State v. Anderson

Plaintiff-Respondent, Wisconsin, State

v. Tyran Defendant-Appellant- N. Anderson,

Pеtitioner. Supreme Court argument October 2001. Decided No. 00-1563-CR. Oral January 7WI (Also 301.) reported in 638 N.W.2d there were For the defendant-appellant-petitioner Gould, Michael K. assis- argument by briefs and oral defender. public tant state argued was the cause plaintiff-respondent

For Weber, attorney general, M. assistant by Gregory attorney Doyle, was James E. whom on the brief general. CROOKS, J. Anderson TyranN. 1. N. PATRICK of deci- appeals an unpublished

seeks review of affirming disorderly sion his conviction for conduct,1 (1997-98).2 contrary § to Wis. Stat. 947.01 Anderson statutorily contends that his trial waiver was both constitutionally inadequate because circuit affirmatively approve court and the State failed to waiver, consent to the engage and the circuit court did not personal colloquy confirming him in a written waiver. reject argument

¶ 2. We Anderson's that his trial waiver is invalid the record because lacks the required approval by of the court and consent the State. approved conclude We that the circuit court Anderson's by accepting trial waiver on the record, scheduling subsequently trial, a bench and then con- ducting Similarly, a bench trial. we conclude that the State consented to Anderson's trial waiver participating voicing objection. in a bench trial without regard argument

¶ 3. With to Anderson's that the by failing engage personal circuit court erred him in a colloquy, we hold that the record is insufficient determine whether Anderson's trial waiver was knowing, intelligent voluntary. We, therefore, hold engaged that the circuit court should have Anderson personal colloquy. Wereverse the decision of the court appeals, evidentiary hearing of and remand for an

1Although not relevant to the merits of regarding this case validity waiver, Anderson's we note an incon sistency in the proceedings record. The trial court reveal that Anderson was battery, contrary convicted of to Wis. 940.19(1). Stat. Anderson pursuant was also sentenced judgment of battery. conviction for judgment written conviction, however, shows Anderson was convicted of disor derly conduct.

2All references to the Wisconsin Statutes are to the 1997-1998 version unless otherwise noted. knowingly, intelligently Anderson

determine whether voluntarily Further- his trial. waived recognizing jury trial involves a fundamen- that a more, colloquy personal right, mandate the use of a we tal every defendant seeks to waive a criminal case where or her

I dispute. In facts are not 4. The relevant charged in Milwaukee November, 1998, Anderson was disorderly contrary County conduct, Court with Circuit charge § amended was later 947.01.3 to Wis. Stat. 940.19(1).4 § battery Stat. under Wis. Paul Public Defender Ksicin- Assistant State initially represented Anderson, moved to with- but ski attorney-client citing January com- draw on February problems. 25,1999, the circuit On munication ap- granted motion with Anderson's Ksicinski's appointed Attorney proval. as suc- Scott Connors was Attorney later, Connors months counsel. Six cessor among citing, reasons, other withdraw, also moved to problems. attorney-client On October communication essentially Attorney with- however, Connors 13, 1999, acknowledg- request counsel, to withdraw drew his § states full: Stat. 947.01 Wisconsin Whoever, private place, Disorderly public in a or Conduct. 947.01 indecent, boisterous, abusive, profane, violent, unrea- engages in disorderly sonably conduct under circumstances or otherwise loud provoke a to cause or disturbance the conduct tends in which guilty B of a Class misdemeanor. in full: states Stat. Wisconsin (1) battery. battery; aggravated Battery; Who- 940.19 substantial intent bodily an act done with harm to another ever causes bodily person the consent or another without harm to cause guilty person of a Class A misdemeanor. so harmed is ing that Anderson was not entitled to another Public appointment prior Defender because of the withdrawal Attorney Ksicinski. ¶ 6. The trial was scheduled for November morning, 10, 1999. On that called, when the case was apparently getting Anderson was slow in to the defense Mary table and court, the Honorable M. Kuh- presiding, nmuench, addressed Anderson in the follow- ing manner:

THE Anderson, COURT: you're going Mr. to have to do better than that. Get in Hang the defense table. on. pull crap You that jury front of a I can tell you your get butt jury from the box over to the —You quickly defense table as possible. standing I'm not any garbage. of this kind of youDo understand me? (No THE response.) DEFENDANT: audible THE you COURT: Do understand me? I don't want any you. comments from All I you you need from is for you do what I tell you to do when I tell to do it. prior 7. After a brief discussion about convic- tions and instructions, the court advised counsel they begin picking that would after lunch. Attorney Connors then informed the court that he had possibility having discussed with Anderson the a bench trial rather than a trial. The court in- Attorney structed Connors that he would have "to have a waiver of the trial form in the file." Anderson subsequently signed jury trial waiver. The substance entirety: of the waiver reads its And defendant, now comes above named and in his proper person hereby own expressly by waives trial jury and consents to immediate trial before the court jury. without a my up have case decided giving my right to

I bewill all 12 of sitting jury; I understand that as a people to reach a agree order people would have . those verdict. the court reconvened recess, 8. After stating After trial waiver. Anderson's

discussed complete appearances, as follows: discussion went receipt is in of a waiver THE COURT: The Court today's dated date. by jury signed as a enter it in the trial receive it and Court will voluntary of his knowing and at 1:30 this proceed a bench trial We will of the Court? any questions Are there afternoon. [State]: ZIMMERS No. MS. you both back at 1:30.

THE COURT: We'll see pre- proceedings reconvened, was the case the When was found and Anderson to the circuit court sented guilty. appealed The Court his conviction. Anderson Appeals trial waiver was found Anderson's judgment. On circuit court's

sufficient and affirmed the granted Petition Anderson's March this for Review.

