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State v. Kidd6/6/2002
difficulties and disadvantages of self-representation, he or she is without the information with which to make a knowing, intelligent and voluntary choice to obtain an attorney or forego one.
. The State observes that, under Pickens, the circuit court is not required to engage in a colloquy in each instance and argues that the totality of the record demonstrates that Kidd knew the disadvantages of self-representation. It argues that Kidd must have known quite a bit about criminal court, since his Dane and Richland County convictions were less than two months apart. And it notes that in Dane County, Kidd signed a plea questionnaire. But the plea questionnaire does not mention Kidd's right to an attorney, or what an attorney might do for him. It does not explain the disadvantages and difficulties of self-representation. Kidd could have had an excellent knowledge of the constitutional rights he was waiving. But this is unhelpful if he did not know that an attorney might be able to assist him. This case is an example of that proposition. Kidd is now aware that his prior convictions might not provide a basis for sentence enhancement. But when he pled guilty in Richland County, it is unlikely that Kidd knew that an attorney might have helped him by, for example, attacking the earlier Dane County conviction on the same basis that his attorney is attacking it here. Although the record does not need to reflect that Kidd understood every potential way that an attorney could assist him, it must at least "affirmatively appear" that he knew that an attorney could present arguments or defenses of which Kidd was not aware. See Pickens, 96 Wis. 2d at 564. In our view, it is insufficient to make this affirmative showing through an inference that because Kidd may have been knowledgeable regarding some of his rights, he must also have known the disadvantages of self-representation.
. We conclude that for both the Dane County and Richland County cases, the totality of the records show that the State has not met its burden of showing that Kidd waived his right to counsel. Kidd has made a prima facie case of non-waiver. Accordingly, pursuant to Baker, the burden now shifts to the State to show at an evidentiary hearing by clear and convincing evidence that, despite the inadequacy of the records at the time Kidd entered his pleas, the pleas were knowingly, voluntarily and intelligently entered.
By the Court. -- Judgment reversed and cause remanded with directions.
Not recommended for publication in the official reports. See Wis. Stat. Rule 809.23(1)(b)4.
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