have told the Court that you don’t think that you are capable of handling the jury trial on your own.
This is an issue dealing with one witness. I don’t know anything about the witness. I don’t know what the witness would say. It’s a disagreement … as to the strategy to be employed to meet the goals of this representation in this case. But I’m not going to get into that at the eleventh hour, nor am I going to remove counsel and have you be here incapable of conducting a jury trial and not prepared.
If, in fact, this was a case that you had chosen to waive counsel and you were ready to proceed to try the case and you were prepared, that would be one thing. But this trial starts tomorrow morning. There is no way that you … could be prepared to conduct a jury trial tomorrow.
Right
to Compulsory Process
¶10 Azizi
also contends that he was denied the right to compulsory process because the
trial court refused his request to compel a state trooper to testify at
trial. See U.S. Const. amend.
VI; Wis. Const., art. I, § 7. First, it is the litigants, not the court,
who decide whether to call a particular witness. Here, defense counsel made a strategic choice
not to call the state trooper. Second,
Azizi did not even know, either at trial or at the postconviction hearing, what
the trooper would say or would have said.
The trial court did not err when it refused Azizi’s request to compel
the attendance of the state trooper where defense counsel had made a strategic
decision not to call the witness at trial.
¶11 Finally,
Azizi argues that the trial court erred in denying him postconviction
relief. Azizi’s postconviction motion
failed for all the reasons explained above.
By
the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.