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COURT OF APPEALS DECISION DATED AND RELEASED November 28, 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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0585-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DANIEL J. BALINT,
Defendant-Appellant.
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No. 95-1756-CR
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DANIEL J. BALINT,
Defendant-Appellant,
JOSH L. BURGER, PHILIP
J. BUYNO,
GREGORY CHESMORE,
THERESA ANN DEFOUW,
BRIDGET S. FOGARTY,
ANNE J. FRANCZEK,
LUCY E. JUDGE, JAMES
A. KETCHUM,
REBECCA A. LINDSTEDT,
DAVID R. MARRIS,
MARY C. MATUSKA,
THOMAS DALE NOWACK,
COLEEN GALE SKOTT,
REBECCA A. THOMPSON and
JOHN P. ZECCA,
Defendants.
APPEAL from judgments of
the circuit court for Milwaukee County:
GEORGE W. GREENE, JR., Judge. Reversed
and causes remanded with instructions.
WEDEMEYER, P.J.[1] Daniel J. Balint appeals from judgments of
conviction, entered after a jury convicted him of obstructing an officer, as
party to the crime, and disorderly conduct, as party to the crime, contrary to
§§ 946.41(1), 947.01, and 939.05, Stats. Balint claims he was denied his
constitutional right to counsel.
Because there is nothing in the record to demonstrate that Balint
knowingly and voluntarily waived his right to counsel, this court agrees that
Balint was denied his constitutional right to representation. Accordingly, the judgments are reversed and
these cases are remanded for a new trial.
I. BACKGROUND
Balint was charged with
obstructing an officer, as party to the crime and with disorderly conduct, as
party to the crime. Throughout the
proceedings relating to each charge, Balint repeatedly indicated that he wanted
to be represented by counsel. He did
receive initial representation from a public defender. However, the public defender moved to
withdraw shortly before the trial date.
The trial court granted his request to withdraw, and instructed Balint
to retain another public defender. It
is undisputed that Balint took all the necessary steps to obtain another public
defender, but proceeded to trial on both charges before another attorney could
be appointed to represent him.
He was convicted on both
charges. He now appeals.
II. DISCUSSION
Whether Balint was
denied a constitutional right raises issues of constitutional fact which this
court reviews de novo. State v.
Dean, 163 Wis.2d 503, 511, 471 N.W.2d 310, 313-14 (Ct. App. 1991).
A defendant is
guaranteed a right of representation under the Sixth Amendment, whether that
representation is by counsel or pro se.
Faretta v. California, 422 U.S. 806, 807 (1975). In order for a defendant to chose pro se
representation, the trial court must first determine: (1) that the
defendant knowingly and voluntarily waived his right to counsel; and
(2) that the defendant is competent to proceed pro se. Faretta, 422 U.S. at 835.
The records in these
cases demonstrate that Balint repeatedly indicated that he wanted to be
represented by counsel. The trial court
did not engage Balint in any colloquy to determine whether he was knowingly and
voluntarily waiving his right to counsel.
The State agrees that said colloquy did not take place. Further, there is nothing in the records
which would lead this court to conclude that Balint manipulated the system or
obstructed the process with respect to retaining representation. He attempted to secure counsel through the
public defender's office but, for unknown reasons, the public defender's office
failed to provide Balint with counsel in time for his trials.
Accordingly, this court
concludes that Balint was denied his constitutional right to representation. Therefore, this court reverses his judgments
of conviction and remands to the trial court for a new trial on both charges.
By the Court.—Judgments
reversed and causes remanded with instructions.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.