PUBLISHED OPINION
Case No.: 95-1938-CR
†Petition
for Review Filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CHAD A. KLESSIG,
†Defendant-Appellant.
Submitted on Briefs: December 11, 1995
Oral Argument:
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: January 17, 1996
Opinion Filed: January
17, 1996
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Brown
(If "Special", JUDGE: Richard Greenwood
so indicate)
JUDGES: Cane,
P.J., LaRocque and Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the
defendant-appellant the cause was submitted on the briefs of Robert J.
Miller of Green Bay.
Respondent
ATTORNEYSFor the
plaintiff-respondent the cause was submitted on the brief of James E. Doyle,
attorney general, and Diane M. Nicks, assistant attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED January 17, 1996 |
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(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. 95-1938-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CHAD A. KLESSIG,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Brown County:
RICHARD GREENWOOD, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Chad A. Klessig appeals
a judgment of conviction for one count of party to the crime of burglary. Klessig contends that the trial court erred
by failing to conduct a hearing on Klessig's waiver of his constitutional right
to counsel and his competency to proceed pro se. Because Klessig has not alleged that he was prejudiced by the
trial court's failure to inquire whether the waiver of his right to counsel was
knowing and voluntary and the trial court is not required to inquire into a defendant's
competency to represent himself, we affirm the judgment of conviction.
The
State charged Klessig with one count of bail jumping and one count of being a
party to the crime of burglary. Klessig
waived his preliminary hearing and was bound over for trial. Klessig's court-appointed attorney later
moved for permission to withdraw as counsel and the motion was granted. The state public defender's office appointed
a new attorney who was also permitted to withdraw with Klessig's approval. The public defender's office subsequently
advised Klessig that it would not appoint additional counsel in view of his
discharge of the two previously appointed attorneys and asked that he contact
it about his latest attorney continuing his representation. Klessig wrote the court and the public
defender's office advising them that he would be acting as his own counsel and
that he was prepared for trial on the scheduled trial date. The trial court appointed stand-by counsel
for Klessig and permitted Klessig to conduct his own defense. The State proceeded to trial on the burglary
count and Klessig was convicted after a jury trial.
Klessig now contends
that the trial court failed to establish that Klessig made a knowing and
intelligent waiver of his right to counsel and that Klessig was competent to
proceed pro se.[1] We review the issue of whether Klessig
effectively waived his constitutional right to counsel de novo because it
raises issues of constitutional fact. See
State v. Haste, 175 Wis.2d 1, 23, 500 N.W.2d 678, 687
(Ct. App. 1993).
The
United States Supreme Court has determined that the Sixth Amendment right to
counsel encompasses a defendant's right to proceed pro se. Faretta v. California, 422
U.S. 806, 819 (1975). In order to
represent himself, the accused must knowingly and intelligently waive his right
to counsel. Id. at
835.
Klessig contends that
the absence of a colloquy between the court and the defendant in regard to his
request to represent himself and waive his right to counsel requires a reversal
of his conviction. Unquestionably the
court is obligated to inquire whether the waiver was knowingly and voluntarily
made. See Pickens v. State,
96 Wis.2d 549, 561-62, 292 N.W.2d 601, 608 (1980). It is equally clear that the record in this case contains no
inquiry indicating that the waiver was knowing and voluntary. The question before us is the result of the
court's failure to make such an inquiry.
We first note that the
defendant does not assert that he was unaware of the implications of his waiver
of counsel or that the waiver was not entirely voluntary. The defendant's position is that the absence
of the inquiry standing alone and with nothing more compels reversal. We disagree. When a court fails to comply with mandated procedure, the
defendant is obligated to make a prima facie showing that he has been
prejudiced by the omission. See State
v. Bangert, 131 Wis.2d 246, 274, 389 N.W.2d 12, 26 (1986). If a prima facie showing is made, the burden
shifts to the State to prove by clear and convincing evidence that the waiver
of counsel was knowingly and voluntarily made.[2] See id. at 274-75, 389
N.W.2d at 26. Without a prima facie
showing or even a contention that he did not have the knowledge and
understanding necessary for him to voluntarily and intelligently waive his
right to counsel, Klessig's rights have not been prejudiced and the court's
omission is nothing more than harmless error.
See id.