II guaran- right to a trial is A defendant's by United States the Sixth Amendment teed of the Wisconsin I, and Article Section 7 Constitution Constitution.5 While the right to a trial recog- nized as a Cleveland, fundamental see right, State v. 2d 666, 670, (1971), N.W.2d 899 it is also well established that a defendant can completely waive the to a jury trial in favor of a trial by the court. Wisconsin Stat. 972.02 establishes the procedure for a criminal defendant to waive his right to a Section states:

Except as provided otherwise chapter, this criminal cases by jury shall be tried prescribed selected as in s. 805.08, unless the defendant writing waives or by statement in open court or 967.08(2)(b), under s. on record, approval with the of the court and the consent of the state.

5 The Sixth Amendment to the United States Constitution provides as follows: prosecutions, In all criminal enjoy the accused shall speedy public trial, by impartial an of the State and district committed, wherein the crime shall have been which previously law, district shall by have been ascertained and to be accusation; informed of the nature and cause of the be con- against him; fronted with the witnesses compulsory to have process obtaining favor, witnesses in his and to have the

Assistance of Counsel for his defence. I, Article Section 7 of the Wisconsin provides Constitution as follows: Rights of prosecutions accused. SECTION 7. In all criminal enjoy accused shall to be heard himself and counsel; to demand the against nature and cause of the accusation him; face; to meet the compulsory process witnesses face to to have compel behalf; attendance of witnesses in his and in prosecutions hy indictment, information, speedy public or

by impartial jury county an of the or district wherein the offense committed; county shall have been which or district shall have previously by been ascertained law.

594 opportunity for a not the 11. This case is first appellate interpret to Wis. Stat. Wisconsin 972.02(1). interpret previous § Rather, cases requirements § ing several 972.02 have estáblished right determining a valid waiver of be on circumstantial evidence The waiver cannot based 2d Cleveland, 50 Wis. at 670. inferences. or reasonable attorney, to not ‍‌​​​​​​​‌‌​​‌‌​​​​​‌​​‌​‌​​​‌​​‌​‌​​‌​‌​‌‌‌​​​‌‌‍defendant, must waive by the defendant an аffirmative act of a trial Livingston, 464 159 2d himself. State v. Wis. (1991). Furthermore, must advise the court N.W.2d839 unanimity requirement, such that the defendant of the agreed accept is not verdict that the court cannot jury. Resio, of v. 148 Wis. each member State (1989). Finally, this 687, 696-697, 2d 436 N.W.2d 603 by jury "[t]he one that a trial is court has stated concept rights is fundamental to that 'so making, impartial their relin fair and decision quishment standard forth Johnson must meet the set (1938).'" Resio, 2d at 148 Wis. Zerbst, v. 304 U.S. 458 (quoting Albright, 122, 130-131, 2d State v. 96 694 Wis. (1980)). Accordingly, jury trial waiver 487 N.W.2d relinquishment or abandon must be "an intentional privilege." Johnson, 304 U.S. of known or ment Resio, 464; also 2d at 694. at see waiver both Anderson claims his trial is constitutionally statutorily First, he claims infirm. comply with the does not that his requirements while his because Wis. Stat. writing, record lacks the trial waiver was "approval required consent of the of the court and the jury trial waiver also contends that his state." Anderson engage him circuit court failed invalid, because the personal colloquy in a to that determine his waiver was knowing, intelligent, voluntary. independently We benefiting review both of сlaims, Anderson's from the analyses appeals. of the circuit court and the of right "Whether an individual is denied a constitutional question is a of constitutional fact that this court independently question reviews as a v. law." State (1997) Klessig, 211 2d 194, 204, 564 N.W.2d 716 counsel). (reviewing right whether defendant to waived argues ¶ 13. Anderson first that the record to fails by approval demonstrate of the court or consent 972.02(1). § satisfy Specifi State sufficient to Wis. Stat. cally, Spiller State, Anderson relies on v. 49 Wis. 2d (1971), position N.W.2d his silence required the court and the State lacks the affirmative jury acts, in order to waive the ato trial. Spiller, ¶ 14. In the defendant claimed that he jury making waived to trial, his it error for his subsequently jury. case to be tried before Id. at At arraignment, Spiller his stated he that waived his transcript silent, Id. however, on attorney the reaction of the district and the court. Id. Nearly eight Spiller's later, months case went to trial alleged before a no and mention made was of the appeal, argued Spiller trial waiver. Id. On it was subject error for him be trial because Focusing required trial waiver was valid. on the approval of the court and State, consent this court held that there was no waiver of a because "silence consent is not a reasonable inference approval when required." acts of affirmative consent and are "[SJilence part Id. at 374. on the attorney district and the not court is tantamount respective approval." their consent and Id. at 374-375. argues Stat. that Wis. The State approval specify the state's the court's how does not expressed, this court should and that be must consent approval that the court the fact and consent from infer proceeded Accord- a court trial. both and the State ing controlling Spiller because State, is not support Spiller applying opposite does not and facts are objectives defendant of the statute. the reasonable jury right allegedly Spiller trial, a but waived his jury. subsequently contrast, got In tried before was he jury trial and what his Anderson waived argues that the The State for, a bench trial. he asked requirements are approval of the statute and consent jury preserve trials. interest the state's intended to jury dispute waiver, the trial not the State does When by going trial as by a bench forward with silence argues by that a requested defendant, the State the by rely and the the State on cannot silence defendant the waiver. court to invalidate rely agree. on silence ¶. cannot Anderson 16. We by acceptance incomplete State, and a somewhat the waiver, the trial when court, to invalidate the proceeded trial to a bench and the court both State approval objection. Although court's without explicit may it as have been not trial waiver the court demonstrates been, the record could have proceeded trial. accepted with a bench the waiver Specifically, the court stated: receipt of a waiver of The Court is

THE COURT: today's datе. The dated signed by jury that as a it in the trial and enter receive it Court will of his voluntary waiver knowing and at 1:30 this bench trial proceed with a We will afternoon.

