COURT OF APPEALS DECISION DATED AND FILED January 10, 2012 A. Acting 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. 2008CF6190 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Wisconsin, Plaintiff-Respondent, v. Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County:
Before
¶1 FINE, J.
I.
¶2 The State charged
THE COURT: Why do you think that?
THE DEFENDANT: … Every time I have one of them I end up in jail, prison.
¶3 The commissioner then asked
¶4
¶5 The next docket entry on the same day as the status
conference reports that a lawyer told the trial court that
¶6 Two days before the scheduled preliminary examination, the State
Public Defender appointed
¶7 At the next court hearing, Obernberger moved to withdraw
because
THE COURT: Sir, you are facing $25,000 in fines and imprisonment for not more than twelve and a half years. You want to represent yourself?
THE DEFENDANT: Yes.
THE COURT: What sort of training have you had, sir?
THE DEFENDANT: I have been in court before and I have done it before.
THE COURT: You go to law school?
THE DEFENDANT: No, I don’t need to go to law school.
THE COURT: What is your educational background?
THE DEFENDANT: Three colleges.
THE COURT: Three colleges? Where did you go to college?
THE DEFENDANT: M.S.O.E.
THE COURT: What did you major in?
THE DEFENDANT: Foundry maintenance.
THE COURT: Where else did you go?
THE DEFENDANT: MATC,
Accounting 1 and 2; and
THE COURT: You have any legal classes?
THE DEFENDANT: No.
THE COURT: How do you expect to handle the trial, sir?
THE DEFENDANT: I been in court before.
THE COURT: How do you mean?
THE DEFENDANT: I been in court trials and told the attorney what to say and what to ask.
THE COURT: Have you ever represented yourself in a court trial?
THE DEFENDANT: If he can ask, why can’t I?
THE COURT: How about a jury trial, you represent yourself?
THE DEFENDANT: They walked me to the bullpen, when he shut the door, when I walked from here to there he opened it and they said not guilty.
THE COURT: Who did?
THE DEFENDANT: The jury.
THE COURT: So you had a lawyer that was able to have you acquitted at a jury trial?
THE DEFENDANT: Yes, he was there.
THE COURT: The lawyer did the work, the lawyer made all of the statements to the jury, the lawyer asked all the questions; you gave him input but the lawyer did all of that, right?
THE DEFENDANT: I wrote down the stuff for him to ask.
THE COURT: Fine, you can do that with
THE DEFENDANT: I don’t need him.
THE COURT: Yes, you do.
THE DEFENDANT: No, I do not.
THE COURT: Sir, I have to, under the law, determine whether or not you are competent to proceed pro se.
THE DEFENDANT: I have been told that I was competent enough to represent myself .…
THE COURT: Who told you that?
THE DEFENDANT: That woman judge ….
THE COURT: Here in Milwaukee County you were allowed to represent yourself?
THE DEFENDANT: Yeah ….
THE COURT: What kind of case was it, sir?
THE DEFENDANT: I forget, retail theft, I think. …
THE COURT: [Was
it Judge]
THE DEFENDANT: That’s her name.
The trial court then told
Obernberger: “I am not letting you
go. He tells me that another judge let
him represent himself, he hasn’t given me any indication that he is capable of
handling a jury trial on a serious felony.” (Paragraphing altered.) “I am not going to let you withdraw, we have
a jury trial set on this matter August 17.”
The trial court then told
¶8 In June of 2009 before the trial, Obernberger requested a
competency examination based on a head injury
II.
