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Reconstruction of Missing Transcript – Counsel-Waiver Proceeding

State v. Joseph P. DeFilippo, 2005 WI App 213
For DeFilippo: Leonard D. Kachinsky

Issue/Holding: To be valid, waiver of right to counsel in criminal trial proceeding must be supported by adequate record, ¶5 (citing State v. Klessig, 211 Wis. 2d 194, 203-04, 564 N.W.2d 716 (1997)). Where, as here, the record fails to make such a showing (because waiver occurred in an unrecorded conference), then the question becomes whether the record was properly reconstructed, pursuant to guidelines in State v. Raflik, 2001 WI 129, 248 Wis. 2d 593, 636 N.W.2d 690, and State v. DeLeon, 127 Wis. 2d 74, 377 N.W.2d 635 (Ct. App. 1985), ¶6. The reconstruction was insufficient:

¶14          We begin with the length of time between the hearing that should have been recorded and the reconstruction—fifteen months. Raflik specifically noted that the eighteen hours that had passed before reconstruction was “in sharp contrast” with the four-month delay in the Washington case. Fifteen months is obviously much longer than four months, and is certainly long enough for recollections to become inaccurate.  Because the reconstruction here was primarily based on the recollections of the judge and the assistant district attorney, we conclude this passage of time weighs against reconstruction.¶15      Another factor is the length of the reconstructed segment. … We agree with the judge that the waiver portion of the hearing might take a short period of time, but it also might take longer. Therefore, this factor is neutral at best.

¶16      Next is whether there were any contemporaneous documents used to reconstruct the record.  Here there are none. … Therefore, this factor weighs against reconstruction.

¶17      The availability of witnesses used to reconstruct the record is another factor. Here, all the necessary witnesses were available and testified. Therefore, this factor does not weigh against reconstruction.

¶18      The final factor is the complexity of the segment reconstructed. As we have noted, there must have been a specific and significant colloquy with DeFilippo to establish he adequately waived his right to counsel. See Klessig, 211 Wis. 2d at 206-07. This involves a discussion of several factors. Thus, we conclude the reconstructed segment is fairly complex, dealing with an important constitutional right and therefore weighs against reconstruction.

¶20      After reviewing the factors, we conclude the court erred in reconstructing the record. As we have noted, the court must be satisfied beyond a reasonable doubt that the reconstructed record adequately reflects what actually occurred. Id., ¶54. Here we are particularly concerned with the amount of time that passed before reconstruction; the fact that the reconstruction was done simply based on the recollection of the parties, with no corroborating notes or documents; and the fact that the reconstructed hearing dealt with a basic and fundamental constitutional right. We therefore conclude there is reasonable doubt that the reconstruction is adequate to show that all the required factors necessary for waiver were explored. Consequently, the record does not show that DeFilippo knowingly and voluntarily waived his right to counsel. We thus reverse the judgment against him and remand for a new trial.

DeFilippo’s challenge was on direct appeal following pro se conviction. Hard to say how much impact this will have: how many defendants represent themselves in the first place; and, in the second, how many waive counsel in an unrecorded appearance? That said, there is the potentially for impact in any given sentencing enhancement, if for no other reason than that invalid waiver of counsel is the only basis for collaterally challenging a prior conviction-enhancer, see, State v. David M. Hahn, 2000 WI 118, clarified on reconsideration, 2001 WI 6, and State v. Charles J. Burroughs, 2002 WI App 18.

 

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