597 expressed This statement demonstrates that the court approval by accepting its waiver, Anderson's written scheduling conducting trial, bench and later bench trial in this case. regard

¶ 17. With to the consent, State's we find this case is more akin to United States v. 452 Radford, (7th 1971), Spiller.6 F.2d 332 Cir. rather than In Rad ford, defendant claimed his trial waiver was Attorney invalid because the United States failed to sign Looking waiver form. 452 F.2d at 335. at 23(a),7 Federal Rule of Criminal Procedure the Court of Appeals purpose for the Seventh Circuit held that the government protect government's consent is to Accordingly, trial.8 Id. at 335. where the

6 The requirement state consent was first established in 1949, 120, 631, 1949, see ch. Laws of and is based on Federal 23(a). Rule of Criminal Murdock, Procedure See State v. 2000 170, App WI Wis. 2d (citing N.W.2d175 5). S.B. 474 and Senate Amendment Federal addressing cases government consent requirement, therefore, аre instructive 972.02(1). regarding interpretation the § of Wis. Stat. See id. 7 23(a) Federal Rule of Criminal Procedure nearly is iden 972.02(1). 23(a) tical to Wis. Stat. Rule states: (a) by Jury. required byjury Trial Cases to be tried shall be so tried jury unless the defendant writing waives a trial in with the approval government. of the court and the consent of the 8The Court Appeals for the Seventh Circuit relied on Singer States, (1965). v. United Singer, U.S. In the defendant right offered to waive the jury to a trial and the court willing was approve waiver, to the government but the refused give to its consent. Id. at 25. The United Supreme States Court government examined the consent requirement and found that requirement the designed was protect to government's the in by jury. interest a trial impediment

We find conditioning no constitutional to a waiver of prosecuting attorney this on the consent of the and the trial government waiver, the the not contest does government's be considered consent silence should signed repudiate his cannot "defendant the non-signing Attorney's asserting as a the United States Id. defect." Attorney's sign failure to The United States analogous jury to the State's silence is trial waiver

the underlying principle of state case. Because in this protect trials, interest the state's is to consent rely silence on the State's Anderson cannot find that we The fact that trial waiver. his to invalidate trial, and did not court forward with the went State any opposition, the State's consent demonstrates voice case. this to the trial waiver that Anderson's contention next address 19. We the circuit invalid, because trial waiver is argues colloquy. engage that Anderson him in a failed to colloquy, informa- lacks sufficient the court without relinquishment guarantee that tion voluntary. intelligent, knowing, Ander- trial is suggests is not sufficient written waiver that his son intelligently, knowingly, and volun- that he determine tarily the court trial, because waived shortly ac- was the waiver him before admonished cepted, problems he had demonstrates and the record attorney. communicating with his consent, simply when, result is judge if either refuses to very by jury subject impartial trial is to an the defendant —the guarantees him. The Constitution thing that the Constitution adversary system proper of determin- recognizes method an as legitimate Government, litigant, has a ing guilt, * seeing a conviction in which it believes that cases interest which the Constitution before the tribunal are tried warranted likely produce fair result. regards as most Id. at 36.

599 Relying Livingston, ¶ 20. on State v. 159 Wis. 2d (1991), 561, 573, Cleveland, 464 N.W.2d839 State v. (1971), 666, 670, Wis. 2d 184 N.W.2d 899 and State v. (Ct. App. 1980), Moore, 97 Wis. 2d 294 N.W.2d551 proper remedy Anderson contends that for the engage colloquy court's failure to him in a is reversal of his conviction and remand for a In new trial. all of those reviewing cases, the court found that the defendant did right not his waive constitutional to a trial, and Livingston, ordered a new trial. 573; 159 Wis. 2d at Cleveland, Moore, 670; 50 Wis. 2d at 97 Wis. 2d at 671. Livingston In Cleveland, the defendants them waiving selves made no statement —written or oral— Livingston, to a 2d 565; at Cleveland, engaged Moore, 50 Wis. 2d at 669. In the circuit court colloquy, informing

the defendant in a short the defendant of his trial, but the court never asked the defendant if he wanted a trial or wished to waive it. 97 Wis. 2d at 670. Based on these argues cases, Anderson that the circuit court erred failing engage colloquy him in his to establish willingness give up and intent to trial, accepting Krueger before the written waiver. See v. (1978). State, 84 272, 282, Wis. 2d 267 N.W.2d602 personal colloquy 21. The State that a contends statutory requirement. is not a or constitutional Wis- specifically require consin Stat. does not colloquy, nothing suggest and there in the record to knowing, intelligent, Anderson's waiver was not voluntary. argues The State that Anderson's failure to protest trial, the bench after defense counsel informed the court of the trial waiver, should be construed as "knowing acquiescence." argues The State also that if any the court retains doubt about whether Anderson's knowing, intelligent voluntary, waiver was hearing, evidentiary remedy proper remand for an is a of his conviction. rather than reversal Livingston, Cleve ¶ contends that 22. The State apply unlike the here because land, do not and Moore signed waiver is cases, Anderson's in those defendants step personal, to waive affirmative According similar to State State, this case is to the (Ct. 1999), App. 8 Grant, 90, 2d 601 N.W.2d v. 230 Wis. step brief an affirmative the defendant took where personal —a colloquy the of waiver—and on the issue evidentiary hearing remedy proper to determine anwas intelligent, knowing, and vol the was whether unanimity requirement. untary regarding In the Klessig, Appeals v. relied on State Grant, the Court of (1997), and 716 194, 207, 564 N.W.2d 211 2dWis. Bangert, adopted 2d v. 131 Wis. familiar State (1986), appropriate procedure 12 389 N.W.2d remedy advise a defen court fails to the circuit when jury unanimity requirement. 2d at 230 Wis. dant of the 96, 100. personal collo- that without 23. . conclude We

