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COURT OF APPEALS DECISION DATED AND RELEASED May 29, 1996 |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
Nos. 95-3434
95-3435-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MICHAEL P. STEFKO,
Defendant-Appellant.
APPEALS from judgments
and an order of the circuit court for Walworth County: ROBERT J. KENNEDY and MICHAEL S. GIBBS,
Judges. Affirmed.
SNYDER, J. Michael
P. Stefko appeals from judgments of conviction and an order denying his motions
for postconviction relief.[1] Stefko argues that his conviction for
disorderly conduct in an earlier case was invalid because it was obtained
without the assistance of counsel and without a valid waiver of his right to
counsel. He then posits that his guilty
plea to disorderly conduct in the instant case was not knowingly entered
because at the time he made that plea, he was not aware that the repeater
charge was based, in part, on an invalid misdemeanor conviction.
We conclude that Stefko
waived the right to be represented by counsel in the earlier case by his
dilatory conduct and failure to retain the services of an attorney. Therefore, the second issue of whether the
entry of the guilty plea in the instant case was made knowingly and voluntarily
fails. Accordingly, we affirm.
On January 27, 1992,
Stefko was arrested and charged with battery and disorderly conduct. He made an initial appearance on January 31
without counsel. At that appearance the
trial court apprised Stefko of his right to counsel and referred him to the
state public defender's office. A
continued initial appearance date was set for February 5.
On February 5, Stefko
again appeared without counsel. When
the trial court inquired as to whether Stefko was representing himself, he
responded that he had an attorney who could not make it to the appearance and
that he had been instructed to plead not guilty. Although the court attempted to ascertain the name of the
attorney, Stefko was only able to provide the court with a first name. Stefko entered a not guilty plea and the
case was set for pretrial on April 6.
Stefko was told to provide his attorney with the pretrial date and to
return to court on that date. He stated
that he would notify his attorney that afternoon.[2]
Stefko missed a scheduled
appearance on August 10, 1992, and a bench warrant was issued for his
arrest. He was arrested on August 27
and made a pro se appearance. Stefko's
stated excuse for missing the August 10 court date was that he thought the
appearance was scheduled for August 6.
Stefko was released on a signature bond and told to return to court on
September 22 for a bail forfeiture hearing.
Stefko appeared without
counsel at the bail forfeiture hearing.
The court allowed a continuance of the signature bond and confirmed that
Stefko understood he had to be present for his trial.
On November 12, 1992,
Stefko appeared for the jury trial without counsel. The trial court entered into a colloquy with Stefko regarding a
waiver of his right to counsel. Throughout
questioning by the court, Stefko continued to make excuses for the fact that he
did not have an attorney.
Stefko was specifically
asked, inter alia, whether he elected to proceed without counsel, to which he
responded, “Yes.” The court then
informed Stefko that the trial would not be delayed because he had neglected to
arrange for counsel, and Stefko indicated that he understood this. The trial court questioned Stefko
extensively as to why he had not appeared with an attorney and received
numerous excuses. We conclude that the
court determined that Stefko had waived his right to counsel by his conduct and
proceeded to call the case.
On February 20, 1995, in
the instant case, Stefko entered guilty pleas to charges of battery and
disorderly conduct as a repeater. He
was represented by counsel. The court
conducted the appropriate colloquy to determine whether the pleas were made
knowingly, intelligently and voluntarily.
The State submitted the judgments of conviction showing Stefko's
repeater status and he acknowledged his status as a repeater at that hearing.
Stefko was sentenced to
nine months in the county jail on the battery charge and received a consecutive
three-year prison sentence on the disorderly conduct charge, as a repeater,
which was stayed. Stefko now appeals on
grounds that the repeater enhancement was based, in part, on an invalid
conviction for the 1992 charges (in which he was not represented by counsel)
and because of that his guilty plea on the disorderly conduct charge was not
knowingly entered.
The question of whether
a defendant has waived the right to counsel requires the application of
constitutional principles to the facts of the particular case. State v. Verdone, 195 Wis.2d
476, 480, 536 N.W.2d 172, 173 (Ct. App. 1995).
We review this independently of the trial court. Id. While a waiver must be clear and unequivocal in order to be
valid, a defendant is also required to assert the right to counsel in a timely
manner, mindful of the efficient administration of justice. See id.
In addition, there are
many instances in which a trial court may be wholly justified in requiring a
defendant to proceed with trial on the day appointed and without further
delay. See id. It is also possible for a defendant to waive
the right to counsel because the defendant has deemed by his or her own actions
that he or she will proceed pro se. State
v. Woods, 144 Wis.2d 710, 715-16, 424 N.W.2d 730, 732 (Ct. App.
1988). In such a case, the deliberate
choice to proceed pro se occurs by operation of law, not by virtue of the
individual's express verbal consent. Id.
In Woods,
the defendant argued that the trial court had not obtained a valid waiver of
counsel but conceded that he had not been willing to do so. Id. at 714, 424 N.W.2d at
731. In the alternative, the defendant
maintained that the court should have determined that he made a deliberate
choice to proceed pro se, again conceding that he had not been willing to do
so. Id. at 714, 424
N.W.2d at 731‑32. The supreme
court concluded that “[t]he trial court cannot be held to such unattainable
requirements.” Id. at 714,
424 N.W.2d at 732. The court further
noted that the right to counsel should not be manipulated so as to “obstruct
the orderly procedure of the courts or to interfere with the administration of
justice.” Id. at 715, 424
N.W.2d at 732.
