State v. Denson, 799 N.W.2d 831

Background

Denson was convicted by a jury of first-degree recklessly endangering safety (as a lesser included offense of attempted first-degree intentional homicide) and false imprisonment; he was acquitted of first-degree sexual assault of a child and negligent handling of a dangerous weapon.
Denson raised postconviction claims that the circuit court failed to conduct an on-the-record colloquy regarding his right not to testify, arguing the waiver was invalid under Weed.
The circuit court held an evidentiary hearing and found that Denson knowingly, voluntarily, and intelligently waived his right not to testify.
The court of appeals summarily affirmed, adopting the Weed-based framework and holding that an on-the-record colloquy is not required.
The Wisconsin Supreme Court granted review and affirmed, holding (1) the right not to testify is fundamental but does not require an on-the-record colloquy; (2) a postconviction evidentiary hearing is an appropriate remedy for invalid waivers; and (3) the circuit court’s evidentiary findings in this case supported a valid waiver by Denson.
The opinion also features a concurring view advocating for mandating an on-the-record colloquy for waivers of the right not to testify.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the right not to testify is a fundamental right that must be waived personally with an on-the-record colloquy	Denson argues Weed extends to the right not to testify	State contends Weed does not extend to the right not to testify	No; on-the-record colloquy not required for waiver of the right not to testify
What remedy is appropriate when a postconviction challenge raises an invalid waiver of the right not to testify	Weed required an on-the-record colloquy; postconviction remedy insufficient	Postconviction evidentiary hearing can address validity of waiver	Postconviction evidentiary hearing is an appropriate remedy; automatic reversal not required
Did Denson knowingly, voluntarily, and intelligently waive his right not to testify	Denson did not knowingly waive the right; counsel failed to inform him	Record supports that Denson knew of the right and consequences; counsel testified accordingly	Yes; Denson knowingly, voluntarily, and intelligently waived the right
Should the court have applied harmless-error analysis to the waiver issue	Failure to colloquy nullifies waiver regardless of record	Harmless-error analysis may apply	Harmless error analysis does not apply; remedy is postconviction evidentiary hearing
Is Weed's mandatory on-the-record colloquy applicable to the right not to testify	Weed should control; colloquy required	Weed should not be extended to the right not to testify	Weed not extended to the right not to testify; colloquy not required

Key Cases Cited

State v. Weed, 263 Wis.2d 434 (2003 WI 85) (set forth Weed-type colloquy for waiver of the right to testify)
State v. Jaramillo, 316 Wis.2d 538 (2009 WI App 39) (discussed colloquy requirements; held not to require on-record colloquy for waiver not to testify)
Bangert, 131 Wis.2d 246 (1986) (structural Bangert process for ensuring valid guilty pleas; used as remedy guide)
State v. Klessig, 211 Wis.2d 194 (1997) (established framework for evaluating waivers of rights via postconviction process)
State v. Anderson, 249 Wis.2d 586 (2002 WI 5) (waiver and trial rights considerations in sentencing and waiver context)
Rock v. Arkansas, 483 U.S. 44 (1987) (established fundamental right to testify and corollary rights)
Johnson v. Zerbst, 304 U.S. 458 (1938) (presumption against waiver of fundamental rights; intentional relinquishment)
Allison v. United States, 160 U.S. 203 (1895) (principle against judicial commentary on defendant’s decision to testify)