State v. Brian T. Flatoff

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.
June 3, 2026
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP566-CR Cir. Ct. No. 2015CF589

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BRIAN T. FLATOFF,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Winnebago County: JOHN A. JORGENSEN, Judge. Affirmed.

Before Neubauer, P.J., Gundrum, and Grogan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Brian T. Flatoff appeals the judgment convicting
him of numerous charges—including false imprisonment, attempted homicide, and
No. 2023AP566-CR

felony murder. He also appeals the order denying his postconviction motion. On
appeal, Flatoff argues that the trial court erred in finding that he waived and
forfeited his right to counsel during trial. He also argues that the court erred in
appointing one of his public defenders as standby counsel. We affirm.

BACKGROUND

¶2 Following a confrontation in which he took hostages and opened fire
on police at Eagle Nation Cycles in Neenah, Flatoff was charged in
December 2015 with a number of crimes, including: false imprisonment,
recklessly endangering safety, attempted homicide, felony murder, and felony bail
jumping. Flatoff was assigned a public defender to represent him, and he pled not
guilty due to a mental disease or defect.

¶3 During the year and one-half that followed the charges, Flatoff
rotated through numerous appointed attorneys. Of the first five, three withdrew
for personal reasons such as retirement or conflict of interest. The others
withdrew after Flatoff refused to cooperate with them. After Flatoff’s fifth
attorney withdrew, the trial court cautioned him that at some point the public
defender’s office might not be able to find new counsel for him—either because
his trial date was too close or because the office might “run out of attorneys.”
Within weeks of two new attorneys being appointed, however, Flatoff wrote to the
court complaining about them. Even though the court strongly urged Flatoff “to
keep an open mind regarding the attorneys that have been appointed[,]” Flatoff
continued writing the court disparaging those attorneys, and they too moved to
withdraw.

¶4 In August 2017, two different public defenders—Ben Szilagyi and
Eric Heywood—were appointed, and a previously-scheduled motion hearing and

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Flatoff’s trial were again adjourned. By the date of the rescheduled motion
hearing, Flatoff had become dissatisfied with them as well.

¶5 At a motion hearing in January 2018, Attorney Szilagyi informed the
trial court that he, Heywood, and Flatoff had reached “a mutual understanding”
that he and Heywood would withdraw and Flatoff would represent himself.
Attorney Szilagyi explained that Flatoff was unwilling to agree with any of
counsel’s strategic decisions:

[B]ased on our conversations with him, it is clear that he
wishes to make the majority, if not the entirety, of the
strategic decisions that are the province of an attorney such
as witnesses to call, questions to ask the witnesses, opening
and closing statements, evidentiary objections, et cetera,
and pretrial motions.

And in further discussing that issue with him, it
essentially came to the point where he advised us that his
desire to do those things was nonnegotiable. And given his
desire and our ethical limitations, we reached a -- more or
less a mutual understanding that he is asking us to
withdraw and to represent himself.

Attorney Heywood further explained that he and Szilagyi had advised Flatoff of
his right to request standby counsel.

¶6 At the January 2018 hearing, Flatoff explained that while he did not
want to give up his right to counsel, he would “no longer accept any counsel
appointments” from the public defender’s office. Flatoff said that his attorneys
were “incompetent” and “ineffective” because they told him that the issues he
wanted to pursue—for example, allegations that evidence had not been properly
preserved—would be frivolous and therefore unethical. Flatoff further claimed
that many of the public defenders assigned to his case had “deliberately hampered
[his] defense.”

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¶7 After listening to Flatoff’s concerns, the trial court clarified that
Flatoff would not accept any other appointments from the public defender’s office.
The court explained, “[I]f you are telling me you will not accept any other
appointments from the Public Defender’s Office, then you’re limited to
representing yourself. Do you understand that?” Flatoff responded that he
understood. The court again confirmed, “And that’s the way you want to
proceed?” Flatoff answered, “Yes, Your Honor. I mean, with objection on the
record, like I said, for potential future litigation.”

¶8 The trial court then confirmed that Flatoff had gone over CR-226,
the waiver of right to attorney form, with counsel and confirmed that Flatoff
understood the information in the form. The court also confirmed that Flatoff
understood that he had a constitutional right to counsel and that if he wanted an
attorney, he could ask the Public Defender’s Office to appoint someone else.
Flatoff said he understood.