In the instant case,
Stefko failed to retain counsel for any proceedings.[3] Pretrial hearings spanned eleven months, and
Stefko was forewarned that the jury trial would proceed on the next scheduled
date. Despite these warnings he did not
retain an attorney.
Our independent review
of the record convinces us that this case is controlled by Woods. The trial court gave Stefko numerous
continuances to allow him to appear with counsel and repeatedly advised him of
his responsibility to secure representation.
After eleven months and the arrival of the trial date, the court was
left without options. We conclude that
Stefko waived his right to counsel, both affirmatively and through his own
actions. See id.
at 715-16, 424 N.W.2d at 732.
Stefko contends that the
supreme court's holding in Keller v. State, 75 Wis.2d 502, 249
N.W.2d 773 (1977), and our more recent holding in Verdone dictate
a different result. He maintains that
because of “the protecting duty imposed upon the trial court,” see Keller,
75 Wis.2d at 508, 249 N.W.2d at 776, and the fact that the record gives “no
indication whatever that Mr. Stefko's appearance on the day of trial without an
attorney was for purposes of delay or to interfere with the administration of
justice,” see Verdone, 195 Wis.2d at 482, 536 N.W.2d at
174, we are now required to reverse the earlier conviction. We disagree.
In Keller,
the defendant was represented by counsel at the preliminary hearing and
arraignment. Keller, 75
Wis.2d at 504, 249 N.W.2d at 774. On
the day of trial, the defendant appeared without counsel and informed the court
that he had a new attorney, but that the attorney was deer hunting. During its colloquy with the defendant, the
trial court failed to fully consider whether there was a waiver of the right to
counsel and failed to consider the constitutional rights of the defendant. Id. at 511-12, 249 N.W.2d at
778. Because the record was devoid of
“relevant inquiries into the nature and intent of [the defendant's] actions and
conduct,” the supreme court was unable to determine whether the finding of
waiver was valid. Id. at
509, 249 N.W.2d at 777.
In the more recent case
of Verdone, the public defender's office had informed the court
two weeks prior to trial that the defendant had requested counsel.[4] Verdone, 195 Wis.2d at 481,
536 N.W.2d at 174. The public
defender's office and the trial court then discussed the difficulty of finding
an attorney for the defendant. At
trial, the defendant continued to assert his right to counsel. Id. at 482, 536 N.W.2d at
174. In reaching our decision to remand
for a new trial, we noted that the trial court made no affirmative showing that
the defendant's request for counsel was untimely or asserted for purposes of
delay. Id.
Stefko's claim is not
analogous. He agreed that he had
elected to proceed pro se. The court
questioned him extensively regarding his attempts to secure counsel, both
through the public defender's office and independently. The court noted that he had been charged
eleven months prior to the trial. The
court stated, “[Y]ou just have neglected to [retain an attorney] ... and this
is your day in court. It's your own
lookout and if you want to proceed without a lawyer, then good luck.”[5] Our review of the record convinces us that
the trial court conducted appropriate and extensive questioning of Stefko
concerning his pro se status and his right to counsel.
Having concluded that
the 1992 misdemeanor conviction was not invalid, Stefko's claim that his guilty
plea in the instant case was not knowingly and voluntarily made must also
fail. At the time the plea was entered,
the trial court engaged Stefko in a colloquy concerning the rights he was
waiving.[6] The court determined that Stefko had gone
over the guilty plea questionnaire with his attorney. Both Stefko and his attorney acknowledged his repeater status,
including the November 12, 1992, conviction.
In sum, we conclude that
the trial court correctly determined that Stefko had waived his right to
counsel through his conduct. The trial
court's requirement that Stefko proceed pro se in the earlier case was
therefore proper. Consequently,
Stefko's claim that his guilty plea to the disorderly conduct charge in the
instant case was not knowingly and voluntarily made is without merit.
By the Court.—Judgments
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] Stefko pled guilty to charges of simple battery contrary to § 940.19(1), Stats., and disorderly conduct as a repeater contrary to §§ 947.01 and 939.62(1)(a), Stats. He then brought a § 974.02, Stats., motion for postconviction relief, as well as a § 974.06, Stats., motion. These were consolidated by the trial court, and a single order was issued in response to both.
[2] The record does not include a transcript of the April 6, 1992, hearing. The State offers in its statement of facts that Stefko appeared at that hearing without counsel. Stefko does not dispute this. The State also references a hearing on June 8, 1992, and notes that Stefko appeared without counsel. While that transcript is not included in the record, Stefko again does not dispute a pro se appearance.
[3] While we note that the record does not include transcripts for every court appearance Stefko made over the eleven months between the filing of charges and the trial, he does not dispute the State's position that he never made an appearance with counsel.
[4] The defendant had previously waived his right to counsel. State v. Verdone, 195 Wis.2d 476, 481, 536 N.W.2d 172, 174 (Ct. App. 1995).