Leister, charged with intentional mistreatment of animals, wanted a lawyer but had trouble retaining one. After repeated adjournments, he wound up trying his case pro se in the absence of a colloquy to determine whether he knowingly, intelligently and voluntarily waived his right to counsel. After his conviction, he retained lawyer, who raised the issue in a postconviction motion. While the circuit court ruled against him, the court of appeals reversed and remanded the case for a new trial.
The State conceded that Leister did not receive the on-the-record colloquy required by State v. Klessig, 211 Wis. 2d 194, 206, 212-213, 564 N.W.2d 716 (1997). The colloquy must show that the 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].” Where a circuit court fails to conduct such a colloquy and the defendant files a motion for postconviction relief, the court must hold an evidentiary hearing to determine whether the waiver was knowing, intelligent, and voluntary. At such a hearing, the burden falls on the State to overcome the presumption of non-waiver by proving by clear and convincing evidence that the defendant knowingly, intelligently, and voluntarily waived his or her constitutional right to counsel. Id. If the State fails to meet its burden, the defendant “is entitled to a new trial.” Opinion, ¶12 (quoting Klessig).
Despite the circuit court’s failure to conduct this colloquy before trial, the State had a second chance to prove a knowing, intelligent, and voluntary waiver at a postconviction evidentiary hearing, where it bore the burden of proof. But it did not offer any evidence at all. It simply argued that Leister had represented himself in other cases and pointed out that he had obtained an acquittal on one of his charges. This information is not relevant to the Klessig analysis. That’s one reason the court of appeals reversed. Opinion, ¶17.
The other reason is that the State’s appellate brief did not cite to the record or to supporting legal authority. The State’s entire response brief was just 2.5 pages long The court of appeals refused to develop the State’s arguments for it and so reversed based on Klessig and remanded the case for a new trial. Opinion, ¶¶19-20.