We recognize that there
is a split of authority in the federal courts as to whether harmless error
analysis applies to waiver of the right to counsel. Compare Richardson v. Lucas, 741 F.2d 753,
757 (5th Cir. 1984) (applying harmless error analysis) and United
States v. Gipson, 693 F.2d 109, 112 (10th Cir. 1982) (same) with
Abdullah v. Groose, 44 F.3d 692, 696 (8th Cir. 1995) (harmless
error doctrine is inappropriate in this context). We conclude that this issue is resolved in Wisconsin by Bangert,
which applies harmless error analysis to a broad spectrum of constitutional
rights. We see no reason why Bangert
should not apply to the waiver of counsel.
We believe not every
technical error should result in a windfall by reversing the conviction of a
defendant who has not been prejudiced by the error. The error should not be conclusively presumed to be
prejudicial. The defendant has an
obligation to make at least a minimal showing that the court's omission has in
some way affected his rights. The
burden of asserting a claim of prejudice or making a prima facie showing that
his rights have been affected by the error is not so great as to adversely
affect the State's conscientious effort to comply with the requirements of
law. Because the defendant need only
make a prima facie showing of prejudice and the State bears the burden of
proving by clear and convincing evidence that the waiver was knowing and
voluntary, we believe the State will make conscientious efforts to assist the trial
court in meeting its obligations. Our
holding that every technical failure does not compel reversal is consistent
with the Bangert analysis and the integrity of the judicial
process.
Further, we may look to
the record to determine whether the defendant made a knowing and voluntary
waiver of his right to counsel. See
Pickens, 96 Wis.2d at 563, 292 N.W.2d at 609. In this case, the request to waive counsel
came from the defendant by a letter to the court. Stand-by counsel was appointed and the defendant availed himself
of counsel's assistance during the trial.
This defendant demonstrated a level of understanding and sophistication
in his self-representation that is consistent with a knowing and voluntary waiver
of his right to counsel. In the absence
of an assertion that he was prejudiced by the court's failure to make an
inquiry and in light of a record that demonstrates a basic understanding of our
legal system, we conclude that the court's failure to make an inquiry does not
compel the reversal of the defendant's conviction.
We also reject Klessig's
contention that the trial court must make a separate determination that a
defendant possesses the competence necessary to conduct his own defense. At one point Wisconsin required an independent
inquiry into competence before a defendant's waiver of counsel in a criminal
proceeding could be deemed effective. Pickens,
96 Wis.2d at 567, 292 N.W.2d at 610; Haste, 175 Wis.2d at 24, 500
N.W.2d at 687. This law, however,
changed when the United States Supreme Court decided Godinez v. Moran,
113 S.Ct. 2680, 2682 (1993). In Godinez,
the Supreme Court concluded that the only inquiry into competence required for
a waiver of the right to counsel was the competence necessary to stand
trial. Id.
Once a defendant has
been found competent to stand trial, a trial court may not engage in further or
heightened competency requirements addressing the defendant's possession of
skills, intelligence or experiences that would be sufficient to permit him to
adequately represent his best interests at trial. Id. at 2687.
A competency determination is required only when the court has reason to
doubt the defendant's competence to stand trial. Id. at 2688 n.13.
Klessig does not contend that he was not competent to stand trial or
that the court had reason to doubt his competence to stand trial. Therefore, we conclude that the trial
court's failure to make an independent determination of competency was not
error.
We recognize the
difficulties inherent in treating the right to proceed pro se as a
constitutional right not subject to trial court review. Nonetheless, we are bound by the Supreme
Court's analysis of the Sixth Amendment and its conclusion that the right to
proceed pro se is constitutionally guaranteed.
Under the doctrine enunciated by the Supreme Court, a trial court may
not deny an individual that right because of an independent determination that
the defendant lacks the necessary skills or legal expertise to adequately
protect his interests at the criminal trial. Therefore, we affirm the judgment of conviction.
By the Court.—Judgment
affirmed.
[1] The right to counsel is guaranteed by the Sixth Amendment to the United States Constitution and art. I, § 7, of the Wisconsin Constitution.
[2] Under State v. Bangert, 131 Wis.2d 246, 274-75, 389 N.W.2d 12, 26 (1986), the State has the burden to prove by clear and convincing evidence that the waiver of constitutional rights was knowing and voluntary. Other claimed errors may require the State to prove beyond a reasonable doubt that the defendant was not prejudiced by the error. Because we are dealing with the waiver of the right to counsel, the Bangert analysis applies to prove the waiver was knowing and voluntary. Although Bangert involves an analysis for voluntarily and knowingly waiving constitutional rights when entering a plea and not waiving the right to counsel, we conclude its analysis is appropriate in this situation.