State v. Stephan C. Vance

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.
August 22, 2024
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. 2022AP1324-CR Cir. Ct. No. 2018CF705

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

STEPHAN C. VANCE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Rock
County: BARBARA MCCRORY, Judge. Affirmed.

Before Blanchard, Graham, and Taylor, 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).
No. 2022AP1324-CR

¶1 PER CURIAM. Stephan Vance appeals a judgment of conviction
and an order denying his motion for postconviction relief. Vance was convicted
after a bench trial, and he now seeks a new trial. He argues that the colloquy the
circuit court conducted regarding his right to a jury trial was insufficient to establish
a knowing, intelligent, and voluntary waiver of the right. He also argues that even
if the colloquy was sufficient, his waiver did not apply to his rescheduled trial date.
We reject these arguments and therefore affirm.

Background

¶2 Vance was charged in this case in 2018. In late January 2020, the
parties appeared for a final pretrial conference in advance of a jury trial scheduled
for the following week. Vance’s counsel informed the circuit court that counsel had
just learned from Vance that Vance had suffered a stroke the previous November
for which he was receiving treatment and that Vance was having some memory
issues as a result of the stroke. Counsel also informed the court that Vance was
prepared to waive his right to a jury trial and proceed with a bench trial using the
existing trial date the following week.

¶3 The circuit court conducted a colloquy with Vance regarding his right
to a jury trial. Vance stated that he understood the information the court was
providing, and he confirmed that he wanted to waive his right to a jury trial.

¶4 During the colloquy, the circuit court asked Vance if he had enough
time to discuss the matter with counsel. Vance did not respond with a yes or no.
Instead, he stated that “today [is] the first time I get to speak with [counsel] in like
four or five months” and that he and his attorney were “not really on the same page,

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No. 2022AP1324-CR

but I want to get it over.” He expressed concern that his case was impeding his
recovery.1

¶5 The circuit court followed up with additional questions, noting that
Vance appeared to be having some issues with his speech as a result of his stroke.
Vance continued to express concern for his health and treatment and to state that he
wanted to get the case over with. This prompted the court to ask Vance if there was
anything interfering with his ability to understand the information being discussed.
Vance responded that there was not.2

¶6 Upon concluding its colloquy with Vance, the circuit court turned to
Vance’s counsel and asked counsel if counsel believed that Vance understood his
right to a jury trial. Counsel responded, “I think he does.” The court also asked
counsel if counsel believed that Vance was waiving his right to a jury trial
intelligently and voluntarily. Counsel responded, “Yes.”

1
Vance’s complete response to the circuit court’s question regarding whether he had
sufficient time to discuss his waiver to with counsel was as follows:

Well, today [is] the first time I get to speak with [counsel]
in like four or five months, but I—we [are] not really on the same
page, but I want to get it over. I’m tired of coming down here, and
it’s impeding my recovery, and I’m back and forth two or three
times a month to the courts in Gunderson, and this is too much.
I’m ready to get it over with and I don’t want to be taking up your
courtroom either.
2
The exchange between the circuit court and Vance in which the court expressly asked
Vance about his ability to understand was as follows:

THE COURT: That’s what I want to know. I want to
make sure that you understand, and I’m not trying to push you,
and I’m—and I want to make sure that you understand the issues
and you understand what you’re doing. And there’s nothing that’s
interfering with your ability to understand what’s going on?

THE DEFENDANT: No, ma’am.

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No. 2022AP1324-CR

¶7 After completing its questioning of Vance and counsel, the circuit
court concluded that Vance was freely and voluntarily waiving his right to a jury
trial.

¶8 The case did not proceed to trial as scheduled the following week.
Rather, the trial was rescheduled and held several months later.

¶9 Vance filed a postconviction motion, arguing that he did not
knowingly, voluntarily, and intelligently waive his right to a jury trial. The circuit
court denied the motion.

