COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 98-2206-CR
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|
†Petition for review filed |
† Petition for
Review Filed |
State
of Wisconsin,
Plaintiff-Respondent, v. Bobby
G. Grant,
Defendant-Appellant. † |
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Opinion Filed: August 18, 1999 Submitted on Briefs: May 21, 1999 |
JUDGES: Nettesheim, Anderson and Mueller, JJ. |
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Appellant ATTORNEYS: On
behalf of the defendant-appellant, the cause was submitted on the briefs of Patrick M. Donnelly, assistant public
defender, Madison. Respondent ATTORNEYS: On
behalf of the plaintiff-respondent, the cause was submitted on the brief of James
E. Doyle, attorney general, and Michael R. Klos, assistant
attorney general. |
COURT OF APPEALS
DECISION
DATED AND FILED
August 18, 1999
Marilyn L. Graves
Clerk, Court of Appeals
of Wisconsin
NOTICE
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 § 808.10 and Rule 809.62, Stats.
STATE OF WISCONSIN IN COURT OF APPEALS
State
of Wisconsin,
Plaintiff-Respondent,
v.
Bobby
G. Grant,
Defendant-Appellant.
APPEAL from a judgment and an order of the circuit court for Kenosha County: MICHAEL S. FISHER, Judge. Affirmed.
Before Nettesheim, Anderson and Mueller,[1] JJ.
MUELLER,
J. Bobby G. Grant appeals from a judgment
of conviction for one count of second-degree sexual assault in violation of
§ 940.225(2), Stats.; one
count of battery in violation of § 940.19(1), Stats.; one count of intimidation of a victim in violation of
§ 940.45(3), Stats.; one
count of false imprisonment in violation of § 940.30, Stats.; and one count of criminal
trespass to a dwelling in violation of § 943.13, Stats., all as a habitual
offender. He also appeals from
the
trial court’s denial of his motion for postconviction relief. Grant waived his right to a jury trial and
was found guilty on all counts following a trial to the court. On appeal, Grant argues that he is entitled
to a new trial because at the time he waived his right to a jury trial, the
trial court failed to advise him that a verdict in a criminal jury trial must
be unanimous. We disagree and affirm
the judgment and the order.
While
we find that the trial court failed to properly advise Grant of the jury
unanimity requirement, Grant is not thereby automatically entitled to a new
trial. Rather, the appropriate remedy
is a postconviction motion pursuant to the procedures set forth in State
v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986), to determine
the defendant’s knowledge and understanding of the rights being waived. Bangert, however, requires a
threshold allegation by the defendant that he or she did not know or
understand the rights at issue before he or she may be entitled to a
hearing. Grant has failed to make this
allegation. Accordingly, we further
hold that his postconviction motion was deficient and was properly denied by
the trial court.
BACKGROUND
Grant
was charged in a criminal complaint filed on July 31, 1996, with one count of
second-degree sexual assault, one count of intimidating a victim, one count of
substantial battery, and one count of criminal trespass to a dwelling, all counts
charged as a repeat offender. Following
a preliminary hearing, Grant was bound over for trial on an information
charging the same four violations and an additional count of false
imprisonment.
Grant
appeared for a scheduled jury trial on May 9, 1997. Defense counsel advised the trial court that his client intended
to waive his right to a jury and proceed on a bench trial. Defense counsel noted for the record that the
waiver was “against [counsel’s] advice,” but advised that they had “fully
discuss[ed]” Grant’s right to a jury trial and that Grant had decided that a
jury trial was not in his best interests.
Grant agreed with these representations.
The
trial court then engaged Grant in a brief personal colloquy on the issue of
waiver. When asked whether Grant wanted
the court to “act as both the finder of fact and the determiner of the law,” Grant answered
“yes.” Grant acknowledged that he had
not been forced, coerced or threatened into waiving his right to a jury trial. After a brief discussion of Grant’s mental state and
education, the trial court found that Grant had made a free, voluntary and
intelligent choice and granted the request to waive a jury trial.