quy, that Anderson's to determine are unable we voluntary.9 intelligent, knowing, trial waiver 9 "totality of the application disagree with the dissent's We validity of test to determine and circumstances" of facts gets 58. The dissent Dissent at trial waiver. Anderson's Burns, 762, 774, 2d 594 N.W.2d from State v. 226 Wis. this test stated, only inference "that (1999), this court where of this totality facts and circumstances possible from We plead no contest." intended this defendant case is here, because, analysis unlike engage in a similar decline to lengthy in a engaged the defendant Burns the circuit signed plea id. at and defendant colloquy, see personal Id. at 766-767. In rights form. and waiver of questionnaire right. trial is a fundamental State v. (Ct. Villarreal, 323, 326, 2dWis. 450 N.W.2d 519 1989). App. previously, As noted this court has held that "[t]he by jury rights ato trial is one of the that is concept impartial 'so fundamental to the of fair and making, relinquishment decision that their must meet Zerbst, the standard set forth in Johnson v. 304 U.S. 458 (1938).'" Resio, 148 2d at 694. The waiver of a relinquishment trial therefore must be an intentional right privilege. or abandonment of a known or Id. While § procedure Wis. Stat. establishes the waiving right jury statutory require- the to a trial, the are ments not sufficient to determine a whether knowing, intelligent, defendant's waiver is and volun- tary. recognition jury Therefore, based on our that a right, trial a involves fundamental we mandate the use personal colloquy every of a case where a criminal right defendant seeks to waive or his her to a colloquy determining trial.10 A is cleаrest means of knowingly, intelligently, that the defendant is and vol- untarily waiving colloquy trial, and a postconviction documents the valid waiver for motions appellate proceedings. Klessig, and As we stated in 211 properly colloquy Wis. 2d at 206, "a conducted serves contrast, signed while Anderson a form, trial waiver circuit engage court did not any personal Anderson in colloquy regarding his decision to waive his trial. Based on presented here, the facts therefore, we disagree with the "totality dissent's of facts and analysis. circumstances" disagree We with the dissent's conclusion that our deci sion colloquy to mandate a 972.02(1), conflicts with Wis. Stat. compliance makes with the statute irrelevant. Dissent at Rather, colloquy ¶¶ a statutory require enhances ments because we colloquy conclude that a is procedure the best to determine that a defendant is knowingly, intelligently voluntarily relinquishing a right. fundamental ensuring purposes a defendant not of dual efficiently rights deprived and of of his constitutional judicial guarding our resources." scarce prove waiver, the circuit To a valid designed colloquy a to ensure that court must conduct (1) choice, made a deliberate absent the defendant: (2) promises, proceed trial; or without threats jury trial, that it of the nature of a such was aware agree panel people that must on all of a consists (3) charged; the crime was aware of elements of judge will make a trial, of a court such that nature guilty of the or not he or she is decision on whether (4) enough charged; had time to discuss this crime attorney. Judi his or her See Wisconsin decision with (2d through Benchbook, 22-6 ed. vol. CR 22-3 cial 2001). rights, "Ifthe circuit As with other constitutional reviewing may colloquy, to conduct a court fails record, that there was valid find, not based on the (involving Klessig, 211 2d at 206 waiver.. . ." counsel). us, before and what 25. Wenow turn to the facts remedy proper court fails to when the circuit is the adequate colloquy. circuit We hold that the conduct an evidentiary hearing on whether hold an court must knowing, right intelli- the voluntary. to a trial was waiver of requiring per gent, rule of a new and se apply Livingston, not here because on does trial, based personal affirmative written waiver was Anderson's evidentiary right step trial. The to waive already adopt hearing procedure followed to ‍‌​​​​​​​‌‌​​‌‌​​​​​‌​​‌​‌​​​‌​​‌​‌​​‌​‌​‌‌‌​​​‌‌‍we is knowing, plea a defendant's was determine whether intelligent Bangert, voluntary; 131 Wis. 2d at see and knowingly, a defendant 274, and to determine whether 603 intelligently, voluntarily right and waived his to coun- Klessig, Accordingly, sel; 211 2d see Wis. at 207. as the personal colloquy in circuit court did not conduct a this evidentiary hearing case, it must hold an now deter- knowingly, intelligently, mine whether Anderson and voluntarily waived his evidentiary hearing procedure adopt

¶ 26. The we today procedure resolving guilty plea from the stems wáivers and has been extended to resolution of waivers Klessig, 211 to counsel. 2d at 207. The approach appropriate pre- same here. "Nonwaiver is affirmatively sumed unless waiver is shown to be know- ing, intеlligent voluntary." and Id. at 204. The State has overcoming presumption the burden of of non- required prove by convincing waiver, and is clear and knowing, evidence that Anderson's trial waiver was intelligent, voluntary.11 and id. If See at 207. the State satisfy is able to its burden, the conviction will stand. If 11 adopt We convincing proof clear and burden of from Klessig, 194, 207, our decision in State v. 211 2dWis. 564 N.W.2d (1997), involving waiver of the to counsel. We held required prove, by that the State is convincing clear and evidence, that the knowing, defendant's waiver of counsel was intelligent voluntary. Klessig, 207; and 211 Wis. 2d at see also (1986) Bangert, State v. 131 Wis. 2d 389 N.W.2d 12 (requiring State convincing to show clear and evidence that plea knowing, intelligent defendant's was voluntary). We further held that the clear and convincing evidence standard satisfy would the State's burden overcoming presumption of Klessig, of non-waiver. recognize Wis. 2d at 207. While we proof clear, that this burden of is sometimes stated as satisfac tory convincing evidence, we state the burden proof of applied Klessig Bangert, convincing clear and evidence. (burden See Wis JI —Criminal proof 140A in forfeiture actions); Wilson, City 11, 22, see also Milwaukee v. 96 Wis. 2d (1980). reasons, N.W.2d 452 For adopt these we the clear by convincing the State is unable to establish clear and knowingly, intelligently, that the defendant evidence voluntarily jury and waived his trial, the defendant is entitled to a new trial. argument

