On Point: 3. Waiver of right to counsel

State v. Robert M. Christianson, 2024AP1884-CR, 2/12/26, District IV (recommended for publication); case activity (including briefs)

Christianson pleaded no contest to OWI 8th after the circuit court rejected his collateral challenges to 3 prior OWI convictions. On appeal, he renews his arguments that the three convictions are invalid because he did not have legal counsel, he did not knowingly, intelligently, and voluntarily (“KIV”) waive his right to counsel, and the court handling the case failed to find that he was competent to proceed without counsel in each case. COA concludes that Christianson made a prima facie showing that he was denied his constitutional right to counsel in all three cases, but the state met its burden to show that he nonetheless validly waived his right to counsel in 2 of the 3 cases, and the circuit court properly found that he was competent to proceed without counsel.

State v. Jesse J. Delebreau, 2015 WI 55, 6/16/15, affirming a published court of appeals decision; majority opinion by Prosser, concurrence by Roggensack, dissent by Abrahamson; case activity (including briefs)

Last time SCOW addressed a defendant’s waiver of the right to counsel after being charged with a crime, the result was 5 separate opinions. Discerning the rule of State v. Forbush required clairvoyance. Here, SCOW holds definitively that a defendant’s waiver of his right to counsel in an interrogation before he is charged (under the 5th Amendment) is sufficient to waive his  right to counsel after he is charged (under the 6th Amendment) even though he has appeared in court with a public defender. Despite being represented by an attorney, the defendant must affirmatively invoke his right to counsel. The result is the same under Article 1 §7 of the Wisconsin Constitution.

The Wisconsin Supreme Court is revisiting State v. Forbush, 2011 WI 25, 332 Wis. 2d 620, 796 N.W2d 741, a splintered decision (4 different rationales) with an impenetrable rule.  In this case, the State obtained two statements from the defendant after he had appeared at arraignment with appointed counsel.  The issue is whether the State violated his Sixth Amendment rights.

State v. Jesse J. Delebreau, 2014 WI App 21, petition for review granted, 5/23/14, affirmed, 2015 WI 55; case activity

You remember State v. Forbush, 2011 WI 25, 332 Wis. 2d 620, 796 N.W.2d 741? That’s the one that considered whether Montejo v. Louisiana, 556 U.S. 778 (2009),