¶9 The trial court additionally ensured Flatoff understood that:

• That becoming a lawyer requires extensive training and attorneys often
have years of courtroom experience;

• An attorney could represent him, speak on his behalf in trial court, advise
him of his legal rights and options, and could explain and assist him in legal and
court proceedings; whereas the court could not give him any legal advice, could
not weigh his options for him, and neither the court nor the district attorney were
his lawyers and were not required to explain the law to him;

• When the trial court made decisions, it would ask for both Flatoff’s and
the district attorney’s input;

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No. 2023AP566-CR

• If Flatoff wanted to testify, he would be sworn as a witness and
cross-examined by the State; and

• Flatoff was facing very serious charges with a maximum penalty of over
300 years’ imprisonment and a substantial fine.

¶10 The trial court also elicited the following information from Flatoff:

• He was 49 years old;

• He could write and understand English, had a GED, had attended three
years of college and had earned a 3.87 grade point average;

• He had been self-employed as a licensed tattoo artist;

• He had been studying case law online and through books during the past
two years;

• He suffered from PTSD, anxiety, and depression but did not take
medication because he had experienced adverse side effects from it;

• His mental health conditions did not impair his ability to understand or
communicate with the trial court, and would not, in his opinion, affect his ability
to represent himself;

• He did not have any physical or psychological disability that might affect
his ability to understand what was happening in trial court or express his opinions;

• He was not currently under the influence of alcohol or any medications;

• No one had made any promises or threats to influence his decision not to
obtain another attorney; and

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No. 2023AP566-CR

• He was making this choice freely and voluntarily.

¶11 Following this colloquy, the trial court asked Flatoff if he had
decided to represent himself or to ask the Public Defender’s Office for another
attorney, and Flatoff responded that if he had “to choose between the Public
Defender’s Office and me, I am going to choose me.” He said he did not believe
anyone from the Public Defender’s Office would adequately represent him, and he
was prepared to represent himself.

¶12 The trial court determined that Flatoff was voluntarily and freely
waiving his right to counsel. It also determined that, based on his education level,
the legal research he had been performing, and the discussions with him about his
past, Flatoff was competent to represent himself. It granted Attorney Szilagy’s
and Attorney Heywood’s requests to withdraw and allowed Flatoff to represent
himself.1

¶13 After finding that Flatoff waived his right to counsel, the trial court
appointed Attorney Szilagyi and/or Attorney Heywood to serve as standby
counsel:

In this case, we are approximately six, seven weeks out
from the jury trial. There are certainly many complicated
issues in this case regarding conspiracy charges, regarding
possible defense, certainly complicated by the presentation
of the numerous witnesses that are at least on the State’s
witness list, and these attorneys have been on this case for
numerous months in anticipation of the jury trial.

The motion to withdraw only came within the last week
or so[,] so it’s the presumption of this Court that these

1
Although we do not reach the issue in our analysis, we note that the trial court also
found that Flatoff forfeited his right to counsel.

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No. 2023AP566-CR

attorneys, Mr. Heywood and Mr. Szilagyi, have been
reviewing, preparing, and they have met with the defendant
so they certainly are or should be prepared to proceed for
sure for this motion hearing but to a substantial degree for
the jury trial in about six weeks.

So I am going to order that Mr. Heywood and[/]or
Mr. Szilagyi does act as standby counsel in this matter. I
get you have your administrative code that you need to
follow, but this Court has jurisdiction over this case and
over you as officers of this court…. [T]his case has just
been delayed too many times. We can’t do this again, get a
new attorney on board and they need time to prepare. So
the best way to assist the Court is to use one of these
attorneys.

¶14 The State Public Defender’s Office moved for reconsideration, but
the trial court affirmed its decision. In its order reaffirming the appointment of
standby counsel, the court additionally determined that locating private counsel
who could clear their schedule, work well with Flatoff—particularly given “his
challenging attitude, and at times hostility, towards previous attorneys[,]”—and
become well-versed in the case by the start of trial was highly unlikely. The court
did, however, amend its order to have only one of the attorneys (Szilagyi or
Heywood) serve as standby counsel and for that attorney to be compensated by
Winnebago County pursuant to WIS. STAT. § 753.19 (2023-24).2 Attorney
Szilagyi thereafter served as standby counsel.