¶9 A defendant has a
constitutional right to represent him- or herself. State v. Klessig, 211 Wis. 2d 194, 203, 564 N.W.2d 716,
720 (1997). When a defendant wants to
invoke his constitutional right to represent himself, the trial court must do
two things: first, the trial court must make
sure that the defendant: “has knowingly,
intelligently and voluntarily waived the right to counsel,” and second, the
trial court must make sure the defendant “is competent to proceed pro se.” Id., 211 Wis. 2d at 203–204,
564 N.W.2d at 720. A trial court has
discretion whether to allow a defendant to go to trial without a lawyer, and has
“sufficient latitude to exercise its discretion in such a way as to insure that
substantial justice will result.” Pickens v. State, 96 Wis. 2d 549,
569, 292 N.W.2d 601, 611 (1980), overruled
on other grounds by Klessig (requiring
“a colloquy in every case where a defendant seeks to proceed pro se”) 211 Wis.
2d at 206, 564 N.W.2d at 721. Whether
¶10 The first Klessig step requires the trial court to ensure that the defendant: (1) is deliberately choosing to go to trial without a lawyer; (2) knows the “difficulties and disadvantages of self-representation”; (3) is aware of the seriousness of the charges against him; and (4) knows “the general range of penalties” that he faces, so that any waiver of a lawyer “was knowing, intelligent, and voluntary.” Id., 211 Wis. 2d at 206–207, 564 N.W.2d at 721–722.
¶11 If the first step is satisfied, the second step requires the trial court to make an independent determination of whether the defendant who waives his right to a lawyer is competent to represent himself. Id., 211 Wis. 2d at 208–209, 564 N.W.2d at 722–723. “In Wisconsin, there is a higher standard for determining whether a defendant is competent to represent oneself than for determining whether a defendant is competent to stand trial.” Id., 211 Wis. 2d at 212, 564 N.W.2d at 724. To determine self-representation competency, the trial court “should consider factors such as ‘the defendant’s education, literacy, fluency in English, and any physical or psychological disability which may significantly affect his ability to communicate a possible defense to the jury.’” Ibid. (quoted source omitted). Significantly, a person of “average ability and intelligence” should be able to represent himself “unless ‘a specific problem or disability can be identified which may prevent a meaningful defense from being offered, should one exist.’” Ibid. (quoted source omitted).
¶12 Here, it is clear that Mason’s assertion that he wanted to
represent himself satisfies all parts of the first step of the Klessig
test—Mason was making a deliberate choice to represent himself, knew
the disadvantages, and was aware of the seriousness of the charge and the
potential punishment. When the trial
court asked Mason these questions,
¶13 The trial court, however, did not adequately address the
factors pertinent to the second step in Klessig—whether
¶14 When a trial court has not fulfilled what Klessig tells us are the required steps, we have two options: (1) discern from the Record, on our own, whether both steps were satisfied so that the defendant was either entitled or not entitled to go to trial without a lawyer; or (2) remand to the trial court for that determination. Id., 211 Wis. 2d at 213–214, 564 N.W.2d at 724. The Record does not have sufficient information for us to make a reasoned decision whether Mason was, under Klessig, entitled to represent himself at the trial, given Klessig’s admonition that a person of “average ability and intelligence” should be able to go to trial without a lawyer “unless ‘a specific problem or disability can be identified which may prevent a meaningful defense from being offered, should one exist.’” Id., 211 Wis. 2d at 212, 564 N.W.2d at 724 (quoted source omitted). Accordingly, we reverse and remand this matter to the trial court:
The [trial] court should first determine whether it can
make an adequate and meaningful nunc pro tunc inquiry into the question of
whether [
See id., 211 Wis.
2d at 213, 564 N.W.2d at 724. Among the
matters the trial court should consider is, of course, what effect, if any,
By the Court.—Judgment and order reversed and
cause remanded with directions.
Publication in the official reports is not recommended.
[1] The Honorable M. Joseph Donald handled the initial appearance and status conference. The Honorable Dennis R. Cimpl presided over the preliminary examination and all subsequent proceedings.
[2] Mason’s
motion for postconviction relief asserted:
(1) that the trial court erred by not letting him represent himself
at the trial; and (2) that the trial court should not have imposed a DNA
surcharge as part of Mason’s sentence.
The trial court vacated the DNA surcharge, but denied that it had erred
by not permitting