State v. Imani

2010 WI 66, 786 N.W.2d 40, 326 Wis. 2d 179, 2010 Wisc. LEXIS 56

• Court: Wisconsin Supreme Court
• Decided: July 7, 2010
• Docket: No. 2008AP1521-CR
• Status: Published

Opinions

ANNETTE KINGSLAND ZIEGLER, J.

¶ 1. This is a review of a published court of appeals decision¹ that reversed a judgment entered on a jury verdict by the Waukesha County Circuit Court, J. Mac Davis, Judge. Rashaad A. Imani (Imani) was convicted of one count each of armed robbery, as party to a crime, in violation of Wis. Stat. § 943.32(2) (2007-08)² and possession of a firearm by a felon in violation of Wis. Stat. § 941.29(2),³ both as a repeater pursuant to Wis. Stat. (l)(c).⁴ The court of appeals concluded that the evidence was more than sufficient for the jury to convict Imani; nevertheless, the court remanded for a new trial on the grounds that the circuit court denied Imani's pretrial motion to represent himself without engaging him in the colloquy required by State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997). The State petitioned this court for review, and we accepted. We now reverse the decision of the court of appeals and uphold Imani's conviction.

¶ 2. The issue in this case is whether the circuit court committed reversible error by denying Imani's motion to represent himself after finding that Imani did not validly waive his right to counsel under two of the four lines of inquiry prescribed in Klessig and was not competent to proceed pro se.

¶ 3. We conclude that the circuit court properly denied Imani's motion to represent himself. First, we determine that Imani did not knowingly, intelligently, and voluntarily waive the right to counsel. The circuit court engaged Imani in two of the four lines of inquiry prescribed in Klessig and properly determined that Imani (1) did not make a deliberate choice to proceed without counsel, and (2) was unaware of the difficulties and disadvantages of self-representation. If any one of the four conditions prescribed in Klessig is not met, the circuit court is required to conclude that the defendant did not validly waive the right to counsel. Second, we conclude that the circuit court's determination that Imani was not competent to proceed pro se is supported by the facts in the record. Because Imani did not validly waive his right to counsel and was not competent to proceed pro se, the circuit court was required to prevent him from representing himself.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶ 4. The facts giving rise to Imani's conviction are convoluted and largely irrelevant to this appeal. For our purposes, the evidence at trial demonstrated that on March 1, 2006, Imani and his cousin, Raziga Imani, masked and carrying firearms, entered the Guaranty Bank inside the Pick 'n Save grocery store on Appleton Avenue in Menomonee Falls. The Imanis demanded money from the bank employees and left with a metal bank box containing in excess of $100,000. With Imani driving, they fled from the scene in a stolen vehicle and were subject to a high-speed pursuit by a Menomonee Falls police officer. Imani eventually lost control of the vehicle and crashed on Hampton Avenue. The Imanis escaped from the vehicle on foot and separated.⁵

¶ 5. Still carrying his firearm, Imani entered the Milwaukee Washing Machine, Inc. store on Appleton Avenue and demanded a ride from the driver of the Buick Riviera parked outside. He told the driver, James Dukes (Dukes), that he had just robbed a bank in Menomonee Falls. Dukes drove Imani to a location about four or five minutes away. A fingerprint lifted from the Buick's passenger's side door handle was later identified as Imani's, and when presented by the police with a range of photographs, Dukes selected Imani as the individual who carjacked him.

¶ 6. On June 20, 2006, Imani was charged with one count of armed robbery, as party to a crime, and one count of possession of a firearm by a felon, both as a repeater. At the preliminary hearing, Dukes again identified Imani as the individual who carjacked him. On July 27, 2007, Imani moved to suppress Dukes' in-court identification of him on the grounds that media coverage of the robbery may have tainted the identification. The circuit court denied Imani's motion at a pretrial hearing on July 31, 2007.