¶15 On March 5, 2018, Flatoff’s jury trial began. Flatoff’s defense, as
explained in his opening statement, was that he went to Eagle Nation Cycles to
recover his motorcycle from a man who worked there, and got caught in the
middle of an ongoing conflict between the Neenah Police and alleged gang
members who frequented the cycle shop. Flatoff also claimed that the evidence

2
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2023AP566-CR

was improperly handled or tampered with during the investigation as part of a
government conspiracy to cover up that conflict, and that his public defenders
aided in the alleged cover-up.

¶16 Over the next three days, the State presented its case. It called
approximately 15 witnesses and introduced numerous pieces of evidence,
including: the gun Flatoff used, multiple photos of the scene, transcripts/tape of
the 9-1-1 calls made relating to the incident, surveillance video from inside Eagle
Nation Cycles during the incident, the helmet of the police officer who was shot in
the head during the incident, and body camera footage from the police officers.

¶17 After the State rested, Flatoff requested that Attorney Szilagyi, who
was still serving as standby counsel, take over the case. Both Attorney Szilagyi
and the district attorney voiced concerns about Flatoff’s request, including the fact
that Flatoff had accused his public defenders of trying to derail his defense. The
trial court took counsel’s concerns under advisement until the afternoon of the
fourth day of trial, when it converted Attorney Szilagyi’s appointment from
standby counsel to advisory counsel. Attorney Szilagyi continued to represent
Flatoff for the remainder of trial.

¶18 The jury returned guilty verdicts on all charges; and the case
proceeded to the mental responsibility phase of trial, where the jury found that
Flatoff did not have a mental disease or defect at the time of the offense. Flatoff
was sentenced,3 and he now appeals.

3
Flatoff filed a postconviction motion arguing that trial counsel was ineffective, see
Strickland v. Washington, 466 U.S. 668 (1984), but he has abandoned that argument on appeal.

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No. 2023AP566-CR

DISCUSSION

¶19 Flatoff makes two arguments on appeal. He first argues that the trial
court erred in determining that he waived and forfeited his right to counsel. 4 He
also argues that the court erred in appointing standby counsel. We discuss each
issue in turn.

¶20 “Whether a defendant has knowingly, intelligently and voluntarily
waived his right to counsel requires the application of constitutional principles to
the facts of the case, which we review independent of the [trial] court.” State v.
Klessig, 211 Wis. 2d 194, 204, 214, 564 N.W.2d 716 (1997). To determine that a
defendant is validly waiving the right to counsel, the court must conduct a
colloquy ensuring that the defendant: (1) deliberately chose to proceed without
counsel, (2) was aware of the difficulties and disadvantages of self-representation,
(3) was aware of the seriousness of the charges against him, and (4) was aware of
the general range of penalties that could be imposed. Id. at 206. If the answer to
all the aforementioned questions is “yes,” the court must next determine whether
the defendant was competent to represent himself. See id. at 203, 214. Factors to
consider in determining competence “include the defendant’s education, literacy,
fluency in English, and any physical or psychological disability which may
significantly affect his ability to communicate a possible defense to the jury.” See
State v. Marquardt, 2005 WI 157, ¶60, 286 Wis. 2d 204, 705 N.W.2d 878
(citation omitted). Because “persons of average ability and intelligence are

4
Flatoff also argues that the trial court erred in determining that he forfeited his right to
counsel. Because we conclude that Flatoff waived his right to counsel, we do not reach the
forfeiture issue. See Barrows v. American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436,
842 N.W.2d 508 (2013) (“An appellate court need not address every issue raised by the parties
when one issue is dispositive.”).

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No. 2023AP566-CR

entitled to represent themselves, a timely and proper request [to proceed pro se]
should be denied only where a specific problem or disability can be identified
which may prevent a meaningful defense from being offered, should one exist.”
See id.