¶ 27. The State makes one final regard evidentiary hearing. to an The State contends evidentiary hearing that even if proper find that an we is the remedy, hearing, Anderson is not entitled to a allege because he failed to has that he did not know or waiving understand the he was when he executed jury Giebel, written waiver. See State v. (Ct. 1995). App. 207, 217, Wis. 2d 541 N.W.2d 815 However, the facts of this case demonstrate Ander that having difficulty communicating son was with his at torneys, prior accepting and that trial waiver stating, the court admonished Anderson "All I need you you you from for to do I I what tell to do when tell you circumstances, to do it." Under such we find it appropriate to rеmand this case to determine whether knowing, intelligent, Anderson's trial waiver was voluntary. and

I I I In sum, we conclude that while the court's acceptance of Anderson's trial waiver did not face, violate Wis. Stat. on its Anderson's written waiver is insufficient to that establish he know- ingly, intelligently, voluntarily waived his reject argument trial. We Anderson's that trial waiver is invalid because the record lacks the required approval of the court and consent the State. convincing proof establishing standard knowing, intelligent defendant's trial waiver was voluntary. approved trial waiver Anderson's

The court scheduling accepting a record, bench the waiver on conducting subsequently a trial in this trial, bench and jury trial consented to Anderson's case. The State also voicing by participating in a trial without bench objection. requested any a Anderson bench Because subsequently trial, we trial, received a bench hold rely to invalidate he cannot on the State's silence that jury trial waiver. his Although Anderson submitted a written form, we find that the circuit court trial waiver personal by failing engage in a Anderson

erred Recognizing colloquy regarding the trial waiver. right, a fundamental we that a involves every personal colloquy in mandate the use of a case defendant seeks to waive his or her where a criminal rely Klessig, right explicitly on to a trial. We where presented here, to those we faced circumstances similar every colloquy a in mandated the use of case and we right her a defendant seeks to waive his or where colloquy determin- counsel.12A is the clearest means of simply mandating are a The dissent contends that we explaining authority. Dissent at new rule without our source of dissent, however, ignores our reliance on State v. 194, 206, (1997), 2d 564 N.W.2d 716 where this Klessig, Wis. similarly colloquy every case mandated use of right a defendant seeks to waive his or her to counsel. As where above, rely Klessig authority to explicitly stated we on for our colloquy a criminal defendant seeks to waive mandate where Although explicit Klessig, his her to a not or rely superintending authority in the court seemed to on our VII, 3 of the Wisconsin Constitution to mandate Article Section superintending authority Our "enables colloquy case. ordinary litigation in the the court to control the course of lower necessary and "is as broad and as flexible as to insure the courts" Jezwinski, justice." 2d due administration of Arneson v. 206 Wis. ing knowingly, intelligently, that the defendant is voluntarily waiving jury trial, and a colloquy postconviction documents valid waiver for appellate proceedings. motions and Because circuit engage personal colloquy, court did not in a Anderson we remand this case to the circuit court for an eviden- tiary hearing determine whether Anderson know- ingly, intelligently voluntarily waived his jury trial.

By appeals the Court.—The of decision court is reversed, and the cause is remanded to the circuit court. (dissenting). Tyran

¶ PROSSER, 30. DAVIDT. J. Anderson asked the court to review to this case resolve appeals a conflict between the court of decision State (No. 2000) January 98-3101-CR, v. Hoffman, and single-judge appeals the here, court of decision both unpublished. signed

¶ Hoffman, 31. In the defendant a written by jury proceeded waiver of trial case to the a bench colloquy trial. no There was with the defendant on the explicit expression ap- record before and no proval by by court the or consent the state. The court of appeals colloquy determined that the absence of an oral making to determine whether the defendant was voluntary knowing give up choice to his "constitutionally trial made his waiver infirm." Moreover, court ruled that failure of the circuit (1996) omitted). 217, 226, (quoted 556 N.W.2d 721 source As holding Klessig, our superintending demonstrated our authority enough require colloquy broad to where a right. Accordingly, defendant seeks to waive a fundamental we rely authority colloquy on for our Klessig to mandate a where a defendant to seeks waive his or her

607 attorney take action and district to affirmative to court approve or consent to the defendаnt's waiver violated 972.02(1), citing Spiller State, 49 Wis. 2d Stat. v. Wis. (1971). remedy The N.W.2d 242 these 372, 182 said, trial, was not a deficiencies, a new hearing, pursuant Krueger State, for a v. remand 84 (1978); 272, 282, 2d State Wis. 267 N.W.2d 602 v. Livingston, 561, 573, 2d 464 N.W.2d (1991); Moore, 669, 671, and State v. 97 Wis. 2d (Ct. 1980). App. N.W.2d551 Anderson, 00-1563-CR, In un- State v. No. (Wis. 2000), slip op. App. Judge published Ct. Dec. contrary Wedemeyer on Ted came to conclusions these creating an for this court issues, intradistrict conflict resolve. opinion majority appears strike ground Yet,

a middle doing decisions. between two opens body it door to a so, substantial agree Judge law. Because I with new troublesome Wedemeyer's disagree reasoning and conclusions and majority's decision, decision to I reverse respectfully dissent.

rH provides ¶ The 34. Wisconsin Constitution for I, of trial in Article "The Section 5: of by jury inviolate, shall extend trial remain and shall by may at law . . a trial waived all cases . but be by parties prescribed in all in cases law" manner added). (emphasis prescribed legislature

¶ The manner 35. 972.02(1). § waiving jury a Stat. trial in Wis. stat- ute reads:

Except provided chapter, as criminal otherwise this by jury be a selected in s. prescribed cases shall tried