¶ 7. That hearing is at the center of this appeal. After the circuit court denied Imani's motion, Imani informed the court that he would like to represent himself at trial. At that time, he was represented by Attorney Joseph Schubert, who by then was the third state public defender appointed to Imani.⁶

¶ 8. Imani reasoned that he did not feel as though his counsel "spoke up enough for [him]" during the motion hearing and that he was "very dissatisfied." In particular, he was upset that his counsel did not play a news broadcast at the hearing in an attempt to jog Dukes' memory, and he argued that his counsel had not yet fully investigated the circumstances surrounding the fingerprint analysis. "[H]aving been through this with about three lawyers," Imani felt as though he could best represent himself at trial:

So, when it comes to trial I know, like I said before, ain't nobody going to represent myself better than me. I've been dealing with this case for over a year now and I'm pretty sure that I got a fuller defense prepared that I've been preparing myself, you know, with the help of my lawyers, you know... .

¶ 9. The circuit court asked Imani how he is going to convince the court that he is competent to represent himself. Imani responded that he had been "working on" his case for 13 months, had completed the tenth grade, could read and write English, and reads at a college level. Imani also stated that he had appeared in court at least five times before in other cases, though admittedly always with counsel:

The Court: And what experience do you have with the legal system? Have you ever appeared in court besides this case?

Imani: Of course.

The Court: For what kind of matters, criminal matters, or?

Imani: Criminal matters.

The Court: How many times do you think?

Imani: At least maybe, five.

The Court: Have you ever represented yourself in court before?

Imani: No.

The Court: You have always had a lawyer?

Imani: Yes.

¶ 10. Despite those representations, the circuit court denied Imani's motion to represent himself and offered the following explanation:

While it is not the last minute on the clock we're getting close to a jury trial that requires substantial and extensive preparation. And I'm — because it is a two defendant trial it makes it particularly difficult to get that preparation on track. We not only have to have the State and Defendant, we have two defendants.

And everybody has to be prepared and ready to start the same day at the same time, and keep the case organized together. That means that any potential threat to keeping the schedule is an even bigger issue than it otherwise would be.

I also have in mind that Mr. Rashaad Imani has had several lawyers. And while he certainly is entitled to some degree to have the lawyer of his choice and to switch lawyers, that is not an unlimited right. It has to be balanced against proper preparation and conducting of a trial.

The reasons he gives they seem to be episodic driven, he comes to court today on a motion, he doesn't win the motion and now he is disgruntled. That's in and of itself not a sufficiently rational basis to justify such a decision.

I don't know that much about his capability, but he has only got a 10th grade education, he said he reads at a college level, that's the only information I have on the subject of his education and background.

He says he has been to court, but apparently those didn't involve trials, and he didn't represent himself. So while he has some observational experience with the criminal court system, it hasn't been presented to me that he has any experience actually conducting proceedings like a criminal court trial.

So in order to preserve the trial date, maintain the opportunity to be prepared and go forward, and to not make a flippant short term or immature decision go into effect, I'm going to deny it at this point.

¶ 11. The circuit court indicated that it would be willing to hear Imani's motion again. Moreover, with advance notice, the court would consider the possibility of Imani participating in the opening statement, closing argument, and questioning of the witnesses, with Attorney Schubert acting as standby counsel.

¶ 12. Imani never again moved for self-representation, and he proceeded to trial with Attorney Schubert as his counsel. The jury returned guilty verdicts on both counts, and the circuit court entered the judgment of conviction on October 29, 2007.

¶ 13. Imani appealed his conviction on two grounds: the evidence was insufficient to support the jury's guilty verdicts, and the circuit court wrongfully deprived him of his constitutional right to self-representation because he established a valid waiver of counsel and was competent to represent himself.

¶ 14. On June 3, 2009, the court of appeals reversed the circuit court's judgment of conviction and remanded for a new trial. State v. Imani, 2009 WI App 98, ¶ 1, 320 Wis. 2d 505, 771 N.W.2d 379. Despite concluding that the evidence "amply supports the verdicts," id., ¶ 21, the court determined that Imani was entitled to a new trial because the circuit court failed to conduct the waiver-of-counsel colloquy required by Klessig, id., ¶ 13. The court disagreed with Imani's assertion that he established a valid waiver of counsel, concluding instead that Imani "could not have established a valid waiver because the trial court failed to engage him in the colloquy Klessig requires." Id., ¶ 13.

