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COURT OF
APPEALS DECISION DATED AND
RELEASED March
19, 1997 |
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 pursuant to § 808.10, Stats., within 30 days hereof,
pursuant to 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. |
No.
96-0331-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff‑Respondent,
v.
LEALON
R. KNECHT,
Defendant‑Appellant.
APPEAL
from a judgment and an order of the circuit court for Manitowoc County: ALLAN J. DEEHR, Judge. Affirmed.
Before
Brown, Nettesheim and Anderson, JJ.
PER
CURIAM. Lealon R. Knecht appeals from
a judgment of conviction of four counts of felony nonsupport and an order
denying his motion for postconviction relief.
The issues on appeal are whether Knecht was entitled to a competency
evaluation, whether he made a valid waiver of the right to counsel and the
right to testify, and whether the sentence imposed was an erroneous exercise of
discretion. We affirm the judgment and
the order.
On
January 9, 1995, Knecht made his initial appearance before the trial
court. The appearance was continued in
order to provide Knecht with an adequate opportunity to obtain counsel,
something Knecht indicated that he wanted to do. Knecht appeared on January 23, 1995, without counsel. He explained that he had made efforts to
obtain an attorney and that he was still working on it. The appearance was continued to February 6,
1995. When Knecht again appeared
without counsel, a preliminary hearing was set. Knecht was advised by the court that the preliminary hearing
would go forward regardless of whether he had successfully obtained counsel by
that date. The preliminary hearing was
held on February 15, 1995, and Knecht was without counsel. At the arraignment on February 27, 1995, the
criminal information was read and the court entered a plea of not guilty upon
Knecht’s response that “I cannot plead, sir.”
The
jury trial was set for March 23, 1995.
On March 17, Knecht sought an extension of time to allow him time to
prepare. Although the motion indicated
that Knecht had not been able to secure effective counsel, it did not indicate
that Knecht was continuing his efforts to obtain counsel. The trial was held. Knecht proceeded without an attorney. Knecht was represented by counsel on the
postconviction motion and on appeal.
Knecht
first argues that the trial court erred in finding that there was no reason to
doubt Knecht’s competency to proceed to trial.
The issue was raised in Knecht’s postconviction motion. Knecht sought an evidentiary hearing on his
claim that he was incompetent to proceed.
Whenever
there is reason to doubt a defendant’s competency to proceed, the trial court
must order an examination of the defendant under § 971.14, Stats.
See State v. Garfoot, No. 94-1817-CR, slip op. at 6
(Wis. Feb. 4, 1997). The basic test for
determining competency under § 971.14 is whether the defendant possesses
sufficient present ability to consult with his or her lawyer with a reasonable
degree of rational understanding and whether he or she possesses a rational as
well as factual understanding of the proceeding against him or her. See Garfoot, slip op.
at 7. “The trial court’s determination
of whether there is reason to doubt the defendant’s competence and order an
examination is disturbed on appeal only if the trial court exhibited an
erroneous exercise of discretion or if the trial court decision was clearly
erroneous.” Id., slip op.
at 9.
Knecht
contends that three indicators gave rise to a reason to doubt his
competency. The first is the trial
court’s own observation at the initial appearance that Knecht had trouble
understanding the proceedings. The
trial court attempted to explain to Knecht the purpose of the preliminary
examination, the next step in the criminal proceeding. Upon Knecht’s second indication that he did
not understand the proceeding, the trial court remarked, “Perhaps we should
have a competency evaluation. I mean,
if you are having trouble ....” Knecht
responded, “Are you trying to intimidate me, sir?” At no other proceeding did the trial court express any
reservations about Knecht’s competency.[1]
The
trial court’s singular expression of concern about competency does not
establish a reason to doubt competency.
Knecht’s response to the trial court about attempted intimidation was
indicative of Knecht’s ability to understand the magnitude of questioning his
competency. Moreover, that hearing and
others continued with Knecht demonstrating a sufficient degree of understanding
and an ability to participate in a rational and coherent manner. Although Knecht got hung up on the licensing
requirements for attorneys, that did not detract from his ability to understand
the progress of the criminal proceedings.
The record reflects not that Knecht did not understand the proceedings,
but that he vehemently disagreed with the trial court’s jurisdiction over him.
Knecht
points to the affidavits filed in support of his postconviction motion from two
persons familiar with Knecht’s belief system and conduct in defending the
nonsupport charges. One affidavit
offered the opinion that Knecht, during the pendency of the criminal
proceeding, was not capable of defending himself, of understanding his right to
a lawyer, or of understanding the seriousness of the charges “in light of the
actual law, rather than the law as [Knecht] had fantasized it to be.” The other affidavit asserted that Knecht was
vulnerable to the influence of a person using Knecht for the political purpose
of advancing a radical ideology. It
also stated that Knecht’s belief “about marriage being a sacrament between a
man and woman, which government had no business to interfere with, totally
clouded and prevented [Knecht] from substantially understanding the seriousness
of the charges and impaired him in his ability to represent himself or to even
advise a lawyer.”