608 805.08, unless the waives a in writing or defendant record, open statement in court... on the with the approval of the court and the consent of the state added). (emphasis 972.02(1) § 36. Section dates back 63, to 1970. (effective 1970). July 255,

ch. Laws of 1969 1, This preceded by section, in turn, was several earlier stat- § (1959), § (1925), utes, Wis. Stat. 957.01 357.01 § (1911), language 4687 which contained similar autho- rizing jury writing. Consequently, waivers in Wisconsin statutory approved jury writing law has waivers in century. close to a Any question § whether Wis. Stat. I,

is linked to Article Section 5 was settled in Dascenzo (1965). State, v. previous 26 Wis. 2d 132 N.W.2d 231 In a Jennings case, State, v. 134 Wis. 114 N.W. (1908), 492 this court held that an accused could not by jury waive the to trial in the absence of legislation providing for waiver. The court said: "If it is good public policy privilege deemed to extend the waiving policy cases, in criminal ‍‌​​​​​​​‌‌​​‌‌​​​​​‌​​‌​‌​​​‌​​‌​‌​​‌​‌​‌‌‌​​​‌‌‍such should expression appropriate legislative find nings, action." Jen legislature at Thereafter, Wis. passed a statute —identified Dascenzo as Wis. Stat. 957.01(2), 972.02(1) § predecessor the immediate to Wis. Stat. prescribed waiving the manner of —that jury interpreted

¶ 38. This court later trial permit attorney waiver statute to a defendant's to waive theory defendant, on behalf of a on the presence acquiescence and silent of the defendant attorney's authority demonstrated the attorney's and made the Dascenzo, statement the defendant's own. 2d 230; at State ex rel. Derber v. Skaff, Wis. 2d (1964). court But in the 269, 274, 125 N.W.2d Krueger, In the court and Dascenzo. Derber overruled said: rel. Derber v. State ex [W]e now overrule Skaff . a trial court.. they permit v. State insofar as

Dascenzo that a waiver a defendant's silence presume from expression an by counsel is jury trial made the voluntary Even if it is knowing intent. defendant's attorneys will that defense to assume most reasonable meaning to the and its a client of inform expect a defendant, wholly unreasonable to it seems matters to understand these who does not defendant attorney. hold that by his Wе a waiver made contradict these the aid of support, must without the record in fact that the defendant the conclusion presumptions, voluntary choice. knowledgeable made a demonstrat- that henceforth a record further hold [W]e give up willingness and intent to ing defendant's established tried must be to be time We do not at this accepted. is before making such procedure to be followed adopt a formal a record. omitted). (citations

Krueger, 2d at 281-82 84 Wis. in State v. Liv court clarified the law 39. The Krueger ingston. made no reference to decision had 972.02(1). Livingston, 2d at 568. 159 Wis. Wis. Stat. Livingston explained However, Krueger "reasoning underlying and the court's 972.02(1), enacting reasoning legislature's Stats., sec. part. is, That what was said in relevant are coextensive by jury regard Krueger to waiver of with 972.02(1)." directly applicable Id. to sec. approval pas- quoted The court then

sage Moore, 2d at 671-72: "Our 97 Wis. from State v. supreme legislature court and our . . . have taken a per position; writing is, strict waiver in se that must be by open by or oral statement Livingston, court. We abide must that rule." 2d at 569. Summing Livingston up,

¶ 41. the court said that any by jury the waiver of defendant's to trial must by be made an affirmative act defendant: personally defendant must act ... The affirmative defendant, act the to personal order constitute a waiver, comply must be such as with one to at least of specific the effecting provided means of in sec. 972.02(1).... If the defendant waives the "in writing" under the accepting statute when the written waiver, judge question the still should the defendant to the understanding voluntariness and his action. of added). (emphasis Id. at 569-70 Livingston ¶ 42. The court the described best practice compliance follow in to to addition with the majority goes beyond statute. Now the articulation urging practice to best mandate a new rule that with conflicts the statute.

II Conceivably, ¶ 43. this court could held that have the United States Constitution or the Con- Wisconsin requires colloquy stitution between a defendant may the court before defendant waive the However, such not a cоnclusion would have embarrassingly been well founded and have been would many previous pronounce- inconsistent court pursue path. Thus, ments. court did not that Alternatively, court could reasoned have sufficiently ambiguous adding that the statute was requirements new for an effective waiver would not statutory position But that would conflict with the text. statutory language been tenable because the not have clear. rely Finally, the court could have tried superintending authority

upon contained Article its 3(1) But of the Wisconsin Constitution. this VII, Section superintending authority is case over all courts court's specific, supervisory

contemplating writs and use empower It does not this individual relief. in individual cases to effect some

rewrite statutes modify objective.1 may judicial supreme The court or suspend relating pleading, practice, and statute to pursuant promulgates procedure a rule when the entirely procedure § that to Wis. Stat. 751.12.2 But 1 3(1) VII, Article the Constitution Section of Wisconsin supreme superintending "[t]he court shall have states authority This language over all courts." is based administrative large part same constitution: upon in the section 1848 superintending have supreme general "The court shall control courts; power it writs of over all inferior shall have issue mandamus, injunction, certiorari, corpus, quo warranto, habeas writs, original and to and deter and other and remedial hear Const, (1849). VII, § 3 mine the same." Wis. art. See Revised (1849) of at 28-29. Statutes Wisconsin language nor the new consti Neither the old constitutional court, empowers part superin its language tutional this of in tending authority, to rewrite individual decisions. statutes authority superintending all courts author The over embodies litigation" ity ordinary control course of in inferior "to the courts, Philadelphia Bank State ex rel. Fourth Nat'l v. Johnson, (1899); 79 N.W. 1081 it does not legislative power the erase a authorize court to valid exercise opinion. in an 751.12, § pleading practice, Stat. Rules of Wisconsin part:

provides relevant supplementing judicial statutes different from mandates whenever the court thinks it can do a better legislature. job than the majority simply Hence, mandates a new explaining authority:

rule its source of without right right.... to a trial is a fundamental As previously, right "[t]he noted this court has held that by jury rights a trial is one of the that is 'so fundamen concept impartial making, tal of fair and decision relinquishment that their must meet the standard set (1938).'" Zerbst, [State forth Johnson v. 304 U.S. 458 (1989)]. Resio, 687, 694, [148Wis. 2d v.] 436 N.W.2d603 The waiver of a trial therefore must be an inten relinquishment tional or abandonment of a known or Id. privilege. While Wis. Stat. es procedure waiving tablishes trial, statutory requirements are not sufficient to knowing, determine whether defendant's waiver is Therefore, intelligent, voluntary. based on our recognition that a a fundamental involves right, personal colloquy we mandate use of a every case where a criminal defendant seeks to waive his or her