¶ 15. The court of appeals properly recognized that when a defendant seeks to exercise his or her constitutional right to self-representation, the circuit court must establish that the defendant knowingly, intelligently and voluntarily waived the right to counsel and is competent to proceed pro se. Id., ¶ 14 (citing Klessig, 211 Wis. 2d at 203). If the circuit court finds that the defendant met both of those conditions, the court's denial of the defendant's right of self-representation is a structural error subject to automatic reversal. Id. (citing State v. Harvey, 2002 WI 93, ¶ 37, 254 Wis. 2d 442, 647 N.W.2d 189).

¶ 16. The court of appeals concluded that in this case, the circuit court "did not even touch on" the colloquy required in Klessig for the purpose of establishing whether Imani's waiver of counsel was knowing and voluntary. Id., ¶ 15. Moreover, as to competence, the circuit court failed to identify a "specific problem or disability which might significantly affect [Imani's] ability to communicate a meaningful defense." Id.,

¶ 17. Instead, the circuit court sacrificed Imani's right to self-representation for an illegitimate concern of preserving the court's schedule. Id., ¶ 18. On those grounds, the court of appeals concluded that Imani was entitled to a new trial.

¶ 17. The State moved for reconsideration, arguing that pursuant to Klessig, the proper remedy for a circuit court's failure to conduct the required colloquy is a post-conviction evidentiary hearing, not a new trial. On June 15, 2009, the court of appeals denied the State's motion, reasoning that "[although a new trial is granted, it is not known if [Imani] will elect self-representation at the new trial and if so, the trial court will have the opportunity to make a proper record on the issue."

¶ 18. The State petitioned this court for review, which we granted on September 24, 2009. We now reverse the decision of the court of appeals and uphold Imani's conviction.

II. STANDARD OF REVIEW

¶ 19. Whether a defendant was denied his or her constitutional right to self-representation presents a question of constitutional fact, which this court determines independently. See Klessig, 211 Wis. 2d at 204; State v. Woods, 117 Wis. 2d 701, 715, 345 N.W.2d 457 (1984). In order to determine whether a defendant knowingly, intelligently, and voluntarily waived the right to counsel, we apply constitutional principles to the facts of the case. Klessig, 211 Wis. 2d at 204. We review those facts independent of the circuit court. Id. However, a circuit court's determination that a defendant is incompetent to proceed pro se "will be upheld unless totally unsupported by the facts." Pickens v. State, 96 Wis. 2d 549, 569-70, 292 N.W.2d 601 (1980), overruled on other grounds by Klessig, 211 Wis. 2d at 206, 212 (expressly "affirming] the holding in Pickens as still controlling on the issue of competency"); see also State v. Marquardt, 2005 WI 157, ¶ 21, 286 Wis. 2d 204, 705 N.W.2d 878 (quoting State v. Garfoot, 207 Wis. 2d 214, 224, 558 N.W.2d 626 (1997)) ("We review a circuit court determination of whether a defendant is competent to proceed pro se under what is 'essentially a clearly erroneous standard of review.'").

III. ANALYSIS

¶ 20. Every criminal defendant has a fundamental right to the assistance of counsel, guaranteed by both Article I, Section 7 of the Wisconsin Constitution⁷ and the Sixth Amendment of the United States Constitution.⁸ Klessig, 211 Wis. 2d at 201-02. Equally, a defendant has a constitutional right to represent himself. Faretta v. California, 422 U.S. 806, 819 (1975) (holding that the right to self-representation is "necessarily implied by the structure of the [Sixth] Amendment"); McKaskle v. Wiggins, 465 U.S. 168, 170 (1984); Klessig, 211 Wis. 2d at 203 (recognizing that Article I, Section 7 of the Wisconsin Constitution explicitly establishes a defendant's right to conduct his own defense). "Just as the right to the assistance of counsel is identical under the Wisconsin and United States Constitutions, the right to represent oneself also does not differ." Klessig, 211 Wis. 2d at 203.

