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Van Wagner & Wood |
Attorney Tracey Wood | Appeals
| Us Court of Appeals, 7th Circuit, US vs. Balsimo
Wisconsin state Court of Appeals
State of Wisconsin v Eller, Appeal
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 judgment 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 judgment 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.
Related Topics:
Attorney Tracey Wood | Drunk
Driving Offenses
Drunk Driving Law | Prior
Convictions | Appeals | Post
Conviction Relief
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