¶21 We conclude that Flatoff validly waived his right to counsel. As
detailed more fully above, the trial court confirmed and reconfirmed that Flatoff
chose to proceed without counsel; indeed, Flatoff not only responded multiple
times that he wanted to represent himself and that he read and understood the
waiver-of-right-to-attorney form, but also told the court that if he had to “choose
between the Public Defender’s Office and me, I am going to choose me.” The
court also ensured Flatoff was aware of the difficulties and disadvantages of
self-representation, explaining, among other things, that: becoming a lawyer
requires extensive training and attorneys often have years of courtroom
experience; the court could not give him any legal advice or weigh his options for
him (while defense counsel could help with these things including: speaking on his
behalf in court, advising him of legal rights and options, assist in investigating,
exploring possible defenses, filing motions on evidentiary issues, assisting in
sentencing if Flatoff were convicted, and then filing an appeal if requested);
neither the court nor the district attorney were his lawyers; and that if Flatoff
wanted to testify, he would be sworn as a witness and cross-examined by the State.
Furthermore, the court did not, as Flatoff argues, simply gloss over the seriousness
of the charges against him and the range of penalties that could be imposed or
“just assume[]” Flatoff was aware of them; rather, the court explained that Flatoff
faced “very serious charges[,]” including “attempted homicide, felony murder, and
many [additional] counts … and … a maximum penalty of over 300 years as well
as a substantial fine.”

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No. 2023AP566-CR

¶22 We also conclude that Flatoff was competent to represent himself.
While Flatoff argues the trial court failed to make this determination, the record,
as summarized above, demonstrates that the court considered Flatoff’s education,
literacy, business experience, and experience researching case law as evidence that
he possessed the ability to represent himself. Moreover, the court determined that:
Flatoff’s mental health challenges did not impair his ability to understand or
communicate with the court; he did not have any physical or psychological
disability that might affect his ability to understand what was happening in court
or express his opinions; and Flatoff was not under the influence of alcohol or any
medications and was making his choice freely and voluntarily. We agree with the
trial court and conclude that, under these circumstances, Flatoff was competent to
represent himself.

¶23 Flatoff next argues that the trial court erred in appointing Attorney
Szilagyi, a public defender, as standby counsel. He points to WIS. ADMIN. CODE
§ PD 5.03 (Nov. 2024),5 which prohibits public defenders from acting as standby
counsel in any case, even in circumstances where the “attorney was originally
providing adversary representation in the case.” See § PD 5.03(2).

¶24 While the administrative code is clear, it is also true that a trial court
“has the authority to appoint counsel whenever in the exercise of its discretion it
deems such action necessary.” State v. Lehman, 137 Wis. 2d 65, 76, 403 N.W.2d
438 (1987). This authority is derived “not from the individual’s constitutional
right to counsel, but rather is inherent to serve the interests of the [trial] court.”
State ex rel. Chiarkas v. Skow, 160 Wis. 2d 123, 137-38, 465 N.W.2d 625 (1991).

5
All references to WIS. ADMIN. CODE § PD are to the November 2024 Register.

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No. 2023AP566-CR

Indeed, “[a]ttorneys working for the State Public Defender are not ‘exclusive’
representatives of the Office of the State Public Defender, they are also officers of
the court.” See id. at 138. Therefore, “[w]hen no other reasonable alternative is
available and the [trial] court explicitly states the need to exercise its discretion,
[it] may appoint counsel from the State Public Defender’s Office” to fulfill a role
it typically would be prohibited from taking. Cf. id. at 139 (allowing trial court to
appoint public defender to represent non-indigent defendant). “[T]he
responsibility for payment in such cases rests with the county.” Id. at 140.

¶25 We conclude that the trial court in Flatoff’s case did not erroneously
exercise its discretion in appointing Attorney Szilagyi as standby counsel. As the
court fully explained, the circumstances were highly unusual: not only were there
numerous criminal charges—including felony murder based on the police shooting
a bystander during the hostage incident—but there also was a long witness list and
trial had already been delayed many times due to Flatoff’s inability to get along
with numerous attorneys. Moreover, Attorney Szilagyi already had been
preparing for trial and had a better relationship with Flatoff than other attorneys
did. The court further provided that Winnebago County would pay Attorney
Szilagyi for his services, made clear that “the attorneys are at the service of the
court, not Mr. Flatoff[,]” and advised that standby counsel’s duties were to explain
processes and procedure to Flatoff. Given the complexity of the case, the short
amount of time before trial was to begin, Flatoff’s relatively communicative
relationship with Attorney Szilagyi, and his history of repeatedly refusing to work
with other counsel, the court did not err in appointing Attorney Szilagyi to serve as
standby counsel on the county’s behalf.

By the Court.—Judgment and order affirmed.

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No. 2023AP566-CR

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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