State v. Chad W. Kessler

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 23, 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. 2019AP524-CR Cir. Ct. No. 2015CF459

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CHAD W. KESSLER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
St. Croix County: R. MICHAEL WATERMAN, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

¶1 SEIDL, J. Chad Kessler appeals a judgment, entered upon a jury’s
verdicts, convicting him of two counts of criminal damage to property and one
count each of fleeing or eluding an officer, burglary of a building or dwelling,
operating a motor vehicle without the owner’s consent (OMVWOC), and
No. 2019AP524-CR

misdemeanor theft. He also appeals an order denying him postconviction relief.
Kessler contends he was not competent to represent himself at trial because he was
suffering from auditory hallucinations caused by schizophrenia—a condition he
did not disclose until he sought postconviction relief.

¶2 We conclude: (1) the circuit court’s waiver-of-counsel colloquy
satisfied the requirements of State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716
(1997); (2) notwithstanding the sufficiency of its Klessig colloquy, the court
properly held a nunc pro tunc evidentiary hearing on Kessler’s postconviction
claim; and (3) the court’s retrospective finding that Kessler was competent to
represent himself was not clearly erroneous. Accordingly, we affirm.

BACKGROUND

¶3 An Information charged Kessler with the crimes listed above, with
one exception,1 and additionally charged Kessler with resisting an officer and
possession of drug paraphernalia.2 The charges stemmed from an incident that
occurred on September 28, 2015. That day, Kessler stole a pickup truck from the
City of St. Paul Public Works Department and drove it to St. Croix County.

1
Specifically, the OMVWOC count for which Kessler was ultimately convicted was
originally charged as taking and driving a motor vehicle without the owner’s consent, contrary to
WIS. STAT. § 943.23(2) (2017-18). As we explain further below, the State subsequently amended
that count to the lesser crime of OMVWOC, contrary to § 943.23(3) (2017-18), in response to
one of Kessler’s pro se motions in limine.

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
The jury ultimately acquitted Kessler of these additional charges.

2
No. 2019AP524-CR

¶4 In St. Croix County, a homeowner observed Kessler taking a washer
and dryer from her residence and called 911 to a report a burglary in progress. A
high-speed chase ensued between law enforcement and Kessler. After Kessler
abandoned the truck in a bean field and fled on foot, he was eventually found
hiding in a utility shed’s rafters and was arrested.

¶5 Attorney Donald Schwab was appointed to represent Kessler, and he
did so throughout the majority of the pretrial proceedings. Then, on June 14,
2017, five days prior to Kessler’s scheduled trial date, Schwab sent the circuit
court correspondence stating that Kessler “wishe[d] to represent himself.” That
same day, the court held a hearing on Kessler’s request.

¶6 At the outset of the hearing, Schwab informed the circuit court that,
the previous evening, Kessler had expressed his desire to represent himself.
Schwab had therefore provided Kessler with a waiver of counsel form, and the two
had discussed the implications of Kessler representing himself. Schwab then
confirmed “this is how he wants to proceed. I think he wants me present here with
him, Judge, but he wants to handle everything himself.”

¶7 The circuit court proceeded to address Kessler directly. In response
to the court’s questions, Kessler stated that he was thirty-nine years old and had
completed his general education degree (GED) and some college coursework.
Prior to his arrest, Kessler had been self-employed “doing carpet and tile” work.
The following exchange then occurred:

THE COURT: Do you have any medical or emotional
conditions that interfere with your ability to understand
what’s happening today?

[KESSLER]: I do understand what’s happening, and, no, I
don’t got no emotional.

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No. 2019AP524-CR

THE COURT: I’m sorry, what was that?

[KESSLER]: I have no emotional problems or nothing. I
do understand what’s going on today.

THE COURT: Have you had any drugs, alcohol, or
medication in the last 24 hours?

[KESSLER]: I have not.

THE COURT: Have you been able to understand the court
proceedings so far?

[KESSLER]: Yes.

THE COURT: Not just today, but on prior occasions?

[KESSLER]: Yes.

¶8 The circuit court subsequently confirmed Kessler knew the amount
and the nature of the charges against him. The court then asked Kessler to explain
why he wanted to represent himself. Kessler provided numerous reasons,
including: (1) he was unhappy with defense counsel for “coerc[ing]” him into
agreeing to allow the State to present two witnesses via video recorded
testimony; (2) he would “just [like] the opportunity” to represent himself; and
(3) from a “strategy standpoint,” it would allow the jury to “get to know [him]
personally.”