Majority op. ¶at shall, by by supreme promulgated The state court rules it from time, regulate pleading, practice procedure judiсial in time to and courts, proceedings purpose simplifying in all the same for the litigation upon promoting speedy and of determination of its modify abridge, enlarge the substan- merits. The rules shall not or any litigant.... rights relating pleading, tive Ml statutes to may by

practice procedure suspended and be or rules modified modifying suspending promulgated under this section. No rule or may adopted public such statutes he until the court has held a hearing with reference to the rule. added). (emphasis § Wis. Stat. 751.12

613 passage, majority ¶ In seeks to draw 47. this making procedure sharp distinction between (waiver writing" "by in "in or waiver statement waiver court") requirement open be and a waiver intelligent, voluntary. process, knowing, it and In the disregards it renders I, Article Section 972.02(1) meaningless. § Stat. regimen, presump-

¶ In new there is no 48. this by in tion that a waiver or a waiver statement written by adequate. Standing open the defendant adequate. fact, In "in alone, neither is deemed a waiver writing" open and a "statement in court" according together inadequate because, the ma- are jority, personal colloquy in "we mandate the use of a Majority every op. ¶at 23. case." holding ¶ elevates ritual over common 49. This places past jeopardy, and it It convictions sense. creates landmines for future cases. First, noted, the decision makes Wis. compliance

Stat. irrelevant because absolutely nothing. contrary the statute means This is Livingston to our decision in other cases. change appears Second, the decision respect knowing voluntary law with waiver of a Resio, 687, 691, trial. In State v. 148 Wis. 2d 436 (1989), the court reviewed a in which N.W.2d case colloquy there was a with the defendant connection jury trial, with his waiver of a but the defendant was requirement not made aware of the that a verdict in a The court affirmed the trial must be unanimous. saying: waiver, agree

We with the Seventh Circuit United States ex (7th DeRobertis, rel. Williams v. 715 F.2d denied, 1983), (1984), Cir. cert. 464 U.S. 1072 that a by jury right to a trial is valid defendant's waiver "purpose he or she understands the basic when jury trial... . funсtion" of a key right feature of the to a trial [T]he

. . . group defendant's case is tried before a the community twelve fellow citizens rather than judicial official. When a waives single a state defendant understanding that his or her by single judge determined a guilt or innocence will be by group lay persons, rather than a twelve that waiver ‍‌​​​​​​​‌‌​​‌‌​​​​​‌​​‌​‌​​​‌​​‌​‌​​‌​‌​‌‌‌​​​‌‌‍is valid and effective. added). (emphasis emphasized lan- Id. at 695-96 guage in be viewed as a correct statement Resio cannot today's of law after decision. majority's at odds Third, new rule is example, precedent. recent For in State v. Hans (1998), 230, 226, 219 Wis. 2d 580 N.W.2d171

ford, I, held that Article Section 7 of the Wisconsin court guarantees per of 12 Constitution striking cases, in all criminal down a state statute sons juries six-person cases. that mandated misdemeanor Hansford's conviction for obstruct The court reversed timely ing he had filed a for a an officer because motion jury. 12-person Huebner, v. 2000 WI But then State ¶59, 727, 2d 611 N.W.2d the court 235 Wis. 12-person held that a defendant waived his the defendant and his counsel failed because both object six-person request 12-person or to They jury. action; affirmative their silence took no incorrect? constituted waiver. Was the Huebner decision Burns, 2d case, In another State v. 226 Wis. (1999), 762, 594 this considered N.W.2d requires question that a Stat. whether Wis. articulate a of plea defendant and expressly personally in in or no contest on the record order guilty open plea. for a of conviction to be entered on the judgment The record in Burns was clear the defendant was do you plead?" never asked the "How directly question: to the offense charged and that he never stated his plea on the record. Id. Nonetheless, affirmed the court only because it concluded that the inference conviction totality of the facts and circumstances from the possible in the record was that the defendant intended to plead no contest. Id. at 764. The court of its concerns about spoke pleas:

¶ continuing deep [T]his court has and сoncerns about affirming plea guilty on a of or no conviction based expressly the has and contest when defendant not personally plea open on the articulated record event, Pleading guilty court. or no contest is a serious sobering By entering pleas, "serious and occasion." such heavy defendants relieve the state of burden of beyond They proving guilt their a reasonable doubt. give up important rights [such also constitutional as by jury] expressly personally A ... defendant and pleading guilty open or no contest on the record in way circuit court is the best for a court to assure itself personally that the defendant has made decision to plead. so

Id. at 764-65. the Burns court did not rely Nonetheless, totality on ritualistic words. It looked to the facts and circumstances to determine the defendant's intent to plead.3 Burns, In the court of the best spoke prac-

tice for the circuit court in taking plea: here, competent attorney defendant in had a As Burns during рroceedings. at his side the relevant That is one of the ought facts and circumstances that to be considered. responsibility circuit to do Recognizing the courts' efficiently, justice manage and to caseloads this court n strongly urges circuit courts to follow usual practice asking directly defendants preferred they personally open court and on the record how entering pleas plead charged to the offenses on the record. on

Id. at 765. The court offered a similar admonition Livingston, 2d at waivers previously discussed in this dissent. plea policy 56. There are sound reasons colloquies

colloquies and on the record in open This court is authorized to utilize court. § rule-making procedures in Stat. 751.12 to re- statutory colloquies quire law. That as a matter of these overriding very different, however, from the terms of is judicial opinions in the court is a statute whenever moved to do so. my ought view, In to follow Wis. this court validity by giving presumption of a

Stat. "by writing" jury "in or a waiver statement open agree propositiоn I that a in court." with knowing, colloquy determine the waiver is whether voluntary intelligent, and should be and is desirable encouraged. But a defendant who waives by jury writing" "by open in court" "in or statement trial benefiting of counsel—and from the assistance while required to make then has a bench trial —should be showing prima not or her waiver was facie knowing, intelligent, voluntary before he or she is given hearing. The not be entitled to a defendant should in trial, an automatic new as was afforded Hoffman.