Following a bench trial, the trial court found Grant
guilty of the five counts charged in the information and sentenced him on July
22, 1997.
On
May 4, 1998, Grant filed a motion for postconviction relief, arguing that he
was entitled to a new trial because the trial court failed to advise him, at
the time he waived his right to a jury trial, that a verdict in a criminal jury
trial must be unanimous. A
postconviction hearing was held in the trial court on July 9, 1998. The trial court denied the motion, finding
from the transcript of the waiver colloquy that Grant, while not having been
explicitly advised of the jury unanimity requirement, was “sufficiently aware
of that requirement both through his attorney and his past experience in the
courts” and that he was not entitled to a new trial. Grant appeals.
DISCUSSION
A
criminal defendant’s right to a trial by jury is guaranteed by the Sixth
Amendment to the United States Constitution and Article I, Section 7 of the
Wisconsin Constitution. The right to a
jury trial includes the right to a unanimous verdict. See State v. Lomagro, 113 Wis.2d 582, 590,
335 N.W.2d 583, 588-89 (1983). The
right to a jury trial can also be waived in favor of a trial to the court.
See § 972.02(1), Stats. However, any
waiver of that right must be knowing and intentional. See Johnson v. Zerbst, 304 U.S. 458,
464
(1938); State v. Albright, 96 Wis.2d 122, 130-31,
291 N.W.2d 487, 491 (1980). The
waiver must also be made personally by the defendant on the record and it may
not be inferred from the defendant’s silence.
See Krueger v. State, 84 Wis.2d 272, 282,
267
N.W.2d 602, 607 (1978).
Our
supreme court determined in State v. Resio, 148 Wis.2d 687, 696,
436 N.W.2d 603, 607 (1989), that knowledge of the unanimity requirement
is not constitutionally required for a valid jury waiver. Nonetheless, the court directed that as a
matter of judicial administration pursuant to its supervisory authority under
Article VII, Section 3 of the Wisconsin Constitution, it would henceforth
require that a circuit court in a criminal case advise the defendant that the
court cannot accept a jury verdict unless agreed to by each member of the
jury. See Resio,
148 Wis.2d at 696-97, 436 N.W.2d at 607. In the case before us, the State concedes,
and our review of the record confirms, that the trial court
did not comply with this requirement.
The
issue before this court is the proper remedy for a violation of the court’s
directive in Resio. Grant
contends that the per se remedy is a new trial. The State argues that the
proper remedy is a postconviction hearing similar to the procedure set forth in
Bangert, 131 Wis.2d at 272-76, 389 N.W.2d at 25-27, which
is applicable
to defective guilty pleas. We agree
with the State.
We
first address Grant’s contention that a new trial is automatically required in
the event of a Resio violation.
Grant argues that this situation is governed by State v.
Livingston, 159 Wis.2d 561, 573, 464 N.W.2d 839,
844
(1991), in which the Wisconsin Supreme Court determined that the remedy for a
trial court’s failure to make a record of a defendant’s personal waiver of the
right to a jury trial is a new trial.
We conclude that Livingston is distinguishable.
In Livingston,
the supreme court ordered a new trial after the trial court failed to conduct a
personal colloquy with the defendant regarding a jury waiver. See id. There, defense counsel agreed to a bench
trial, but Livingston himself never acknowledged waiving the right. See id. at 565, 464 N.W.2d at
841. The court held that this was a
violation of
its Krueger directive, see
Livingston, 159 Wis.2d at 569, 464 N.W.2d at 843, that “henceforth a record
demonstrating the defendant’s willingness and intent to give up the right to be
tried by a jury must be established before the waiver is accepted.” Krueger, 84 Wis.2d at 282, 267
N.W.2d at 607. The court in Livingston
looked to § 972.02(1), Stats.,
which provides that “criminal cases shall be tried by a jury
...