¶9 Regarding the timing of Kessler’s request, the circuit court
inquired: “What has changed in your mind, now that you are on the eve of trial,
that you want to go it alone?” Kessler responded, “I don’t know. I don’t really
feel that I’m alone ever.”

¶10 After further discussion concerning the challenges Kessler would
face if he proceeded to trial without counsel, the circuit court reviewed Kessler’s
completed waiver-of-counsel form. Kessler affirmed that he had read, understood,

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No. 2019AP524-CR

and signed the form. As pertinent here, that form contained checked boxes
indicating Kessler was not currently receiving, and had not previously received,
treatment for “mental or emotional problems.” It also had a checked box
indicating Kessler did not “have physical or psychological disabilities that may
affect [his] ability to understand what is happening in court or communicate [his]
position or views on this case to the court.”

¶11 At the conclusion of its colloquy, the circuit court found that Kessler
was knowingly, intelligently and voluntarily waiving his right to counsel. The
court also found that Kessler was competent to represent himself. Consequently,
the court allowed Kessler to proceed pro se. At Kessler’s request, the court also
appointed Schwab to act as standby counsel.

¶12 Three days prior to trial, Kessler filed two handwritten motions in
limine. One of these motions sought to dismiss the charge of taking or driving a
motor vehicle without the owner’s consent. Kessler argued that dismissal was
warranted because there was no evidence that he took the pickup truck involved in
the high-speed chase “from the City of St. Paul facility where the vehicle was
stored.” The State responded by filing an amended Information, which charged
Kessler with the lesser crime of OMVWOC. The State informed the court it
believed the amended Information would “conform to the proof in response to
[Kessler’s] motion in limine.”3

3
Kessler’s second motion in limine sought to prevent the State from introducing a video
recording of an interview he gave to law enforcement. The circuit court reserved ruling on this
motion prior to trial, and the issue was ultimately rendered moot because the State did not seek to
introduce the video.

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No. 2019AP524-CR

¶13 On the morning of trial, Kessler arrived in his jail-issued orange
uniform. The circuit court explained to Kessler that it was “considered prejudicial
for a defendant to appear in front of a jury wearing a jail uniform because it
implies or suggests some form of guilt.” The court also advised Kessler that it
would issue him civilian clothes to wear during trial. Kessler stated that he
understood the court’s comments, but that he was choosing to remain in the jail-
issued uniform because it was his “right” to do so.

¶14 During voir dire, Kessler neither asked the potential jurors any
questions, nor did he exercise any of his peremptory strikes. In his opening
statement, Kessler began telling the jury that “the good [L]ord reminded me that
no matter what color they dress me in, it doesn’t give them—.” At this point, the
State objected, and the circuit court instructed Kessler to limit his remarks to what
he believed the evidence would show. Kessler responded, “The truth is the truth
no matter how you dress it.”

¶15 Kessler cross-examined seven of the ten witnesses the State called
on the first day of trial. Although his cross-examinations were brief, Kessler
elicited arguably exculpatory testimony from several of these witnesses. This
testimony included: (1) an admission from the State’s first witness—the
homeowner who reported the burglary on September 28, 2015—that law
enforcement presented her with a lineup after the incident and that she identified
someone other than Kessler as the burglar; and (2) an acknowledgment from one
of the officers involved in the ensuing chase that he initially described the fleeing
suspect as a light-skinned African American male.4

4
Kessler is Caucasian.

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No. 2019AP524-CR

¶16 At the start of the second day of trial, before the jury entered,
Kessler (now dressed in civilian clothes) requested that Schwab represent him for
the remainder of the trial. After a brief colloquy, the circuit court granted
Kessler’s request, and Schwab resumed Kessler’s representation.

¶17 The State rested its case after presenting four additional witnesses.
Kessler chose not to testify, and the defense did not call any witnesses. The jury
ultimately convicted Kessler of the six counts described above.

¶18 Kessler filed a postconviction motion seeking a new trial. As
grounds, he argued that he was neither competent to waive his right to counsel nor
competent to represent himself at trial “due to auditory command hallucinations
brought on by unmedicated schizophrenia.” He also alleged that the circuit court’s
Klessig colloquy was “inadequate.”

