Kessler went to trial on several counts, the most serious of which was burglary. Five days before trial was to begin, he asked to represent himself with his prior counsel as standby. The court granted the request after a hearing. Kessler represented himself for one day of the trial before giving the reins back to his attorney. Postconviction, he asserts that the court’s colloquy on self-representation was inadequate because it should have delved deeper into mental health concerns. He also claims he was incompetent to represent himself due to auditory hallucinations caused by schizophrenia. The court heard evidence and denied the motion, and Kessler appealed.
The court of appeals addresses three issues. First, it examines whether the trial court conducted an adequate colloquy on the waiver of counsel under State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997). That case requires a court to hold a colloquy to ensure a defendant
“(1) made a deliberate choice to proceed without counsel, (2) was aware of the difficulties and disadvantages of self-representation, (3) was aware of the seriousness of the charge or charges against him [or her], and (4) was aware of the general range of penalties that could have been imposed on him [or her].”
A court must also make a competency finding on the record. (¶28). The court of appeals finds no problem with the trial court’s colloquy. To Kessler’s complaint that the trial court should have probed deeper about mental health concerns, the appellate court responds that there was no apparent need to, because Kessler told the court he had no mental or emotional problems and could understand everything that was going on. (¶¶32-36).
The second issue generates a discussion that’s potentially significant for lawyers and defendants going forward (though the case is unlikely to be published, you can cite it for persuasive value). The circuit court seemed to believe that a valid Klessig colloquy conclusively forecloses a later claim that the defendant was incompetent to represent him- or herself, so that there was no need to hold an evidentiary hearing on Kessler’s claim of incompetency (it held one anyway). The court of appeals–with the agreement of both parties–says this isn’t so. It analogizes to the realm of plea withdrawals, wherein a bad colloquy gives rise to one sort of claim–under Bangert–and a good one may still permit another (usually more difficult) route to relief under the Nelson/Bentley rubric; namely, the defendant must point to something extrinsic to the colloquy that demonstrates incompetency. ( ¶¶37-42).
Finally, the court of appeals refuses to disturb the lower court’s finding that Nelson was, in fact, competent, based as it is on credibility and factual findings. (¶¶45-54).