The
affidavits make clear that Knecht held inflexible religious and political
beliefs about the legal system and its ability to prosecute him. Although those beliefs made it difficult for
Knecht to follow the system, they did not render him unable to understand the basics
of the proceeding. In fact, Knecht
filed numerous documents advancing his theories of why the prosecution was
without a basis in an understandable, albeit meritless, fashion. Knecht now relies on his infusion of “mumbo
jumbo” and the bizarre legal theories as evidence of his inability to
understand the proceeding. That
Knecht’s documents lacked any legal merit does not translate into a reason to
doubt his competency, but rather demonstrate the fervor with which he clung to
his beliefs as a defense.
Knecht
also bases his claim that a reason to doubt competency at the time of trial
existed on appellate counsel’s interview and opinion that competency is at
issue. “[A]n attorney’s statement that
he questions his client’s competency is not a controlling factor for initiating
competency proceedings.” State v.
Weber, 146 Wis.2d 817, 826, 433 N.W.2d 583, 587 (Ct. App. 1988). Here, counsel’s assessment, made months
after the proceeding, flies in the face
of the contemporaneous record of the proceedings. Knecht was able to participate in the proceeding with a sufficient
understanding; he gave an opening and closing argument and cross-examined
witnesses at trial. The trial court in
postconviction proceedings recognized that the beliefs held by Knecht were
shared by others. It found Knecht to be
“intransigent” rather than potentially incompetent. We defer to the trial court’s assessment of the defendant’s
demeanor. See id. at 823,
433 N.W.2d at 585. In short, Knecht’s
unique belief system did not give rise to a reason to doubt his
competency. It was not error to refuse
a psychological evaluation or an evidentiary hearing.
The
next issue is whether Knecht can be held to have waived his right to counsel
absent a colloquy with the trial court about such a waiver. Generally a defendant can proceed pro se
only if the circuit court first determines that the defendant voluntarily and
knowingly waived his or her right to counsel.
See State v. Cummings, 199 Wis.2d 721, 752, 546
N.W.2d 406, 418 (1996). Nonwaiver is
presumed. See id. 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. See 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.
See id.
There
was no colloquy between the trial court and Knecht to determine whether the
waiver of counsel was knowingly and voluntarily made. That type of colloquy is preferred. However, we may look to the record to determine if the defendant
made a knowing and voluntary waiver. See
State v. Klessig, 199 Wis.2d 397, 404, 544 N.W.2d 605, 608 (Ct.
App. 1996). In unusual circumstances,
particularly those involving a manipulative or disruptive defendant, the court
may find that the defendant's voluntary and deliberate choice to proceed pro se
has occurred by operation of law. See
Cummings, 199 Wis.2d at 752, 546 N.W.2d at 418.[2]
Knecht’s
initial appearance was twice adjourned to provide him with the opportunity to
obtain counsel. At each appearance
Knecht was advised of his right to counsel.
At the second appearance, Knecht advised the court that he had made
contact with a few attorneys but had not found anyone to effectively represent
him. The trial court expressed concern
that Knecht was causing unnecessary delay and impressed upon Knecht the need to
make obtaining counsel a top priority.
The court acknowledged that Knecht might not find an attorney who shared
Knecht’s philosophy about the government’s lack of authority. Knecht was advised that after two more weeks
to obtain counsel, it would be the “end of the rope.” On the third date, about a month after the first adjournment,
Knecht was advised that the preliminary hearing would go forward regardless of
whether he had obtained counsel.
At
trial, the court went through the history of the case and determined that
Knecht’s efforts to obtain counsel were not in good faith and were for the
purpose of delaying the prosecution.
The court found that Knecht had never sought or been denied legal
representation by the state public defender.
If further found that by his motions before the court, Knecht
demonstrated that he wanted to have someone represent him who was not a
licensed attorney. The court could not
permit such representation and Knecht had been advised of that early in the
proceeding.[3] The court found that Knecht never had any
good faith intent of obtaining legal counsel.
These findings are not clearly erroneous. See § 805.17(2), Stats. Indeed, Knecht went ahead and filed a
plethora of pretrial motions advancing his unusual beliefs and objections.
We
conclude that any attempt to have a colloquy with Knecht about the waiver of
right to counsel would have been futile.
The record establishes that Knecht knew of his right to counsel, that he
was given an adequate opportunity to obtain counsel, and that he chose not to
obtain counsel. Knecht’s motion to
adjourn the trial was not based on a desire to obtain counsel. Knecht’s actions speak louder than words. The waiver of counsel occurred by operation
of law. It was not necessary for the
trial court to engage in a separate inquiry of Knecht’s ability to effectively
represent himself when there was no doubt as to his competency to stand
trial. See Klessig,
199 Wis.2d at 405, 544 N.W.2d at 609.
Knecht
argues that there was no meaningful colloquy on his waiver of his right to
testify on his own behalf.[4] It is not necessary that the trial court
undertake an on-the-record colloquy concerning the defendant’s waiver of the
right to testify. See State v.