¶19 In his postconviction motion, Kessler disclosed, for the first time,
that he had a history of mental illness. This history included a May 2015 “mild
paranoid schizophrenia” diagnosis, for which he was prescribed the antipsychotic
medication Risperdal. Kessler asserted that he “did not receive any medication”
for his condition from April 2017 until his June 2017 trial.5 He claimed that his
lack of such medication caused him to “suffer[] from significant auditory
hallucinations” at the time he waived counsel and at trial.

5
On April 17, 2017, Kessler—who at the time was released on a signature bond—failed
to appear at his scheduled trial date. Consequently, the circuit court issued a bench warrant for
Kessler’s arrest. Later that day, Kessler was taken into custody and incarcerated at the St. Croix
County Jail, where he remained until his rescheduled trial began on June 19, 2017. The jail
screening form indicated that Kessler did not request any medication on April 17, 2017, nor were
any symptoms indicative of mental health problems observed or reported.

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No. 2019AP524-CR

¶20 The circuit court ordered a hearing on Kessler’s motion. At the
hearing, Kessler testified that he had experienced auditory hallucinations for
nearly two decades. He generally described the hallucinations as the “Holy
[S]pirit, Demons [and] God” talking to him. He stated that the voices would
“command[]” him to perform “certain tasks throughout the day.”

¶21 Kessler further testified his taking Risperdal “helped a great deal”
and brought his symptoms “down to a manageable level.” He stated, however,
that he stopped taking Risperdal when he was incarcerated in April 2017, which
resulted in a “pretty severe” impact on his symptoms. Kessler explained that he
began to hear voices “all day,” and that the voices told him to fire Schwab. He
also stated that he wore his jail-issued orange uniform to the first day of trial
because “[v]oices w[ere] telling me that I need to wear the orange because I’m
guilty.”

¶22 Kessler asserted that by July 2017, one month after his trial, his
“hallucinations were getting so bad that [he] couldn’t even manage anything.” He
therefore requested, and was prescribed, Risperdal.

¶23 Kessler’s mental health records, which were introduced into
evidence at the postconviction hearing, confirmed Kessler’s assertions that he had
been diagnosed with mild paranoid schizophrenia in 2015. They also confirmed
that he had been prescribed Risperdal at that time, with the last documented
prescription refill prior to trial occurring on June 19, 2015. The records also
confirmed Kessler’s testimony that he requested medication to treat auditory
hallucinations in July 2017.

¶24 The circuit court denied Kessler’s postconviction motion in an oral
decision. The court first determined that its waiver-of-counsel colloquy had

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No. 2019AP524-CR

satisfied the Klessig requirements. On that basis, the court appeared to conclude
that Kessler was not entitled to a retrospective evidentiary hearing on his
postconviction claim.

¶25 Nonetheless, the circuit court noted that it had already held such a
hearing, and the court stated it “would be remiss if [it] did not at least comment on
that evidence.” Considering that evidence, the court then stated it was “not
convinced” that Kessler’s “mild form of schizophrenia rendered him
incompetent.” The court reasoned:

Contrary to Mr. Kessler’s testimony, the evidence suggests
that he was not taking his medications for years. [Kessler’s
exhibits] indicate he last filled his prescription [on]
June 19, 2015. That is significant because when
Mr. Kessler was medically screened upon his admission to
the jail in April of 2017, no mental health symptoms were
observed or reported.

¶26 Further, the circuit court observed that “none of the documents that
were submitted provided any evidence of symptoms until June 30, 2017,”—that is,
ten days after Kessler’s trial. Finally, the court stated that it “didn’t find
Mr. Kessler’s testimony [at the postconviction hearing] to be more credible than
what I read in the record, especially considering the fact that Mr. Kessler has a
vested interest in the outcome of this hearing and these proceedings.” Kessler now
appeals.

DISCUSSION

¶27 On appeal, Kessler argues he “was not competent to waive counsel
or represent himself at trial due to auditory command hallucinations brought on by
unmedicated schizophrenia.” Criminal defendants have a constitutional right to
self-representation. Klessig, 211 Wis. 2d at 201-03. When a defendant seeks to

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No. 2019AP524-CR

proceed pro se, a circuit court must undertake a two-part inquiry to ensure a
defendant is (1) knowingly, intelligently, and voluntarily waiving the right to
counsel, and (2) competent to proceed pro se. State v. Marquardt, 2005 WI 157,
¶56, 286 Wis. 2d 204, 705 N.W.2d 878.

