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Waiver of Right to Counsel: Adequacy – Reinstatement

State v. Joel D. Rhodes, 2011 WI App 145; for Rhodes: Chris L. Hartley; case activity

Self-Representation – Adequacy of Waiver of Right to Counsel 

The trial court undertook a valid waiver of counsel, pursuant to State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997):

¶18      We reject Rhodes’s claim.  The circuit court conducted a colloquy with Rhodes that the State aptly describes as exemplary.  During that colloquy, Rhodes assured the circuit court that he understood that he had a right to a lawyer, and that he nonetheless wished to represent himself.  He told the circuit court that he was thirty-one years old, that he had never been treated for a mental illness, that he had a tenth-grade education, and that he could read and write.  He demonstrated his understanding of the roles of a judge and a jury.  He said that he had previously participated in two felony trials, that he had read case law and statutes, and that he had read the discovery provided by the State in this case.  He acknowledged that an attorney might be better able than he to identify defenses and develop them at trial.  He explained, however, that he had conferred with family members, acquaintances, and three attorneys about waiving his right to counsel, and he confirmed that “[t]his is not a rash decision.”  Rhodes stated that he had not been threatened or promised anything to induce him to give up his right to a lawyer and that he made the decision of his own free will.

More details: ¶¶19-25, especially with respect to Rhodes’ having expressed interest in retaining a particular attorney (Peter Kovac), who was present but told the court he hadn’t been retained, ¶21. Rhodes’ argument on appeal (brief, p. 19) is that because he was “in the process of” retaining Kovac, his waiver of counsel couldn’t have been valid. The court of appeals rejects the argument: the trial court had, going into the waiver hearing, already given Rhodes “ample opportunity to consider and reconsider how he wished to proceed”; thus, “further inquiry about his discussions with Attorney Kovac” weren’t necessary, ¶24. Moreover, retaining Kovac wasn’t “a viable option,” given that Kovac affirmed he would not be prepared for trial on the agreed-upon date, ¶25.

Reinstatement of Right to Counsel 

The trial court properly exercised discretion in denying Rhodes’ request to reinstate his right to counsel, which Rhodes in effect made on the first day of trial, by for an adjournment so that Kovac could represent him :

¶35      The circuit court did not, however, base its decision solely on administrative concerns engendered by the timing of Rhodes’s efforts to reinstate the right to counsel.  Rather, the court also considered the specifics of Rhodes’s request.  We note that a circuit court generally must conduct an inquiry when a defendant requests substitution of counsel and must determine the basis for the request.  See State v. McDowell, 2004 WI 70, ¶71, 272 Wis. 2d 488, 681 N.W.2d 500.  Similarly, the Leveto court observed that a defendant’s request for reinstatement of counsel should normally trigger an inquiry to ensure the integrity of the trial proceedings and enable appellate review.  See id., 540 F.3d at 209.  Both McDowell and Leveto reflect that the scope of the inquiry depends on the state of the record.  See McDowell, 272 Wis. 2d 488, ¶71; Leveto, 540 F.3d at 209.  Moreover, the court’s knowledge of the totality of the circumstances is relevant in assessing the sufficiency of the inquiry.  See Leveto, 540 F.3d at 209.

¶40      The record amply supports the circuit court’s finding that Rhodes was engaged in gamesmanship over his representation.  Rhodes waived his right to counsel on April 6, 2007, stating that he was prepared for trial and could proceed on the scheduled trial date of May 7, 2011.  Nonetheless, as that deadline closed in, he told the circuit court that he wanted:  (1) Attorney Kovac to represent him; (2) to represent himself with Attorney Kovac serving as stand-by counsel; and (3) no lawyer, just a computer.  The circuit court was incapable of satisfying all of Rhodes’s mutually exclusive requests.  A defendant cannot rely on the right to counsel as a mechanism for imposing impossible duties on the circuit court.  See State v. Woods, 144 Wis. 2d 710, 714, 424 N.W.2d 730 (Ct. App. 1988).  Moreover, a litigant may not abuse the right to counsel “by repeatedly altering his position on counsel to achieve delay or obstruct the orderly administration of justice.”  United States v. Pollani, 146 F.3d 269, 273 (5th Cir. 1998).

United States v. Leveto, 540 F.3d 200, 207 (3d Cir. 2008), cited with approval for principle “that a defendant’s request to withdraw from self-representation and proceed with the assistance of counsel rests in the circuit court’s discretion,” ¶27. The court also cites Leveto approvingly for the idea that rescission of waiver may not be based on rigid insistence on keeping a calendar notwithstanding justifiable request for delay, ¶43. However, in this instance, discretion was properly exercised on the basis that Rhodes was trying to insert a concededly unprepared attorney into the case, id.

Rhodes’ separate argument that jail personnel prevented Kovac from meeting with him the weekend before trial began (thus interfering with his right to counsel, Geders v. United States, 425 U.S. 80 (1976)) rejected, as insufficiently briefed, ¶¶47-50.

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