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Self-Representation – SVP

State v. Lee Alexander Brown, 2010AP970, District 1, 2/1/11

court of appeals decision (3-judge, not recommended for publication); for Brown: Russell D. Bohach; case activity; Brown BiC; State Resp.

The court holds that Brown knowingly, intelligently and voluntarily waived his right to counsel at trial on his sexually violent person petition.  Although there is a question as to whether the right to counsel under the 6th amendment and Art. I, § 7 attaches to a civil commitment proceeding, the court doesn’t reach the issue (¶13). The court instead reviews the record of waiver of counsel under the 4-factor Klessig test, plus the dtermination of self-representation competence.

  • Brown clearly desired to represent himself, thus his decision was deliberate, ¶18.
  • The trial court explained that SVP proceedings are complicated, and though Brown’s response to that cautionary advice might have appeared “rambling and incoherent,” he nonetheless understood the  trial court’s concerns, ¶20.
  • The trial court made Brown aware of the potential for lifelong commitment, hen e Brown understood the consequences at risk (gravity of petition and general range of penalties), ¶22.
  • Brown made numerous filings which, though “misguided and poor strategy,” demonstrated that he was literate and able to asset legal theories, ¶27. Expression of “rambling and incoherent” thoughts, without indication of a “specific problem or disability” isn’t alone enough to establish incompetence for self-representation, ¶¶28-29. Nor was the required required (as opposed to authorized) to inquire into the litigant’s education, literacy, etc., ¶¶30-31.

It is certainly true that an SVP petition isn’t criminal, and therefore doesn’t implicate the 6th amendment. Nonetheless, Wisconsin has long hewed to the principle that “(w)here a statutory right to counsel exists, we have held that the right includes the right to effective counsel.” State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 253, 548 N.W.2d 45 (1996), citing A.S. v. State, 168 Wis. 2d 995, 1002-03, 485 N.W.2d 52 (1992). An SVP respondent has a statutory right to counsel, § 980.03(2)(a), and it therefore isn’t clear why the same standard for waiver of counsel in a criminal case wouldn’t apply.

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