¶28 To prove a valid waiver of counsel, our supreme court has mandated
that a circuit court hold a colloquy to ensure a 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].” Klessig, 211 Wis. 2d at
206. Additionally, the court’s determination of a defendant’s competency to
proceed pro se must appear in the record. Id. at 212.

¶29 When determining whether a defendant “possesses the minimal
competence necessary to conduct his [or her] own defense,” a circuit court is to
consider factors including “the defendant’s education, literacy, fluency in English,
and any physical or psychological disability which may significantly affect [the
defendant’s] ability to communicate a possible defense to the jury.” 6 Pickens v.

6
Wisconsin imposes “a higher standard for determining whether a defendant is
competent to represent oneself than for determining whether a defendant is competent to stand
trial.” State v. Klessig, 211 Wis. 2d 194, 212, 564 N.W.2d 716 (1997). In a series of recent
decisions, the Seventh Circuit Court of Appeals has held that our application of this higher
standard to deny a defendant the right to self-representation was contrary to, and an unreasonable
application of, clearly established federal law. See Jackson v. Bartow, 930 F.3d 930, 933 (7th
Cir. 2019) (per curiam); Washington v. Boughton, 884 F.3d 692, 695 (7th Cir. 2018); Tatum v.
Foster, 847 F.3d 459, 461 (7th Cir. 2017); Imani v. Pollard, 826 F.3d 939, 942 (7th Cir. 2016).
Because this appeal does not concern an allegedly improper denial of the right to self-
representation—and in the absence of any argument from Kessler relying on these Seventh
Circuit decisions—we do not further address the constitutional implications of our state’s “higher
standard.”

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No. 2019AP524-CR

State, 96 Wis. 2d 549, 569, 292 N.W.2d 601 (1980), overruled on other grounds
by Klessig, 211 Wis. 2d at 206. Additionally, because “persons of average ability
and intelligence are entitled to represent themselves,” a defendant should be
denied this right “only where a specific problem or disability can be identified
which may prevent a meaningful defense from being offered, should one exist.”
Pickens, 96 Wis. 2d at 569.

¶30 Because a competency determination is “functionally a factual
finding,” we review a “circuit court’s competency determination under a clearly
erroneous standard of review that is particularized to competency findings.” State
v. Smith, 2016 WI 23, ¶26, 367 Wis. 2d 483, 878 N.W.2d 135. Under that
standard, a circuit court’s competency determination—even when made
retrospectively—is upheld unless “totally unsupported by facts in the record.” Id.,
¶¶29-30.

A. Waiver-of-Counsel colloquy

¶31 With these principles in mind, we turn to Kessler’s arguments on
appeal. He first argues that the circuit court conducted an “inadequate” Klessig
colloquy and therefore erroneously concluded, at the time it granted his request to
represent himself, that he was competent to do so. More specifically, he faults the
court for failing to: (1) ask Kessler about “his mental health history more
directly;”7 and (2) “follow-up” with Kessler about what he meant by stating that
he did not “really feel that [he was] alone ever.”

7
For example, Kessler asserts the circuit court should have asked Kessler “whether he
had ever been diagnosed with a psychiatric condition, hospitalized for psychiatric reasons, or
prescribed any psychotropic medications.”

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No. 2019AP524-CR

¶32 We conclude the circuit court’s Klessig colloquy was adequate for
several reasons. First, the court’s colloquy undisputedly addressed the four
Klessig requirements set forth above. See Klessig, 211 Wis. 2d at 206. In
addition, the court inquired about Kessler’s age, his educational background, and
his employment history. Kessler’s responses to those questions supported the
court’s determination that he possessed the “minimal competence necessary to
conduct his own defense.” See Pickens, 96 Wis. 2d at 569.

¶33 Second, on this record, the circuit court had no reason to inquire
further into Kessler’s mental health history at the time of the waiver-of-counsel
hearing. The court directly asked Kessler if he had any “medical or emotional
conditions” that interfered with his ability to understand the proceedings. Kessler
twice denied having any such conditions, and he affirmatively stated he
understood the proceedings. Kessler’s responses were consistent with the
completed waiver-of-counsel form, which indicated he had not “received
treatment in the past for mental or emotional problems.”