Wilson, 179 Wis.2d 660, 671‑72, 672 n.3, 508 N.W.2d 44, 48 (Ct.
App. 1993), cert denied, 115 S. Ct. 100 (1994). All that is necessary is that the record
support a knowing and voluntary waiver of the defendant’s right to
testify. See id.
at 671‑72, 508 N.W.2d at 48.
At
the close of the prosecution’s case, the trial court informed Knecht of his
right to testify in his own behalf and the consequential waiver of his Fifth
Amendment privilege. The court further
advised Knecht that he was not obligated to prove anything, that the
prosecution had the burden of proof, and that in the absence of his testimony,
the prosecution could not comment on his failure to testify. The court also went through the available
defenses to the nonsupport charges. Although
Knecht expressed concerns about how he would present his testimony without an
attorney to ask him questions, the court indicated that some leeway would be
allowed so that Knecht could just tell his story. Knecht’s only inquiry about his right to testify was whether he
would be able to address the jury on his theory of the law, presumably his
claim that the government lacked jurisdiction to interfere in his family
relationship. After the trial court
explained that matters of law could not be addressed, Knecht declined to
testify.
We
reject Knecht’s characterization of the exchange about the right to testify as
“murky” and “unclear.” The trial court
gave a sufficient amount of information to Knecht. It was not obligated to advise Knecht on whether he should
exercise his right to testify. We
conclude that the record establishes a knowing and voluntary waiver.
The
final issue is whether the trial court erroneously exercised its discretion at
sentencing when it proceeded without a presentence investigation report. Knecht was sentenced to the maximum, a total
of eight years’ imprisonment for the four counts of nonsupport. A presentence report was not ordered upon
the trial court’s finding that Knecht would not cooperate in providing
information for the report.
Whether
to order a presentence report is within the discretion of the trial court. See Harris v. State, 78
Wis.2d 357, 371, 254 N.W.2d 291, 298‑99 (1977). The record establishes Knecht’s aversion to the authority of the
court to act in any respect. The
finding that a presentence report would have been a meaningless exercise is not
clearly erroneous. The trial court
properly exercised its discretion in proceeding without a report.[5]
Sentencing
is committed to the discretion of the sentencing court and appellate review is
limited to determining whether there was a misuse of discretion. See State v. J.E.B.,
161 Wis.2d 655, 661, 469 N.W.2d 192, 195 (Ct. App. 1991). Appellate courts have a strong policy
against interference with that discretion.
See id.
Thus, we begin with the presumption that the trial court acted
reasonably and the appellant must show some unreasonable or unjustifiable basis
in the record for the sentence complained of.
See State v. Petrone, 161 Wis.2d 530, 563, 468
N.W.2d 676, 689 (1991). The three
primary factors to be considered are the gravity of the offense, the character
of the offender and the need for protecting the public. See State v. Harris,
119 Wis.2d 612, 623, 350 N.W.2d 633, 639 (1984).
Knecht
argues that the court placed too much emphasis on his political and social
beliefs as a basis for imposing the maximum sentence. We disagree. The trial
court focused on Knecht’s intentional refusal to acknowledge and pay his child
support obligations. The court found
that Knecht had no intention of changing his behavior with respect to making
payments. Probation was rejected because
of the court’s familiarity with Knecht’s unwillingness to conform to the
law. Although Knecht’s religious and
political beliefs underlie his refusal to pay support, the trial court did not
punish Knecht for possessing those beliefs.
The offense was deemed substantial because of the substantial amount of
money due.
We
conclude that the sentence was based on appropriate factors and the facts of
record. Imposition of the maximum
sentence in these circumstances is not shocking and certainly not without a
basis. See State v. Spears,
147 Wis.2d 429, 446, 433 N.W.2d 595, 603 (Ct. App. 1988) (a sentence may be
excessive when it shocks public sentiment and violates the judgment of
reasonable people concerning what is right and proper under the circumstances).
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5,
Stats.
[1] Knecht appeared before Judge Fred Hazlewood
at the hearings held in January 1995.
Reserve Judge Eugene McEssey presided over a continued initial
appearance and the preliminary hearing in February. Judge Allan J. Deehr presided over the arraignment. Trial was held before Judge Hazlewood.
[2] We
reject Knecht’s contention that State v. Cummings, 199 Wis.2d
721, 546 N.W.2d 406 (1996), cannot be applied retroactively. It did not create new legal standards.
[3] Only a
member of the Wisconsin bar or someone accompanied by a member of the bar may
appear on behalf of another in state court.
See State v. Olexa, 136 Wis.2d 475, 481, 402 N.W.2d
733, 736 (Ct. App. 1987).
[5] Knecht
did not make an offer of proof as to the information he now claims was missing
from the sentencing proceeding. We note
that his allocution to the court at sentencing included his explanation for the
offenses (the inability to pay) and a rendition of his personality traits and
lifestyle. We would be hard pressed to
conclude that the trial court was uninformed.