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COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 27, 1995 |
NOTICE |
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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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
Nos. 95-0926-CR
95-0927-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TALIB AMIN AKBAR,
Defendant-Appellant.
APPEALS from judgments
and orders of the circuit court for Brown County: RICHARD J. DIETZ, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Talib Amin Akbar, pro se, appeals two
judgments convicting him of two counts of second-degree sexual assault,
contrary to § 940.225(2)(g), Stats.,
as a repeater, § 939.62, Stats.,
entered after a jury trial and orders denying postconviction relief. Akbar was charged with having sexual
intercourse with two patients of treatment facilities while he was an employee. Akbar raises three issues on appeal,
whether: (1) the trial court denied Akbar his right to self-representation; (2)
Akbar validly waived his right to counsel; and (3) an inaccurate date in the
summons denied his right to a fair trial.
We affirm.
1.
RIGHT TO SELF-REPRESENTATION
A defendant has a
constitutional right to self-representation.
In re Contempt in State v. Lehman, 137 Wis.2d 65, 77, 403
N.W.2d 438, 445 (1987).
When
a defendant has been permitted to proceed without the assistance of counsel,
the trial judge should consider the appointment of standby counsel to assist
the defendant .... Standby counsel should always be appointed in cases expected
to be long or complicated ....
Id. at
79, 403 N.W.2d at 445 (quoting 1 ABA
Standards for Criminal Justice § 6-3.7 (2d ed. 1980)).
Initially, Abkar
appeared with attorneys appointed for him by the State Public Defenders
Office. He also appeared with privately
retained counsel. In all, he appeared
with five different attorneys before he requested to represent himself. The trial court granted Abkar's request to
represent himself and appointed standby counsel. The trial transcript shows that Akbar represented himself with
the assistance of standby counsel.
Based upon our review of the record, we reject Abkar's contention that
he was denied his right to self-representation.
Abkar cannot claim that
his self-representation amounted to a denial of effective assistance of
counsel. See Faretta v.
California, 422 U.S. 806 (1975).
Absent a Machner hearing, we do not reach his ineffective
assistance of counsel claim based upon the performance of the attorneys who
represented him before his decision to represent himself. Cf. State v. Machner,
92 Wis.2d 797, 804, 285 N.W.2d 905, 908 (Ct. App. 1979) (A prerequisite to a
claim of ineffective assistance of counsel is to preserve trial counsel's
testimony.).
2.
WAIVER OF RIGHT TO COUNSEL
A defendant's waiver of
his right to counsel must be voluntarily, competently and intelligently
made. Godinez v. Moran,
113 S.Ct. 2680, 2687 (1993). Abkar,
employed as a nursing assistant, had numerous colloquies with the court
demonstrating a competent and intelligent waiver. The record reflects no suggestion of any issue with respect to
Akbar's mental capacity to proceed. Cf.
Godinez, 113 S.Ct. at 2688 n.13 ("As in any criminal case, a
competency determination is necessary only when a court has reason to doubt the
defendant's competence."). Here,
no competency hearing was necessary.
The record demonstrates
Akbar's recognition of the complexities of the case and that he believed that
he was able to present his own defense.
For example, he stated "I would like to address the Court based
upon my knowledge of the legal process and I've been here many times and I
think ... in reference to severance I'm capable of representing myself
...." Abkar successfully argued
his pro se pretrial motion for severance.[1] The record reflects Akbar's numerous court
experiences, both before these charges were filed as well as after commencement
of the proceedings. This is not a case
involving an illiterate or unsophisticated defendant. As Akbar stated:
TALIB AKBAR: Your
Honor, we've gone through this and I've -- I've given you an opportunity to do
so. They keep giving me these people
from the Public Pretender's Office (sic) and I have asked time and again that I
don't want any individual from that particular office because there -- I know
those people and they know me and so there's a prejudicial factor base upon
that them hiring me attorneys from that office. I don't trust 'em and that's just it. I would rather represent myself or a -- allow me time to hire a
private counsel. If not, then you
appoint me a stand-by counsel but I do not want anyone from the Public
Pretender's Office (sic) to represent me.
Based
on the record before us, we conclude that Akbar intelligently and competently
waived his right to counsel.
3. DEFECTIVE SUMMONS
Finally, Akbar argues
that because the summons was dated twelve days prior to the date of one of the
criminal complaints, he is entitled to reversal. Because the record reflects no resulting prejudice, his argument
is without merit. See
§ 971.26, Stats.
By the Court.—Judgments
and orders affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.