unless the defendant waives a
jury in writing or by statement in open court.” (Emphasis added.) It construed the statute to require a jury trial absent an
appropriate waiver by the defendant. See Livingston, 159 Wis.2d at 568, 464 N.W.2d at
842. Since Krueger had ruled that
such a waiver must be personally made by the defendant —not
by counsel and not presumed from the defendant’s silence—the trial court’s failure to conduct a
personal colloquy rendered Livingston’s waiver invalid. See Livingston, 159 Wis.2d at
569, 464 N.W.2d at 843. Regarding the
appropriate remedy, the
court rejected the State’s claim that the case should be remanded
for a Bangert-type postconviction
hearing. See Livingston,
159 Wis.2d at 571-73, 464 N.W.2d at 843-44.
Because “the
procedure required by sec. 972.02(1), Stats.,
and Krueger is a per se requirement,” it ruled that
“failure
to follow that procedure, by itself and independent of constitutional
considerations” that would be examined in a Bangert
hearing, requires the granting of a new trial. Livingston, 159 Wis.2d at 573,
464 N.W.2d at 844.
Grant
contends that he stands precisely in the position of the defendant in Livingston. He urges that he has not alleged a
constitutional violation but rather a failure of the trial court to comply with
the Resio mandate. Such
proclamations issued pursuant to the supreme court’s supervisory powers¾like that in Krueger¾create, he contends, a
strict per se rule, independent of constitutional considerations, mandating a
new trial.
We disagree. Grant’s situation can be distinguished using the same analysis employed by the Livingston court to distinguish the issue before it from that in Resio. It characterized the waiver colloquy in Resio as follows:
[T]he
defendant personally and on the record waived his right to a jury, pursuant to
sec. 972.02(1) Stats.,
and Krueger;
however, the trial judge never explained to the defendant the need for a
unanimous jury. In other words, the
issue was not whether there was a valid waiver under sec. 972.02(1), Stats.,
and Krueger, but whether the waiver that occurred was
constitutionally valid, i.e., sufficiently knowing and voluntary. Under these circumstances, a postconviction
hearing was the proper remedy.
Livingston, 159 Wis.2d at 574,
464 N.W.2d at 845. The court went on to say that Resio
is “applicable only where a personal waiver of trial by jury has occurred in
accordance with statutory and case law.”
Livingston, 159 Wis.2d at 574, 464 N.W.2d at 845.
The
critical distinction for the Livingston court, and for this court
in determining Grant’s remedy, is whether a personal waiver colloquy actually
took place. We see a marked difference
between cases in which there is no colloquy at all (Livingston)
and cases such as Resio and the one before us in which a colloquy
is held but a component of the colloquy is deficient. In the latter instance, a postconviction hearing is required to
determine whether the defendant actually knew and understood the rights that he
or she was waiving pursuant to the colloquy.
We conclude that the supreme
court’s decision in Bangert sets forth the
appropriate procedural framework to consider in determining whether a jury trial
waiver is knowing and voluntary. Bangert
established the procedure a trial court must follow when a defendant maintains
that the § 971.08, Stats.,
procedure is not undertaken or whenever court-mandated duties are not fulfilled
at the plea hearing.
In Bangert,
the supreme court placed the initial burden with the defendant to make a prima
facie showing that the plea was accepted without the trial court’s compliance
with § 971.08, Stats., or
other mandatory procedures set forth in the Bangert
decision. Where a prima facie showing
is made, and where the defendant alleges that he or she did not know or
understand the information that should have been provided at the plea hearing,
the burden shifts to the State to show by clear and convincing evidence that the
plea was knowingly and voluntarily entered despite the inadequacy of the colloquy at the time of the
plea’s acceptance. The State may use the entire
record to meet its burden, including the testimony of the defendant and defense
counsel. See Bangert,
131 Wis.2d at 274-75, 389 N.W.2d at 26.
Adaptation
of this procedure to the present case means that if Grant can make a prima facie
showing that the jury waiver was defective and that he did not understand the
jury unanimity requirement, the burden then shifts to the State to show by clear
and convincing evidence that Grant in fact voluntarily and intelligently waived
his right to a jury trial. If the State
fails to meet its burden of proof, the conviction must be reversed because
there is nothing in the record to indicate that Grant was in fact properly
apprised of his right to a unanimous jury
verdict or
that he voluntarily and intelligently waived that right. If the State does meet its burden of proof,
the facially defective record is overcome by evidence showing that Grant’s
constitutional right to a jury trial was not violated because he understood his
right to jury unanimity and voluntarily waived that right.
