COURT OF APPEALS DECISION DATED AND RELEASED July 6, 1995 |
NOTICE |
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. |
No. 94-2967-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
BILLIE T. HILL,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Rock County:
JAMES E. WELKER, Judge. Reversed
and cause remanded.
Before Eich, C.J.,
Gartzke, P.J., and Dykman, J.
PER CURIAM. Billie T. Hill appeals from an order
denying his motion for postconviction relief.
He argues that he did not knowingly, intelligently and voluntarily waive
his right to counsel at a sentencing proceeding. We agree. For the reasons
set forth below, we reverse the order and remand for resentencing.
STANDARD OF REVIEW
Sentencing
lies within the trial court's discretion, and our review is limited to whether
the trial court correctly exercised that discretion. State v. Larsen, 141 Wis.2d 412, 426, 415 N.W.2d
535, 541 (Ct. App. 1987). However,
designating a matter as discretionary is not tantamount to designating it as
unreviewable. Rather, a discretionary
decision will be reviewed to determine whether it is the "product of a
rational mental process by which the facts of record and law relied upon are
stated and are considered together for the purpose of achieving a reasoned and
reasonable determination." Hartung
v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16, 20-21 (1981).
ANALYSIS
In
1991, Hill pled guilty to and was convicted of forgery. The circuit court, Judge Richard Long
presiding, withheld sentence and placed Hill on probation for ten years. In September 1993, the Department of
Corrections revoked Hill's probation.
In March 1994, Hill appeared before the circuit court, Judge James E.
Welker presiding[1], for
sentencing. At the sentencing hearing,
the court asked Hill whether he wanted an attorney and Hill declined. The court sentenced Hill to four years,
consecutive to another sentence he was then serving.[2]
A lawyer must be
"afforded" to indigent persons at revocation of probation or deferred
sentencing because "certain legal rights may be lost if not exercised at
this stage." Counsel can help to
"marshal[ ] facts, introduc[e] evidence of mitigating circumstances and in
general aid[ ] and assist[ ] the defendant to present his case as to sentence
...." Mempa v. Rhay,
389 U.S. 128, 135, 136 (1967). Although
a defendant can waive the right to counsel, "he should be made aware of
the dangers and disadvantages of self-representation, so that the record will
establish that `he knows what he is doing and his choice is made with eyes
open'" Faretta v. California, 422 U.S. 806, 835 (1975)
(citation omitted).
Thus, the record must
disclose that the defendant has "`a general appreciation of the
seriousness of the charge and of the penalties he may be exposed to before
deciding to take a chance on his own skill.'" State v. Pickens, 96 Wis.2d 549, 563, 292 N.W.2d
601, 608-09 (1980). "Unless the
record reveals the defendant's deliberate choice and his awareness of these
facts, a knowing and voluntary waiver will not be found. Id., 96 Wis.2d at 563-64, 292
N.W.2d at 609.
The record of the
sentence hearing reveals that Hill did not know the penalties to which he might
be exposed. Although Hill was made
aware he could have an attorney, he was not made aware of the dangers and
disadvantages of self-representation.
As the State concedes, a formal colloquy helps establish that a
defendant is competent to represent himself.
Such a colloquy was missing in this case, and Hill was not otherwise
made aware of the dangers he faced.
Because the sentencing court failed to elicit the necessary facts to
show whether the waiver was knowing, intelligent and voluntary, it did not
correctly exercise its discretion in imposing sentence. On remand, the circuit court shall vacate
the sentence and conduct a new sentencing hearing.
By the Court.—Order
reversed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] The court disposition was signed by Judge Richard Long on March 21, 1994. The court minutes reveal that Judge Welker presided over the sentencing hearing, and the transcripts reveal that Judge Welker imposed the sentence being appealed. Although the written order memorializing the sentence was signed by Judge Long, the actual sentence appealed from was imposed by Judge Welker.
[2] At
the sentencing hearing, the following colloquy took place:
THE
COURT: The record should show the
appearance of Assistant District Attorney Gerald Urbik for the State of Wisconsin,
the appearance of Mr. Hill in person and in custody and, Mr. Hill, do you have
an attorney in this matter?
THE
DEFENDANT: No, Your Honor. I am presently at Waupun facilities, and
when this happened, I was just returned to court. I didn't know the date or anything like that.
....
THE
COURT: Do you understand what this is
about?
THE
DEFENDANT: Yeah. I am willing to go on with the proceedings.
THE
COURT: Do you want an attorney? Do you want time? I will set it over until Monday and you can talk to a lawyer, or
do you want to proceed without a lawyer?
THE
DEFENDANT: If I could proceed, I would
like to proceed, Your Honor.
THE
COURT: You understand that you have a
right to an attorney and if you are not able to afford an attorney because of
poverty, then an attorney would be appointed to represent you at no cost to
you. Do you understand that?
THE
DEFENDANT: Yes.
THE COURT: And you want to proceed without a lawyer?
THE
DEFENDANT: Yes.
THE
COURT: The Court finds that the right of
counsel is freely, voluntarily, and intelligently waived and, accordingly, Mr.
Urbik, I will hear you regarding sentencing.
After
this finding, the court heard the prosecutor, who recommended that the court
adopt the recommendation of the probation agent, and sentence Hill to the
maximum ten-year sentence on the forgery charge. The court asked Hill whether there was anything he wanted to say. Hill replied that his understanding of the
probation supervising agent was as follows:
THE
DEFENDANT: He recommended my time to be a
moderate sentence and also concurrent time to the time I am now serving and
upon that, that is why I wished to proceed because I was told that. Otherwise, you know, I am lost.
Further colloquy developed that Hill was unaware that the probation agent had recommended ten years, because he was "going on the recommendation at the time of my revocation with the officer that was present with me [and who has since retired] .... This is where I am staying."