¶34 Relatedly, we reject Kessler’s assertion, made with the benefit of
hindsight, that the circuit court should have connected Kessler’s statement that he
did not feel that he was ever “alone” to a potential mental health issue. Instead,
we conclude the court reasonably interpreted that statement as referring to Kessler
“having access to other people or resources.”8

¶35 Third, Kessler provides no citation to legal authority requiring a
circuit court to ask detailed questions concerning a defendant’s mental health

8
The circuit court stated in its oral decision denying Kessler postconviction relief that
this interpretation of Kessler’s “alone” statement is the one it made.

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No. 2019AP524-CR

history in order for it to satisfy its duties under Klessig. We need not consider
arguments unsupported by citation to legal authority. See State v. Pettit, 171
Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

¶36 In all, we agree with the apt observation made by the State in its
response brief: “[T]he problem here was not the [circuit] court’s inquiry, but
Kessler’s failure to disclose his condition during the colloquy or on the waiver
form. The court cannot be faulted for failing to conduct a better colloquy when
the defendant’s answers to its questions are non-responsive, misleading, or false.”

B. Postconviction evidentiary hearing

¶37 Kessler next argues that, regardless of whether the circuit court’s
Klessig colloquy was adequate, the new evidence he presented in his
postconviction motion (i.e., his previously undisclosed schizophrenia diagnosis)
entitled him to a retrospective evidentiary hearing to determine if his waiver of
counsel was valid. The circuit court—after it had already conducted an
evidentiary hearing—rejected this argument. The court appeared to reason that
because the Klessig court held that a retrospective evidentiary hearing was the
remedy for an inadequate colloquy, it followed that there was no remedy available
for a defendant when a court conducted an adequate colloquy.

¶38 The State concedes Kessler’s argument that an evidentiary hearing
was required in this case. In its response brief, the State acknowledges “a
retrospective evidentiary hearing is … the appropriate remedy for any credible
postconviction allegation that a defendant’s waiver of counsel was not valid.”

¶39 We conclude that an adequate Klessig colloquy does not, as a matter
of law, foreclose a defendant from seeking, and being entitled to, a retrospective

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No. 2019AP524-CR

evidentiary hearing if he or she alleges evidence extrinsic to the waiver colloquy
establishes his or her incompetence. This conclusion finds support in Klessig
itself, wherein the court recognized that the remedy it was establishing for an
inadequate waiver-of-counsel colloquy (i.e., an evidentiary hearing) was the same
remedy “already [available] when the appeal stems from a postconviction motion
challenging the validity of waiver of counsel.” Klessig, 211 Wis. 2d at 207 (citing
Keller v. State, 75 Wis. 2d 502, 511-12, 249 N.W.2d 773 (1977)). Nowhere in its
decision did the Klessig court purport to limit or overturn this already available
remedy.

¶40 In addition, the Klessig court stated that it was adopting a procedure
for the resolution of invalid waiver-of-counsel claims that was “similar to the
procedure established by this court for the resolution of guilty plea waivers.”
Klessig, 211 Wis. 2d at 207. Importantly, in the context of a “resolution of guilty
plea waivers,” an “adequate and accurate plea colloquy” does not necessarily
preclude a defendant from seeking and receiving a postconviction evidentiary
hearing regarding the validity of his or her guilty plea. See State v. Howell, 2007
WI 75, ¶77 n.52, 301 Wis. 2d 350, 734 N.W.2d 48.

¶41 Instead, a defendant who entered a guilty plea following an adequate
colloquy may seek an evidentiary hearing when he or she alleges a factor extrinsic
to the plea colloquy rendered the entry of the plea invalid. See State v. Sulla,
2016 WI 46, ¶25, 369 Wis. 2d 225, 247, 880 N.W.2d 659. This “legal path,”
known as a Nelson/Bentley9 motion for plea withdrawal, provides that a defendant

9
Referring to Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972), and State v.
Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996).

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No. 2019AP524-CR

is entitled to such a hearing when he or she alleges “‘sufficient material facts’ that
would allow a reviewing court ‘to meaningfully assess a defendant’s claim’” that a
factor extrinsic to the colloquy rendered the plea invalid. Sulla, 369 Wis. 2d 225,
¶26 (citation omitted).

