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Wisconsin’s standards for determining competency for self-representation are constitutional

State v. Andrew L. Jackson, 2015 WI App 45; case activity (including briefs)

The standard established under State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), for determining a defendant’s competency to represent himself does not violate Indiana v. Edwards, 554 U.S. 164 (2008), the court of appeals holds. The court also affirms the circuit court’s conclusions that Jackson didn’t validly waive his right to counsel and wasn’t competent to represent himself.

When a defendant wants to represent himself or herself, “the [trial] court must ensure that the defendant (1) has knowingly, intelligently, and voluntarily waived the right to counsel, and (2) is competent to proceed pro se.” State v. Imani, 2010 WI 66, ¶21, 326 Wis. 2d 179, 786 N.W.2d 40. To ensure the waiver of counsel is knowing, intelligent, and voluntary, Klessig requires the trial court to conduct a colloquy designed to establish that the defendant: made a deliberate choice to proceed without counsel; was aware of the difficulties and disadvantages of self-representation; was aware of the seriousness of the charge or charges against him; and was aware of the general range of penalties that could have been imposed on him. 211 Wis. 2d at 206. As to competency, “[w]hether a defendant is competent to proceed pro se is ‘uniquely a question for the trial court to determine,’” Imani, 326 Wis. 2d 179, ¶37 (quoted source omitted), and a trial court’s determination that a defendant is not competent to proceed pro se “will be upheld unless totally unsupported by the facts,” Pickens v. State, 96 Wis. 2d 549, 569-70, 292 N.W.2d 601 (1980), overruled in part by Klessig, 211 Wis. 2d at 206.

Jackson claims Wisconsin’s approach to determining competency to proceed pro se is invalid because Edwards allows a trial court to deny the right to self-representation only when the defendant is severely mentally ill. The court of appeals doesn’t buy it:

¶19      Jackson interprets Edwards as holding “that defendants who are not severely mentally ill must be found competent to represent themselves.” He misconstrues EdwardsEdwards did not grant any substantive rights to defendants seeking to represent themselves. Rather, Edwards only answered the narrow question of whether a State may prohibit a severely mentally ill defendant from representing himself in a criminal trial. Id. at 174. Nothing in Edwards establishes severe mental illness as the only circumstance in which a trial judge may deny the right of self-representation. The Supreme Court in Edwards declined to adopt a federal constitutional competency standard and specifically recognized an individual trial court’s authority to make competency determinations. Id. at 177-78 (“[T]he trial judge … will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant.”).

¶20      Accordingly, the Wisconsin standards established by Klessig, requiring a trial court to establish whether a defendant’s choice to proceed without counsel is deliberate and to engage a defendant in a colloquy to establish his or her understanding of various factors, are not contrary to Edwards….

In a fact-specific discussion, the court of appeals then applies Klessig and affirms the trial judge’s conclusions that: 1) Jackson’s waiver of counsel was not knowing, intelligent, and voluntary because he wasn’t making a deliberate choice to proceed pro se, as his requests to do so were “episodic driven,” and because he wasn’t aware of the difficulties and disadvantages of self-representation (¶¶23-28); and 2) Jackson wasn’t competent to represent himself (¶30).

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