Ill totality of facts circumstances Tyran this case leaves no doubt that Anderson's waiver knowing, intelligent, voluntary. of a trial was hearing required. Hence, no additional The circuit findings court's should be affirmed. charged disorderly

¶ 59. Anderson was with con- 9,1998, duct on December for an incident that occurred charge previous November 18. The was later battery. appear- amended to From Anderson's initial 9,1998, ance on December 10,1999, to November when ap- court, tried Anderson's case was to the Anderson peared always at least times. He was represented counsel. presiding judi-

¶ 60. The record that the reveals repeatedly during cial officers mentioned appearances. January 26, 1999, these attorney requested On Anderson's trial date. The court sched- 25, 1999, 23, uled trials for March then June September then 16, 1999, but all had to be rescheduled explanation reasons, for various with discussion and presence of the defendant. Judge Mary ¶ 61. 13, 1999, On October Circuit Kuhnmuench scheduled a trial for November engaged colloquy 1999. The court in an extensive following passages part the defendant. The are of that colloquy: sorry

THE DEFENDANT: I am the Court has to deal this, something though like it even is fictitious... . I going intend to trial with it. Even if the case was battery, going reissued as a I still intend on on with the prove my I gathered case to innocence.... haven't everything yet. I conflicting need statements that complainant] my hearing, [the made in revocation police that she made on the conflicting statements things like report, report, on victim/witness that. extent, pursuing this case to the full

I intend on battery, disorderly or whatever.... you jury trial right. give All We will

THE COURT: date, your attorney of and Mr. Connors remains as jury.... represent you in matter at record and will this absolutely no contact with [Y]ou . . . are to have until this case is resolved complainant]... [the guilty guilty not through either a trial or with a or verdict. that, to me and you If violate don't come back

... meant, Judge." you You say, "I didn't understand what intelligent man. You an articulate and seem to be fully saying you I am here.... understand what made. No contact will be THE DEFENDANT: give you a right. Very good. All We will THE COURT: jury trial date. trial, all parties 62. On the date set Scott Attorney Kuhnmuench. Judge before

appeared time to confer with had been additional given Connors hearing. Attorney the pre-trial the defendant before defendant in his own he to call the expected Connors said of the defendant's defense, a discussion necessitating impeachment in relation to anticipated criminal record for rob- Anderson had two convictions jury. before the a conviction for receiv- convictions for bery, burglary, two for intimida- felony and a conviction property, stolen ing no about dispute a witness. There was tion of convictions, number of which Connors said he had discussed with the defendant. Counsel also discussed jury instructions. presence Then, defendant, in the of the

following exchange occurred: quick

ATTORNEY CONNORS: One matter. There is— I've possibility discussed the with Mr. Anderson of trial, having my a bench trial instead and it's of understanding very good possibility there's a at 1:00 that we could have a bench trial. Would that be a problem? all,

THE bringing jury up COURT: Not at but I'm anyway, going require you I'mand to have a waiver added). (emphasis trial form in the file recess, 64. After a reconvened. defen- signed dant had submitted a form that read as follows: defendant, And now comes the above named and in proper person hereby expressly by his own waives trial and consents to immediate trial before the court jury. without a giving up my right my

I will be to have case decided people sitting jury; as a I all 12 understand that people agree of those would hаve order to reach a verdict. presence Tyran

¶ 65. In the Anderson and his attorney, the court then stated: receipt by jury

The Court is in of a waiver of trial signed today's dated date. The court will knowing receive it and enter it in the trial a voluntary waiver of his trial. ‍‌​​​​​​​‌‌​​‌‌​​​​​‌​​‌​‌​​​‌​​‌​‌​​‌​‌​‌‌‌​​​‌‌‍ We will proceed with a bench trial 1:30 this afternoon. Are at. added.) any questions (Emphasis there the court ? protestations. questions or ¶ no There were 66. trial before case went to the break, the After a lunch court. argues to this court that

¶ now The defendant requirements complied although the with he satisfy the minimum did not statute, his actions waiver requirements responds majority that of other law. Anderson's waiver record whether tell on this it cannot voluntary. Ironically, knowing, intelligent, it was time it concludes at the same makes this statement by silently clearly going demon- state forward, the a consent to waive strated its majority's disagree conclusion. I with participant experienced Tyran was an Anderson system justice criminal convictions with six criminal рrobation. eleventh court After his of and a revocation appearance counsel at side case, this signed proceedings, through every step Anderson developed explicit form that had been waiver an compliance County in in the courts of Milwaukee use counsel law. His and case Stat. with Wis. and the represented that he to the court on the record waiving possibility had discussed defendant disputed On that assertion. never trial. Anderson attorney's contrary, statement he affirmed his pres- signing in the defendant's Thereafter, the form. knowing and the waiver circuit court found ence, the questions voluntary. if he had was asked The defendant likely defendant's for the motive he had none. One testify, recognizing that six intent to was his waiver cred- tend to undercut would criminal convictions jury. testimony ibility before of his contains overwhelm- record in this case 69. The knowing, Tyran ing made Anderson evidence that voluntary intelligent, of his Resio, trial. See 148 Wis. 2d at 695-96. Because the majority reaches a different conclusion and because the majority support, initiates I other actions that cannot I respectfully dissent.

Case Details

Case Name: State v. Anderson

Court Name: Wisconsin Supreme Court

Date Published: Jan 24, 2002

Citation: 638 N.W.2d 301

Docket Number: 00-1563-CR

Court Abbreviation: Wis.