State v. Jerry A. Leister

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 24, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP365-CR Cir. Ct. No. 2017CM557

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JERRY A. LEISTER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and order of the circuit court for Sauk
County: PATRICIA A. BARRETT, Judge. Reversed and cause remanded for
further proceedings.

¶1 KLOPPENBURG, J.1 Jerry A. Leister appeals his conviction for
intentional mistreatment of animals. He argues that he was denied his

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This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(b) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise stated.
No. 2020AP365-CR

constitutional right to counsel because: (1) the circuit court permitted him to
proceed pro se without conducting a colloquy ensuring that Leister was
knowingly, intelligently, and voluntarily waiving his right to counsel,; and (2) the
State failed at a postconviction evidentiary hearing to meet its burden of proving
by clear and convincing evidence that Leister had in fact knowingly, intelligently,
and voluntarily waived his right to counsel. See State v. Klessig, 211 Wis. 2d 194,
206, 212-213, 564 N.W.2d 716 (1997) (mandating a colloquy in every case where
a defendant seeks to proceed pro se and delineating the State’s burden of proof at a
postconviction evidentiary hearing where the circuit court failed to conduct an on-
the-record colloquy).

¶2 As I explain, the State in its response brief concedes the absence of
an on-the-record colloquy but fails to address in any meaningful way Leister’s
argument that the State filed to meet its burden at the postconviction evidentiary
hearing, or to address the record and legal authority on which that argument is
based. Accordingly, I accept Leister’s argument and, consistent with the mandate
in Klessig, I reverse and remand for a new trial. Id. at 214 (directing that, if the
State fails to prove by clear and convincing evidence that the defendant’s waiver
was knowing, intelligent, and voluntary, the defendant “is entitled to a new trial”).

BACKGROUND

¶3 The following pertinent facts are undisputed. At his initial
appearance in this case, Leister appeared without an attorney and waived his right
to an attorney for purposes of that appearance. At the return date, Leister again
appeared without an attorney and explained that he was trying to obtain an
attorney and had contacted two law firms. At two subsequent return dates, Leister
appeared without an attorney but repeated his desire to retain an attorney and told

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the circuit court that he needed more information from the court to supply to a
prospective attorney. On both occasions, the court agreed to give Leister more
time to obtain an attorney. The court also offered Leister a waiver of right to an
attorney form, which Leister declined.

¶4 At the next return date, Leister still had not retained an attorney but
repeated his desire to do so. The circuit court required Leister to enter a plea.
Leister asserted that he had been advised by law firms that he should not make a
plea until he was able to consult with his attorney. The court entered a not-guilty
plea on Leister’s behalf and informed him that he could still retain an attorney.

¶5 At the next hearing, Leister appeared with an attorney who explained
that, although Leister had spoken with several law firms and had made efforts to
obtain a lawyer earlier, he had only retained the attorney the previous week. The
attorney stated that her representation was contingent on receiving a continuance
for the upcoming jury trial. The circuit court granted the continuance. Before the
next hearing, the attorney filed a motion to withdraw and stated in an affidavit that
Leister “failed to comply with the terms and conditions of the Representation and
Fee Agreement.” The court granted that motion.

¶6 Leister appeared pro se at all subsequent proceedings, including the
jury trial. The circuit court did not, in any of the subsequent proceedings,
including the trial, conduct an on-the-record colloquy with Leister to ascertain
whether he knowingly, intelligently and voluntarily waived his right to counsel.
The jury found Leister guilty of mistreating an animal.

¶7 Leister retained an attorney after trial (different from the attorney
who had briefly represented him before trial) and, pertinent to this appeal, filed a
motion for postconviction relief, specifically requesting a new trial on the ground

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that the circuit court failed in its obligation to ensure that Leister had knowingly,
intelligently, and voluntarily waived his right to counsel. The court held an
evidentiary hearing and concluded that Leister’s waiver was knowing, intelligent,
and voluntary, and that he was competent to represent himself at trial.

¶8 Additional background facts will be provided as pertinent.

DISCUSSION

¶9 The federal and Wisconsin constitutions provide an identical right to
counsel. U.S. CONST. amends. VI, XIV; WIS. CONST. art. I, § 7; Klessig, 211
Wis. 2d at 202–03 (“The scope, extent, and, thus, interpretation of the right to the
assistance of counsel [are] identical under the Wisconsin Constitution and the
United States Constitution.”). Whether Leister was denied his constitutional right
to counsel is a question of constitutional fact that we review de novo as a question
of law. Klessig, 211 Wis. 2d at 204.

