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Self-Representation: Klessig Waiver

State v. Dragisa Pavlovic, 2011AP2687-CR, District 2, 8/1/12

court of appeals decision (1-judge, ineligible for publication); case activity

Pavlic’s waiver of counsel so that he could represent himself at trial satisfied State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997).

¶8        As a precautionary measure, the trial court granted Pavlovic a Klessig evidentiary hearing.  We conclude the trial court’s waiver colloquy complied with Klessig.  First, the trial court established that Pavlovic made a deliberate choice to proceed pro se.  The trial court confirmed that Pavlovic understood that he was entitled to a lawyer.  The trial court asked Pavlovic about his income and discovered that Pavlovic had earned over $80,000 in the previous year.  The trial court found that Pavlovic understood his right to counsel and that he could have hired a lawyer, but that he chose not to do so.

¶9        Second, the trial court advised Pavlovic of the difficulties and disadvantages of proceeding pro se.  The trial court told Pavlovic that trying a case is more difficult than it may seem and that it is not like television.  The trial court told Pavlovic that a nonlawyer trying his own case is like a person performing surgery on himself.  The trial court warned Pavlovic that if his unfamiliarity with procedure caused a mistrial, he himself would bear responsibility for it.  After these warnings, Pavlovic indicated that he was ready for trial.

¶10      Third, the trial court informed Pavlovic of the seriousness of the charges against him.  The trial court went through the State’s charges with Pavlovic prior to trial.

¶11     Finally, the trial court informed Pavlovic of the maximum penalties he faced for the charged offenses.  After this explanation, Pavlovic reiterated that he wanted to proceed to a jury trial.

The trial court also established Pavlovic’s competence to represent himself, such as fluency in English and absence of any disabling conditions. Although the trial court didn’t make a specific finding of competency, the record supported Pavlovic’s competence, ¶¶12-13.

Speedy Trial / Sentencing

Sentencing on two counts didn’t occur for approximately 13 months after the guilty verdicts. Pavlovic’s right to speedy sentencing, which is a component of the right to speedy trial, State v. Allen, 179 Wis. 2d 67, 73, 505 N.W.2d 801 (Ct. App. 1993), wasn’t violated by this delay.

¶16      Wisconsin courts apply a four-part balancing test to a defendant’s claim that his or her right to speedy sentencing was violated.  We consider the length of the delay between conviction and sentencing, the reason for the delay, the defendant’s assertion of the right to speedy sentencing, and prejudice to the defendant.  See Allen, 179 Wis. 2d at 74. … In speedy sentencing cases, unlike speedy trial cases, the prejudice prong dominates the four-part test.  See id. at 77-78. … In fact, “once a defendant has been convicted it would be the rarest of circumstances in which the right to a speedy trial could be infringed without a showing of prejudice.”  Id. at 77-78 (citation omitted).

¶17     … Pavlovic’s argument that he was prejudiced is based on the trial court’s decision to delay sentencing until the criminal proceedings in another matter involving Pavlovic concluded. … The court stated that it wanted to delay sentencing until it knew the outcome of the other two criminal matters. …

¶18      Pavlovic argues that he was prejudiced because had he been sentenced immediately, he would not have jumped bail and the court would not have known the outcome of his other criminal cases.  He thus asks us to hold the judicial system responsible for his own unlawfulness and for his decision to jump bail—in other words, the court is at fault for not putting him behind bars sooner.  We will not address this frivolous argument.  As we hold that Pavlovic was not prejudiced, we need not discuss the other three speedy sentencing factors.

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