The Bangert
decision itself appears to negate Grant’s assertion that
directives issued pursuant to the supreme court’s supervisory powers create a
strict per se rule which mandates a new trial independent of constitutional
considerations. The court there opined
that “[a] postconviction review
of all relevant evidence may reflect that the plea was constitutionally sound,
even though the colloquy did not meet statutory procedures or satisfy
obligations stemming from our supervisory powers.” Id. at 276, 389
N.W.2d at 27
(emphasis
added).
This
is not the first time the Bangert procedure has been expanded to
provide a remedy for a deficient waiver colloquy. The Bangert procedure has recently been
approved as the appropriate remedy for a defective waiver of right to
counsel. In State v. Klessig,
211 Wis.2d 194, 204-06, 564 N.W.2d 716, 720-21 (1997), the court
considered the defendant’s claim that he did not knowingly and voluntarily
waive his right to counsel at trial where the trial court had not conducted a
colloquy on that issue. The supreme
court mandated a trial court colloquy with the defendant to ensure a valid
waiver of counsel. After setting forth
the rule, it also addressed the appropriate postconviction procedure which
should be undertaken where that mandate was not followed. The court adopted “an evidentiary hearing
procedure for resolving invalid waiver of counsel claims that is similar to the
procedure established by this court for the resolution of guilty plea waivers.” Id. at 207,
564 N.W.2d at 722.
Having
determined that the Bangert procedure is the appropriate remedy
for a Resio violation, we turn to its application in this
case. Here, Grant did not allege in his
postconviction motion—or at any time—that he was in fact unaware of his right
to a unanimous jury verdict at the time he entered his waiver. He has consistently argued that the issue of
knowledge is irrelevant because his claim is not constitutional but rather
hinges on the proposition that a violation of the Resio directive
automatically requires a new trial.
Having relied on the concept of a per se rule¾which we have now
rejected¾Grant
has not attempted to make a record on the issue of the knowing and voluntary
nature of his waiver. This is so even
though the State raised the issue of that deficiency early in the
postconviction proceedings.
The
court in Bangert imposed two threshold requirements upon a
defendant seeking to challenge a plea hearing: first, a showing of a prima facie violation of the
trial court’s statutory and other mandatory duties, and second, an allegation
that the defendant in fact did not know or understand the information which
should have been provided. See
Bangert, 131 Wis.2d at 274,
389 N.W.2d at 26;
State v. Giebel, 198 Wis.2d 207, 216, 541 N.W.2d 815, 818 (Ct. App. 1995).
In Giebel,
the trial court failed to personally address Giebel and verify that he
understood each element of the crimes with which he was charged. See Giebel, 198
Wis.2d at 211, 541 N.W.2d at 817. Giebel brought a motion
for postconviction relief in which he sought to withdraw his plea on the
grounds that the plea colloquy was inadequate because he was not informed of
the elements of the offense of armed robbery.
His motion contained no allegations that he did not know or understand
the elements of armed robbery.
See id. at 217, 541 N.W.2d at 819. After analyzing the requirements under Bangert,
this court held that the defendant’s failure to meet the second threshold
requirement of Bangert was fatal to his postconviction claim and
therefore
affirmed the trial court’s denial of Giebel’s motion to withdraw his plea. See Giebel, 198 Wis.2d at 217,
541 N.W.2d at 819.
Here, Grant stands in the same shoes as the defendant in Giebel. While he has adequately alleged the threshold requirement that there was an inadequate waiver colloquy, he has failed to allege that he was unaware of the jury unanimity requirement. That omission is fatal to his postconviction claim. We therefore affirm the judgment and the trial court’s denial of Grant’s motion for a new trial.
By the Court.¾Judgment and order affirmed.
[1] Circuit Judge Emily S. Mueller is sitting by special assignment pursuant to the Judicial Exchange Program.