¶42 We conclude that such a procedure is equally appropriate in the
waiver-of-counsel context. This conclusion follows because a Nelson/Bentley
plea withdrawal motion and a postconviction claim that, notwithstanding a valid
Klessig colloquy, a defendant did not validly waive his right to counsel share a
common denominator. That is, both claims contemplate that even though a circuit
court, by conducting a valid colloquy, faithfully implemented the safeguards
designed to ensure a defendant is validly waiving his or her constitutional rights,
the defendant nevertheless may be entitled to relief. See Klessig 211 Wis. 2d at
206; Howell, 301 Wis. 2d 350, ¶26. Therefore, because Kessler undisputedly
made a sufficient allegation that a factor extrinsic to the circuit court’s Klessig
colloquy rendered his waiver of counsel invalid (i.e., that the auditory
hallucinations caused by his undisclosed schizophrenia diagnosis rendered him

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No. 2019AP524-CR

incompetent), he was entitled to a postconviction evidentiary hearing on his
claim.10

¶43 Even though the State concedes the circuit court erred by concluding
its adequate Klessig colloquy meant that Kessler was not entitled to an evidentiary
hearing, it argues that remanding for the court to hold such a hearing is
unnecessary. The State reasons the court already did, in fact, hold such an
evidentiary hearing and make a retrospective finding that Kessler was competent
to proceed pro se.

¶44 For his part, Kessler argues it is “unclear” whether the circuit court
made “formal findings” or “actually rendered a decision on retrospective
competency.” Based on this alleged uncertainty, he contends he “is still entitled to
a hearing on the merits.”

10
Relying solely on Klessig, Kessler asserts that because nonwaiver of counsel is
presumed, the burden was on the State to prove a valid waiver of counsel at the postconviction
evidentiary hearing by clear and convincing evidence. See Klessig, 211 Wis. 2d at 204. The
State does not respond to Kessler’s assertion. Still, we note that Kessler’s argument ignores that
the Klessig court stated that fulfillment of its colloquy requirements—which we have already
concluded occurred in this case—overcomes the presumption of nonwaiver. See id. at 206.
Thus, Klessig’s rationale for placing the burden on the State to prove a valid waiver of counsel
does not apply where, like here, a valid colloquy did take place—because the presumption of
nonwaiver has already been overcome. Moreover, at a Nelson/Bentley evidentiary hearing
(which, as explained, we conclude is analogous to a hearing granted after a defendant alleges that
factors extrinsic to a Klessig colloquy rendered his of her waiver of the right to counsel invalid),
the “burden … is on the defendant.” State v. Hoppe, 2009 WI 41, ¶60, 317 Wis. 2d 161, 765
N.W.2d 794, 809. Thus, which party bears the burden to show whether a defendant’s waiver of
counsel was valid at an evidentiary hearing—when that hearing is granted despite an adequate
Klessig colloquy having taken place—appears unsettled. Nonetheless, because the State fails to
respond to Kessler’s argument that the burden was on the State, we deem that point conceded for
purposes of this opinion. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d
97, 109, 279 N.W.2d 493 (Ct. App. 1979).

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No. 2019AP524-CR

¶45 We conclude a remand is not necessary. Regardless of whether the
circuit court believed it needed to hold an evidentiary hearing on Kessler’s
postconviction claim, the court did hold such a hearing. Evidence was presented,
and the court made a retrospective competency finding based on that evidence.
Moreover, as explained further below, no additional factual grounds exist for the
court to reach a different result than it already did regarding the validity of
Kessler’s waiver of counsel, such that an additional hearing would be necessary.
Consequently, we turn to the court’s retrospective competency determination,
which we must affirm unless it was “totally unsupported by facts in the record.”
Smith, 367 Wis. 2d 483, ¶30.

¶46 As an initial matter, we observe that the circuit court properly
recognized in its oral decision denying Kessler postconviction relief that a mental
illness, such as schizophrenia, does not necessarily render a defendant
incompetent. See id., ¶37. Instead, the relevant inquiry—which the court
undertook—is whether a mental illness “significantly affect[s] [a defendant’s]
ability to communicate a possible defense to the jury.” Pickens, 96 Wis. 2d at
569.