¶10 The right to counsel is “necessary to insure fundamental human
rights of life and liberty,” Johnson v. Zerbst, 304 U.S. 458, 462 (1938), and “is
indispensable to the fair administration of our adversarial system of criminal
justice,” Maine v. Moulton, 474 U.S. 159, 168 (1985). C.f. State v. Forbush,
2011 WI 25, ¶13, 332 Wis. 2d 620, 796 N.W.2d 741 (calling the right to counsel
“a fundamental right”). Because “the right to counsel is considered so
fundamental to a fair trial, a prerequisite to proceeding pro se is a knowing,
intelligent, and voluntary waiver of the right to counsel.” State v. Darby, 2009 WI
App 50, ¶17, 317 Wis. 2d 478, 766 N.W.2d 770 (quoted source omitted). The
circuit court must also determine that the defendant is competent to proceed pro
se. Id. (citing Klessig, 211 Wis. 2d at 203). “If these conditions are not satisfied,

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No. 2020AP365-CR

the circuit court must prevent the defendant from representing himself [or
herself.]” Klessig, 211 Wis. 2d at 203–04.

¶11 On appeal, Leister does not challenge the circuit court’s
determination that he was competent to proceed pro se. Rather, he challenges the
circuit court’s conclusion that he knowingly, intelligently, and voluntarily waived
his right to counsel. Accordingly, I limit my analysis to that issue.

¶12 In order to satisfy the condition of a knowing, intelligent, and
voluntary waiver of the right to counsel, Wisconsin law requires the use of an on-
the-record colloquy in every case where a defendant seeks to proceed pro se.
Klessig, 211 Wis. 2d at 206. In announcing this requirement, our supreme court
explained:

[A] properly conducted colloquy serves the dual purposes
of ensuring that a defendant is not deprived of his [or her]
constitutional rights and of efficiently guarding our scarce
judicial resources. We hope that our reaffirmation of the
importance of such a colloquy will encourage the circuit
courts to continue their vigilance in employing such
examinations.

Id. The colloquy must show that the defendant “(1) made a deliberate choice to
proceed without counsel, (2) was aware of the difficulties and disadvantages of
self-representation, (3) was aware of the seriousness of the charge or charges
against him [or her], and (4) was aware of the general range of penalties that could
have been imposed on him [or her].” Id. Where a circuit court fails to conduct
such a colloquy and the defendant files a motion for postconviction relief, the
court must hold an evidentiary hearing to determine whether the waiver was
knowing, intelligent, and voluntary. Id. at 207. At such a hearing, the burden falls
on the State to overcome the presumption of non-waiver by proving by clear and
convincing evidence that the defendant knowingly, intelligently, and voluntarily

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No. 2020AP365-CR

waived his or her constitutional right to counsel. Id. If the State fails to meet its
burden, the defendant “is entitled to a new trial.” Id. at 207, 214.

¶13 Here, the parties agree that a Klessig colloquy to ascertain that
Leister knowingly, intelligently, and voluntarily waived his right to counsel was
not conducted at any time after his retained counsel withdrew and he proceeded
pro se. Thus, the sole issue on appeal is whether, at the evidentiary hearing that
the circuit court properly held on Leister’s motion for postconviction relief, the
State satisfied its burden of proving, by clear and convincing evidence, that Leister
had knowingly, intelligently, and voluntarily waived his right to counsel. In
addressing this issue, I first provide additional pertinent background of the
proceedings in the circuit court. I next review the parties’ arguments on appeal. I
then explain why I accept Leister’s argument that the State failed to satisfy its
burden based on the State’s failure to offer any developed argument to the
contrary.

¶14 In the circuit court, the State did not file any written response to
Leister’s motion for postconviction relief. The State also did not produce any
evidence or call any witnesses at the evidentiary hearing on Leister’s motion, at
which Leister appeared with counsel. The prosecutor explained at the hearing that
“I did review everything, and there is some merit, I will concede, to what [Leister]
submits” but stated that the State ultimately did not respond to Leister’s motion
because it was “ludicrous.” The State argued generally that Leister’s previous
experience in the criminal justice system, his success in this case at defending
himself and obtaining a “not guilty” verdict on one of the charges against him, and
his repeated appearances in this case without an attorney were enough to defeat
Leister’s motion, although the State conceded that “that’s not what Klessig says.”
The State did not cite any authority to support its position.