Discussion

¶10 Whether a defendant knowingly, voluntarily, and intelligently waived
a constitutional right is a question of “constitutional fact” involving a two-part
standard of review. State v. Denson, 2011 WI 70, ¶48, 335 Wis. 2d 681, 799
N.W.2d 831. We defer to the circuit court’s findings of historical fact unless the
findings are clearly erroneous. Id. However, we independently review the
application of constitutional principles to the facts. Id.

¶11 Here, Vance argues that he did not validly waive his right to a jury
trial for two reasons. First, he argues that the circuit court’s colloquy was
insufficient to establish a knowing, intelligent, and voluntary waiver. Second, he
argues that even if the colloquy was sufficient, his waiver did not apply to the
rescheduled trial date.

Sufficiency of the Colloquy

¶12 In State v. Anderson, 2002 WI 7, 249 Wis. 2d 586, 638 N.W.2d 301,
our supreme court “mandate[d] the use of a personal colloquy in every case where

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No. 2022AP1324-CR

a criminal defendant seeks to waive [the] right to a jury trial.” Id., ¶3. The colloquy
must be “designed to ensure” that the defendant:

(1) made a deliberate choice, absent threats or
promises, to proceed without a jury trial; (2) was aware of
the nature of a jury trial, such that it consists of a panel of 12
people that must agree on all elements of the crime charged;
(3) was aware of the nature of a court trial, such that the
judge will make a decision on whether or not [the defendant]
is guilty of the crime charged; and (4) had enough time to
discuss this decision with [the defendant’s] attorney.

Id., ¶24.

¶13 Here, Vance argues that the colloquy was insufficient with respect to
the first and fourth Anderson requirements, although in his reply brief he concedes
that his argument is based primarily on the fourth requirement. He points to his
response to the circuit court’s question regarding whether he had sufficient time
with counsel: “[T]oday [is] the first time I get to speak with [counsel] in like four
or five months, but I—we [are] not really on the same page, but I want to get it
over.”

¶14 Vance argues that his response is insufficient to show that he had
enough time to discuss his waiver with counsel. He also argues that his response
shows that he was not prepared to address the matter, having suffered a stroke and
been “incommunicado with his lawyer” for several months. He further argues that
his responses during the colloquy show more generally that he was struggling to
express himself and that his only goal was to move his case forward, which was a
goal that had no clear connection with waiving his right to a jury trial, given that a
jury trial had already been scheduled for the following week.

¶15 The State argues that Vance has forfeited any argument based on the
first Anderson requirement because he conceded during postconviction proceedings

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No. 2022AP1324-CR

that the circuit court’s colloquy satisfied that requirement. The State also argues
that even if Vance did not forfeit this argument, the argument fails on its merits.
The State also argues that Vance’s argument based on the fourth Anderson
requirement fails on its merits.

¶16 Setting aside the forfeiture issue, we agree with the State that the
circuit court’s colloquy with Vance satisfied both the first and fourth Anderson
requirements.3

¶17 As to the first Anderson requirement, the circuit court expressly asked
Vance whether anyone had promised him anything or threatened him to give up his
right to a jury trial, and Vance unequivocally responded, “No.” This unequivocal
response, in combination with Vance’s responses to the court’s other questions,
establishes that the court conducted a sufficient inquiry into whether Vance “made
a deliberate choice, absent threats or promises, to proceed without a jury trial.” See
Anderson, 249 Wis. 2d 586, ¶24. The alleged lack of a clear connection between
Vance’s goal of moving his case forward and waiving his right to a jury trial does
not persuade us that the court’s colloquy was defective.

¶18 As to the fourth Anderson requirement, the question is a closer call.
Although the circuit court expressly asked Vance whether he had enough time to
discuss his jury trial waiver with his attorney, exactly as Anderson contemplates,
Vance provided an ambiguous response—“[T]oday [is] the first time I get to speak
with [counsel] in like four or five months, but I—we [are] not really on the same
page, but I want to get it over”—and the court did not follow up with additional

3
The State argues that the colloquy also satisfied the second and third Anderson
requirements. Although we appreciate the State’s thoroughness in addressing all four requirements,
we do not discuss the second and third requirements because they are not in dispute.

