State v. Ernst

JON E WILCOX, J.

¶ 50. (concurring in part, dissenting in part). I agree with the majority opinion that this court should continue to require the waiver of counsel colloquy set forth in State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997). Majority op., ¶ 2. As the court recognized in Klessig, such a colloquy serves to conserve judicial resources on appeal and ensures that a valid waiver of counsel is taken in a clear and efficient manner. Klessig, 211 Wis. 2d at 206.

¶ 51. I also agree with the majority's decision to do so utilizing this court's superintending and administrative authority in this instance for two reasons. First, as the majority correctly indicates, majority op., ¶ 18, Klessig itself can be read as imposing the colloquy requirement as a court-made procedural rule. Klessig, 211 Wis. 2d at 206. Second, mandating the colloquy requirement as a matter of state constitutional law would be inconsistent with Klessig. As we stated in Klessig, "[tjhe scope, extent, and, thus, interpretation of the right to assistance of counsel is identical under the Wisconsin Constitution and the United States Constitution." Id. at 202-03 (emphasis added). See also Jones v. State, 63 Wis. 2d 97, 105, 216 N.W.2d 224 (1974)(accord). In Iowa v. Tovar, 541 U.S. 77, 91-92 (2004), the United States Supreme Court held that one of the colloquy requirements we set forth in Klessig is not mandated by the federal constitution.

¶ 52. One of the requirements we set forth in Klessig was that the defendant be informed of the "difficulties and disadvantages of self-representation[.]" Klessig, 211 Wis. 2d at 206. In Tovar, the Supreme *333Court held that a strikingly similar requirement imposed by the Iowa Supreme Court was not compelled by the Sixth Amendment. Tovar, 541 U.S. at 91-92. As such a requirement is not compelled by the federal constitution and because "[t]he scope, extent, and, thus, interpretation of the right to assistance of counsel is identical under the Wisconsin Constitution and the United States Constitution!;,]" Klessig, 211 Wis. 2d at 202-03, such a requirement cannot be mandated by the Wisconsin Constitution. While some of the requirements we set forth in Klessig may be constitutionally necessary before a defendant can validly waive his right to counsel,1 clearly a defendant is not constitutionally entitled, as part of the right to counsel, to be warned about the dangers and disadvantages of self-representation.

¶ 53. As such, I disagree with the majority's conclusion that a violation of Klessig in this instance may form the basis of a collateral attack on Ernst's guilty plea. Majority op., ¶ 2. Ernst argues he is entitled to a plea withdrawal because he "was not adequately instructed on the difficulties and disadvantages of proceeding pro se." Majority op., ¶ 6. As discussed, in light of Tovar, such an instruction is not required under either the federal or state constitution.

¶ 54. In State v. Hahn, 2000 WI 118, ¶ 4, 238 Wis. 2d 889, 618 N.W.2d 528, this court held that a defendant cannot collaterally challenge a prior state conviction *334unless the challenge is based on "a violation of the constitutional right to a lawyer" in the previous proceeding. "In an enhanced sentence proceeding predicated on a prior conviction, the U.S. Constitution requires a trial court to consider an offender's allegations that the prior conviction is invalid only when the challenge to the prior conviction is based on the denial of the offender's constitutional right to a lawyer." Id., ¶ 17.

¶ 55. Thus, logically, if a defendant pleading guilty need not be informed of the dangers and disadvantages of self-representation as part of the constitutional guarantee of the right to counsel, and if the only legitimate basis for collaterally attacking a prior conviction is the denial of the constitutional right to counsel, then the failure of the circuit court to warn the defendant as to the dangers and disadvantages of proceeding pro se cannot form the basis for a collateral attack on a prior conviction.

¶ 56. As noted previously, some of the Klessig requirements may be constitutionally necessary, and to that extent, a violation of Klessig could, in some instances, form the basis of a collateral attack on a prior conviction. As the majority opinion correctly indicates: "Klessig can form the basis of a collateral attack, as long as the defendant makes a prima facie showing, pointing to facts that demonstrate that he or she did not knowingly, intelligently, and voluntarily waive his or her constitutional right to counsel." Majority op., ¶ 2. However, under Tovar, being informed of the dangers and disadvantages of self-representation is not part of the constitutional right to counsel. While failure to provide this particular Klessig warning may form the basis for a reversal on direct appeal, see Klessig, 211 Wis. 2d at 206, it cannot, under Tovar and *335Hahn, form the basis of a collateral attack. Thus, I dissent from Part IV of the majority opinion to the extent it suggests that the failure of the circuit court to inform a defendant of the dangers and disadvantages of self-representation may form the basis of a collateral attack on his conviction or has any relevance in determining whether the defendant was denied the constitutional right to counsel.

¶ 57. I do, however, fully join Part V of the majority opinion, addressing the proper procedures for a circuit court to follow once the defendant has made a proper prima facie showing of denial of the right to counsel.

Compare State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997)("the circuit court must conduct a colloquy designed to ensure that the defendant: (1) made a deliberate choice to proceed without counsel[.]") with Iowa v. Tovar, 541 U.S. 77, 88 (2004) ("We have described a waiver of counsel as intelligent when the defendant 'knows what he is doing and his choice is made with eyes open.'")(quoting Adams v. United States, 317 U.S. 269, 279 (1942)).