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No. 2020AP365-CR

¶15 The circuit court concluded, based upon its review of the record of
the pretrial proceedings in this case and its awareness of Leister’s “approach” to
other cases in the Sauk County circuit court, that Leister had knowingly,
intelligently, and voluntarily waived his right to an attorney, and denied Leister’s
motion.

¶16 Leister argues on appeal that the circuit court erred because the State
failed to meet its burden of proving, by clear and convincing evidence, that Leister
knowingly, intelligently, and voluntarily waived his right to counsel. Citing the
record, Leister asserts that the hearing on his motion was “an evidentiary hearing
without evidence” and argues that “[t]he State never attempted to meet its burden
of proof” by presenting evidence pertinent to the factors set out in Klessig. Citing
pertinent legal authority, Leister also argues that “The [circuit] court devised a
new test not prescribed by Klessig; that the court was to retroactively consider
Leister’s relative experience in the courtroom” in determining whether Leister
knowingly, intelligently, and voluntarily waived his right to counsel absent the
State’s presentation of any evidence, including testimony by Leister.

¶17 The State offers a one and one-half page argument in response.
Without any citations to either the record or legal authority, the State seems to
assert that this court should conclude that Leister knowingly, intelligently, and
voluntarily waived his right to counsel simply by virtue of his proceeding pro se in
this case, because his “active, forthright” defense demonstrated his desire to
represent himself and his pro se appearances in other cases demonstrated that
Leister was sufficiently experienced in the criminal justice system to know his
rights.

¶18 In reply, Leister argues that:

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No. 2020AP365-CR

The State relies entirely on [conclusory] assertions. The
State’s brief does not contain a single cite to the record
which it purportedly relies on. Additionally, the State
ignores a crucial fact; that Klessig assigned the burden of
proof at the [evidentiary hearing] to the State... .

[T]he State failed to address the Klessig
requirements. Worse, the State also failed to introduce any
facts to support its arguments.

Leister asks this court to rule in his favor based on the State’s failure to cite either
legal authority or the record.

¶19 It is well established that this court generally does not consider
arguments unsupported by citations to legal authority or to the record. See State v.
Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (“Arguments
unsupported by references to legal authority will not be considered.”); Industrial
Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318
Wis. 2d 148, 769 N.W.2d 82 (“Arguments unsupported by legal authority will not
be considered, and we will not abandon our neutrality to develop arguments.”)
(quoted source omitted); State v. McMorris, 2007 WI App 231, ¶30, 306 Wis. 2d
79, 742 N.W.2d 322 (court of appeals may “choose not to consider … arguments
that lack proper citations to the record”). Nor does this court have any obligation
to develop the record on a party’s behalf. See Jensen v. McPherson, 2004 WI
App 145, ¶6 n.4, 275 Wis. 2d 604, 685 N.W.2d 603 (“It is not this court’s
responsibility to sift and glean the record in extenso to find facts supporting [the
party’s] argument.”). “A party must do more than simply toss a bunch of concepts
into the air with the hope that either the ... court or the opposing party will arrange
them into viable and fact-supported legal theories.” State v. Jackson, 229 Wis. 2d
328, 337, 600 N.W.2d 39 (Ct. App. 1999). See also WIS. STAT. RULE
809.19(1)(d) and (e) (setting forth requirements for appellate briefs, including that
arguments be supported by adequate factual and legal citations).

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No. 2020AP365-CR

¶20 I agree with Leister that the State fails to develop any meaningful
argument that applies pertinent legal authority to the facts of record, and instead
responds to Leister’s argument only with conclusory assertions unsupported by
any citations to the law or the record. Accordingly, consistent with the legal
authority set forth above, I do not consider whatever arguments the State means to
make and I accept Leister’s argument that the State failed to meet its burden to
prove, by clear and convincing evidence, that Leister knowingly, intelligently, and
voluntarily waived his right to counsel. Consistent with the express mandate in
Klessig, I therefore remand for a new trial. See Klessig, 211 Wis. 2d at 214
(directing that the defendant is “entitled to a new trial” where the State fails to
meets its burden of proving, by clear and convincing evidence, that the defendant
knowingly, intelligently, and voluntarily waived his or her right to counsel).

CONCLUSION

¶21 For the reasons explained above, I reverse and remand for a new
trial.

By the Court.—Judgment and order reversed and cause remanded
for further proceedings.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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