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SVP: Counsel — Waiver Standards

State v. Dennis R. Thiel (III), 2001 WI App 32, 241 Wis. 2d 465, 626 N.W.2d 26
For Thiel: John D. Lubarsky, SPD, Madison Appellate

Issue: Whether the standard for waiver of right to counsel in a criminal proceeding applies to Ch. 980.

Holding: “… (B)ecause WIS. STAT. § 980.09(2) guarantees the right to counsel at the probable cause hearing, the same standards and procedures for resolving right to counsel issues in a criminal context should apply to the § 980.09(2)(a) probable cause hearing.” ¶12.

Thiel, already committed as an SVP, petitioned for discharge after a § 980.07 reexamination. He ended up representing himself. The court of appeals determines that the standards for validity of waiver of counsel in a criminal case, State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), apply to Ch. 980, because: 1) constitutional rights of a criminal defendant are incorporated into Ch. 980 proceedings. ¶15; patient’s rights in Ch. 51 civil commitments — which includes Klessig standards for waiver of counsel — also apply to Ch. 980. ¶¶16-18. The trial court didn’t conduct an adequate colloquy, and the matter is therefore remanded for an evidentiary hearing at which the state will be required to prove by clear and convincing evidence that the presumption of nonwaiver should be overcome. ¶¶19-20

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