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COURT OF
APPEALS DECISION DATED AND
RELEASED March
28, 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. |
No. 95-2611-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
PABLO
Y. HERAS,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Jefferson County: JACQUELINE R. ERWIN, Judge. Reversed and cause remanded with
directions.
SUNDBY,
J. After a mistrial, the State retried the defendant-appellant
Pablo Y. Heras on three counts of violating a domestic abuse restraining order,
contrary to § 813.12, Stats. He appeals from a judgment of conviction
entered April 21, 1994, entered on a jury verdict, convicting him on all
counts. He claims that he was denied a
fair trial because the trial court refused to appoint counsel for him and
allowed him to proceed without counsel.
He also claims that justice miscarried and this court should order a new
trial in the interest of justice, pursuant to § 752.35, Stats.
The State confesses error.
However, we[1] have an
institutional responsibility to affirm a criminal conviction when we conclude
that the State has erroneously conceded error.
See Rudolph v. State, 78 Wis.2d 435, 447, 254
N.W.2d 471, 476 (1977), cert. denied, 435 U.S. 944 (1978). We conclude that the danger that Heras did
not receive a fair trial requires that we exercise our discretion to grant him
a new trial. We therefore reverse the
judgment and remand for a new trial.
The
State acknowledges that nothing in the record shows that Heras knew the
seriousness of the charges he was facing and the penalties that might be
imposed if he were found guilty. The
transcript of his initial appearance shows that the complaint was not read to
him. It is undisputed that Heras
required an interpreter at trial. The
State concedes that it would be pure speculation to conclude that because he
received a copy of the complaint, Heras knew the nature and seriousness of the
charges and the possible penalties. The
State concludes therefore that Heras did not make a knowing, voluntary and
intelligent waiver of his right to the assistance of counsel. See Pickens v. State,
96 Wis.2d 549, 555, 292 N.W.2d 601, 605 (1980). As the court stated in that case, "[n]either the state, nor
the defendant, is in any sense served when a wrongful conviction is easily
obtained as a result of an incompetent defendant's attempt to defend
himself." Id. at
568, 292 N.W.2d at 611 (citing Faretta v. California, 422 U.S.
806, 839-40 (1975) (Burger, C.J., dissenting); Carpenter v. Dane County,
9 Wis. 249, 251 (1859)).
The
State is as aware of its responsibilities to see that a criminal defendant
receives a fair trial, as is this court.
When the representative of the State who prosecuted the case concedes
that defendant did not receive a fair trial, we will give great weight to the
State's confession of error. "A
prosecutor has the responsibility of a minister of justice and not simply that
of an advocate. This responsibility
carries with it specific obligations to see that the defendant is accorded
procedural justice and that guilt is decided upon the basis of sufficient
evidence...." SCR 20:3.8,
Comment.
For
these reasons, the court accepts the State's confession of error and reverses
the judgment and remands this matter for a new trial. While we do not direct the trial court's exercise of its
discretion, we agree with the State that it does not appear that Heras has sufficient
knowledge of the English language and our criminal justice system to appear
without counsel. If the court
determines that Heras is not indigent and that the circumstances do not justify
appointing counsel at county expense, the court may consider appointment of
standby counsel or arrange a schedule of periodic payments which will permit
Heras to retain counsel.
By
the Court.—Judgment reversed
and cause remanded with directions.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.