Wisconsin state Court of Appeals

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State of Wisconsin v Eller, Appeal

Pro Se Representation

Attorney for Defendant Appellant: Tracey Wood
185 Wis.2d 917, 520 N.W.2d 291 (Court App. 1994)
Court of Appeals of Wisconsin
STATE of Wisconsin, Plaintiff-Respondent,
v.
Gloria M. ELLER, Defendant-Appellant. No. 93-1330-CR.
June 16, 1994. Appeal from a judgement and an order of the circuit court for Dane County:

***1 This is a single-judge appeal decided pursuant to § 752.31(2)(f), Stats. Gloria Eller appeals from a judgement convicting her of a third offense of operating a motor vehicle while under the influence (OMVWI), contrary to § 346.63(1)(a), Stats., and an order denying her motion for post conviction relief.

The sole issue on appeal is whether the trial court erred in accepting Eller's non-counseled waiver of a jury trial after she had invoked her right to counsel. We conclude that the trial court was required to obtain Eller's waiver of counsel before proceeding to elicit her jury trial waiver. Accordingly, we reverse and remand for a new trial.

CASE BACKGROUND

Eller was charged with OMVWI, operating with a prohibited blood alcohol concentration, and operating after revocation (OAR) as a result of a traffic stop in the City of Middleton on July 21, 1992. The drunk driving counts were set for a jury trial on November 5, 1992, with jury selection slated for November 2, 1992.[FN1]

On November 2, Eller appeared without counsel. The trial court expressed concern over Eller's decision to represent herself, and informed her of the significance of her decision and the standards to which the court would hold her. Eller indicated that she still preferred to proceed pro se, and the court found that Eller had freely, knowingly and voluntarily waived her right to counsel. The proceeding was then adjourned so that the trial court could dispose of other matters.

After the recess, the trial court stated: "Ms. Eller has indicated to me that upon reflection she does wish to discuss this matter with an attorney." The court then noted that because Eller wanted to have the trial held as soon as possible, she was willing to forego her right to a jury trial and have both the drunk driving and OAR cases tried to the court. The trial court had explained that the earliest date for a jury trial with counsel would be in December, while a bench trial with counsel could be held November 10, 1992.

Eller agreed with the trial court's characterization that she had received an extensive briefing on her right to a jury trial. At the State's request, the trial court also explained that in a jury trial, she could not be convicted unless the twelve jurors unanimously found her guilty beyond a reasonable doubt. By contrast, only the judge would have to be so persuaded in a trial to the court. Eller indicated that she appreciated this distinction. The trial court then warned Eller that she could not withdraw this waiver, even after consulting with an attorney. Eller told the court that she understood this also. Based on Eller's responses, the court found she had freely, knowingly and voluntarily waived her right to a jury trial. The court then referred Eller to the State Public Defender's Office.

Before the bench trial commenced, the court informed the public defender that Eller had waived a jury trial. Counsel made no motion to withdraw the waiver. The trial court convicted Eller of OMVWI, but dismissed the OAR count.

***2 Eller moved for a new trial on the ground that her waiver of a jury trial was invalid because it occurred in the absence of counsel after she had invoked her right to counsel. The trial court denied the motion, reasoning that it had implied a willingness to continue the case to permit Eller to confer with counsel concerning the merits of a jury. Additionally, the court held that Eller had waived any right to challenge the validity of her waiver because counsel had failed to raise an objection at trial. Eller now appeals her conviction and the denial of her motion.

STANDARD OF REVIEW

Whether a defendant has knowingly, intelligently and voluntarily waived her right to counsel is a question of law. State v. Woods, 117 Wis.2d 701, 715- 16, 345 N.W.2d 457, 465 (Court of Appeals 1986) . Therefore, our review is de novo. Id.

ANALYSIS

The right to counsel attaches at all critical stages of criminal proceedings, especially where rights that could affect the whole trial may be sacrificed or lost. United States v. Wade, 388 U.S. 218, 225-27, 87 Supreme Court 1926, ---, 18 L.Ed.2d 1149 (1973) (quoting Kirby v. Illinois, 406 US 682, 689, 92 Supreme Court 1877, ---, 32 L.Ed.2d 411 (Fla. Dist. Ct.App.1971) ; State v. Dickson, 680 P.2d 313, 315(Kan. Ct.App.1984). Furthermore, such a hearing fits the definition as it occurs after the initiation of adversarial criminal proceedings and can potentially affect the whole trial.

Thus, Eller had the right to confer with counsel prior to waiving her right to a jury and to have counsel present when the court accepted that waiver. It is undisputed that Eller neither consulted with counsel prior to her jury waiver nor had counsel present at the proceeding. Therefore, her jury waiver could only have been valid if she had knowingly, willingly and voluntarily waived the assistance of counsel in deciding whether to try her case to a jury.

While the court found that Eller had freely, knowingly and voluntarily waived her right to counsel before the recess, Eller withdrew that waiver when she informed the court that she did not wish to proceed to trial without counsel. By requesting an attorney, Eller clearly indicated that she did not feel capable of dealing with the adversarial criminal process by herself. Michigan v. Jackson, 475 US 625, 633 n. 7, 106 Supreme Court 1404, ---, 89 L.Ed.2d 631 (1991) .

***3 The record contains no colloquy between the trial court and Eller on her right to confer with counsel concerning a jury trial. At best, the trial court implied that Eller had a right to counsel at this stage in the proceeding by stating its willingness to set the matter over for a jury trial a month later, and by warning Eller that she could not withdraw the waiver after consultation with her attorney.[FN2] But the waiver of a fundamental constitutional right may not be inferred or presumed. Pickens v. State, 96 Wis.2d 549, 555, 292 N.W.2d 601, 605(1980) ; see also Wis J I-Criminal SM-30, Waiver of Counsel.

Therefore, we conclude that because the record does not adequately reflect a knowing, intelligent and voluntary waiver of her right to counsel at a critical stage in her case, Eller's waiver of the right to trial by jury was not valid. When a jury waiver is invalid, the proper remedy is a new trial.[FN3] Livingston, 159 Wis.2d at 573, 464 N.W.2d at 844.
By the Court: Judgment and order reversed and cause remanded.

FN1. The OAR charge was to be tried to the court because Eller did not post the jury fee in that case.

FN2. The State concedes that the trial court "overstated how irrevocable the waiver of jury was." Under State v. Cloud, 133 Wis.2d 58, 65, 393 N.W.2d 123, 126 (Ct.App.1986) , a trial court must grant a defendant's motion to withdraw a jury waiver absent a showing of substantial delay or impediment to the cause of justice.

FN3. The trial court stated that because defense counsel did not move to withdraw the jury waiver before proceeding to trial, the objection to the waiver's validity had not been preserved. Such a conclusion might be justified if Eller and her counsel had discussed the merits of a jury, and Eller had made the strategic decision not to withdraw the waiver. See Baker v. Wainwright, 245 So.2d 289, 290 (Fla. Dist. Ct.App.1971) . However, Eller's uncontroverted testimony was that she never discussed the jury issue with counsel prior to trial. Therefore, we cannot uphold Eller's conviction on the basis of a failure to timely object at trial.

Wis.App.,1994. STATE of Wisconsin, Plaintiff-Respondent, v. Gloria M. ELLER, Defendant- Appellant. 520 N.W.2d 291, 185 Wis.2d 917, 1994 WL 261197 (Wis.App.) Unpublished Disposition.

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