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No. 2022AP1324-CR

questions to clarify Vance’s response on the specific issue of whether Vance had
sufficient time to discuss his waiver with counsel. Rather, the court asked Vance
and his counsel other questions that appeared designed to explore Vance’s
understanding more generally and to determine whether his waiver was therefore
knowing and voluntary.

¶19 However, having considered the circuit court’s colloquy as a whole,
we conclude that the colloquy satisfied the fourth Anderson requirement, and we
also conclude that the court implicitly found that Vance had enough time to discuss
his waiver with counsel. The court’s colloquy left no doubt that the court was aware
of the Anderson requirements; and the court concluded, after questioning both
Vance and his counsel regarding Vance’s understanding, that Vance was waiving
his right to a jury trial freely and voluntarily. In these circumstances, it would be
illogical to conclude that the court did not implicitly find that Vance had enough
time to discuss his waiver with counsel.

¶20 We further conclude that the circuit court’s implicit finding is
supported by the record and not clearly erroneous. Vance’s ambiguous response to
the court’s question regarding whether he had sufficient time to discuss his waiver
with counsel is subject to multiple interpretations. One interpretation is that he did
not have enough time to discuss his waiver with counsel. However, another
reasonable interpretation, especially considering the context of the colloquy as a
whole, is that Vance had enough time to discuss the matter with counsel but simply
disagreed with one or more aspects of counsel’s advice. We are satisfied that the
court reasonably could, and did, adopt the latter interpretation.

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No. 2022AP1324-CR

Rescheduled Trial Date

¶21 We turn to Vance’s argument that his waiver did not apply to his
rescheduled trial date. As referenced above, when Vance entered his waiver, his
trial was scheduled to begin the following week. However, the trial was rescheduled
and held several months later.

¶22 In arguing that his jury trial waiver did not apply to the rescheduled
trial, Vance relies on Walworth County Department of Health & Human Services
v. Roberta J.W., 2013 WI App 102, 349 Wis. 2d 691, 836 N.W.2d 860. In
Roberta J.W., we concluded that “absent an unambiguous declaration that a party
intends to bind itself for future fact-finding hearings or trials, a jury waiver applies
only to the fact-finding hearing or trial pending at the time it is made.” Id., ¶11.
Relying on this language and other similar language in Roberta J.W., Vance argues
that there is nothing in the record here to indicate that he intended to waive his right
to a jury trial indefinitely. He argues that the record instead shows that the circuit
court and parties were all contemplating that the trial would go forward the
following week.

¶23 Although the quoted language from Roberta J.W., if read in isolation,
might seem to support Vance’s argument, a close reading of Roberta J.W. shows
that we were addressing retrials, not rescheduled trials. The specific issue in
Roberta J.W. was whether a parent’s prior jury trial waiver and stipulation to certain
elements necessary to prove her unfitness in a termination of parental rights
proceeding applied to a new fact-finding hearing after there had been an appeal,
reversal, and remand for the new hearing. Id., ¶¶5, 7. We concluded that the
parent’s prior waiver did not apply in that circumstance, relying on case law
involving retrials. Id., ¶¶9-11. Our decision in Roberta J.W. is not reasonably read

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No. 2022AP1324-CR

to require a new jury trial waiver when a pending trial is rescheduled to a later date.
Accordingly, we reject Vance’s argument based on Roberta J.W.

¶24 This does not mean, of course, that a defendant may never withdraw
a jury trial waiver if a trial is rescheduled. Rather, as the State points out, a
defendant may request withdrawal, and the circuit court may grant withdrawal,
subject to certain considerations. See State v. Cloud, 133 Wis. 2d 58, 63-64, 393
N.W.2d 123 (Ct. App. 1986). Here, however, Vance does not claim that he
requested withdrawal of his waiver.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).

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