¶47 The basis of Kessler’s claim that his schizophrenia diagnosis
significantly affected his ability to communicate a possible defense to the jury was
that he was experiencing auditory hallucinations. The circuit court rejected that
claim, finding that Kessler was not suffering from such symptoms either when he
waived counsel or at trial.

¶48 The circuit court’s finding is supported by the record. As the court
noted, Kessler’s mental health records did not show he had received any
medication for nearly two years before he was taken into custody in April 2017.

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No. 2019AP524-CR

Then, upon being taken into custody, he did not exhibit any symptoms of auditory
hallucinations, nor did he request any medication, until after his trial. From this
evidence, the court made the reasonable inference that Kessler was not, in fact,
suffering from auditory hallucinations at the time of his trial.

¶49 In addition to Kessler’s mental health records, the manner in which
Kessler conducted his own defense supports the circuit court’s finding that he was
competent to represent himself. Kessler filed a successful motion in limine,
resulting in the reduction of a charge against him, and he also elicited arguably
exculpatory testimony from a number of the State’s witnesses.

¶50 Kessler argues that there is no factual basis for the circuit court’s
finding that he was not experiencing auditory symptoms related to his
schizophrenia diagnosis when he waived counsel and at trial, and he contends that
the record supports other reasonable inferences and conclusions. He posits that
auditory hallucinations would not necessarily be observed by a third party, and he
speculates that simply because his mental health records do not show he received
any medication between July 2015 and April 2017 does not mean he did not
actually receive any medication. Further, he argues that the “inexplicable
decisions” he made “corroborate” his testimony he was suffering from auditory
hallucinations. Specifically, he points to his decisions: (1) to seek to waive
counsel only five days before trial; (2) to wear his jail-issued uniform on the first
day of trial; and (3) not to exercise his peremptory strikes.

¶51 We are not persuaded by Kessler’s arguments, for three reasons.
First, although he casts his decisions as “inexplicable,” the record reveals that at
least two of Kessler’s decisions were strategic. Namely, Kessler stated he wanted
to represent himself so the jury could get to know him “personally,” and he

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No. 2019AP524-CR

referenced his jail-issued uniform in his opening statement to tell the jury that the
“truth is the truth no mater how you dress it.”

¶52 Second, “a defendant’s unusual conduct or beliefs do not necessarily
establish incompetence for purposes of self-representation.” State v. Ruszkiewicz,
2000 WI App 125, ¶43, 237 Wis. 2d 441, 613 N.W.2d 893. Indeed, such conduct
may often occur when a defendant makes the decision to exercise his or her right
to self-representation: “It is undeniable that in most criminal prosecutions
defendants could better defend with counsel’s guidance than by their own
unskilled efforts … [a defendant] may conduct his [or her] own defense ultimately
to his [or her] own detriment.” Faretta v. California, 422 U.S. 806, 834 (1975).

¶53 Third, and most importantly, even if the record supports the
inference that Kessler was suffering from auditory hallucinations when he waived
counsel and at trial, it does not follow that the circuit court’s alternate finding that
he was not suffering from such hallucinations was clearly erroneous. It was not,
as there plainly were factual bases for the court’s findings, including those derived
from reasonable inferences. Under our standard of review, we must recognize that
the circuit court was “the only court in the position to weigh the evidence, assess
credibility, and reach a determination regarding [Kessler’s] retrospective
competency.” Smith, 367 Wis. 2d 483, ¶34.

¶54 Here, in making its retrospective competency determination, the
circuit court explicitly stated it “didn’t find Mr. Kessler’s testimony … to be more
credible than what I read in the record, especially considering the fact that
Mr. Kessler has a vested interest in the outcome of this hearing and these

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No. 2019AP524-CR

proceedings.” We defer to the court’s decision, as we must, because it is not
“totally unsupported by facts in the record.”11 See id.

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.

11
We observe that although the circuit court made a retrospective finding that Kessler
was competent to proceed pro se, the court did not explicitly make a retrospective finding that
Kessler knowingly, intelligently, and voluntarily waived his right to counsel. However, the only
basis for Kessler’s claim that he did not knowingly, intelligently, and voluntarily waive counsel
was that his auditory hallucinations directed him to fire his attorney and represent himself.
Because the court rejected Kessler’s claim that he was suffering from auditory hallucinations
when he waived counsel and at trial, we need not remand for the court to make its implicit finding
explicit.

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