¶ 21. We, along with the United States Supreme Court, have often recognized the apparent tension between these two constitutional rights. See Faretta, 422 U.S. at 832; Klessig, 211 Wis. 2d at 203; Pickens, 96 Wis. 2d at 556. One cannot "blink[] the fact that the right of an accused to conduct his own defense seems to cut against the grain of this Court's decisions holding that the Constitution requires that no accused can be convicted and imprisoned unless he has been accorded the right to the assistance of counsel." Faretta, 422 U.S. at 832. The right to counsel is regarded as one of the most significant elements of due process. Pickens, 96 Wis. 2d at 555. Save for "some rare instances," "[i]t is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts." Faretta, 422 U.S. at 834. Accordingly, as a prerequisite to a defendant's self-representation, the circuit court must ensure that the defendant (1) has knowingly, intelligently, and voluntarily waived the right to counsel, and (2) is competent to proceed pro se. Marquardt, 286 Wis. 2d 204, ¶ 56; Klessig, 211 Wis. 2d at 203; Pickens, 96 Wis. 2d at 568-69. If the circuit court finds that both conditions are met, the court must permit the defendant to represent himself or herself. Klessig, 211 Wis. 2d at 203-04. An improper denial of a defendant's constitutional right to self-representation is a structural error subject to automatic reversal. Harvey, 254 Wis. 2d 442, ¶ 37 (citing Neder v. United States, 527 U.S. 1, 8 (1999) (citing McKaskle, 465 U.S. at 177 n.8.)). On the other hand, if the circuit court finds that either of the two conditions is not satisfied, "the circuit court must prevent the defendant from representing himself or deprive him of his constitutional right to the assistance of counsel." Klessig, 211 Wis. 2d at 203-04. We now examine each of the conditions in turn.

A. Knowing, Intelligent, and Voluntary Waiver of the Right to Counsel.

¶ 22. "So important is the right to attorney representation in a criminal proceeding that nonwaiver is presumed." Pickens, 96 Wis. 2d at 555; see also Klessig, 211 Wis. 2d at 204. The presumption of nonwaiver is overcome only upon an affirmative showing that the defendant knowingly, intelligently, and voluntarily waived the right to counsel. Klessig, 211 Wis. 2d at 204. In Klessig, this court mandated the circuit court's use of a colloquy in order to prove the defendant's valid waiver. Id. at 206. Such an examination on the record assists the circuit court in "establishing] that '[the

defendant] knows what he is doing and his choice is made with eyes open.'" Faretta, 422 U.S. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)).

¶ 23. Accordingly, to prove a valid waiver of counsel, the circuit court must conduct a colloquy designed to ensure the following:

[T]he 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, and (4) was aware of the general range of penalties that could have been imposed on him....

Klessig, 211 Wis. 2d at 206. "If the circuit court fails to conduct such a colloquy, a reviewing court may not find, based on the record, that there was a valid waiver of counsel." Id. Stated differently, a reviewing court may conclude that a defendant knowingly, intelligently, and voluntarily waived the right to counsel only if the circuit court engaged in, and found that the defendant met, the four lines of inquiry prescribed in Klessig.

¶ 24. In Klessig, the circuit court permitted Klessig to represent himself at trial without first engaging him in a waiver-of-counsel colloquy or inquiring into his competency to proceed pro se. Id. at 199. The jury found Klessig guilty of one count of burglary as party to a crime, and he was sentenced to 58 months in prison. Id. at 201. Klessig appealed the judgment of conviction, arguing that the circuit court erred by failing to conduct a hearing on whether he validly waived his right to counsel and was competent to proceed pro se. Id. In other words, Klessig claimed that the circuit court should not have permitted him to represent himself at trial. On review, this court mandated the use of the above-stated colloquy as the "clearest and most efficient means of insuring that the defendant has validly waived his right to the assistance of counsel, and of preserving and documenting that valid waiver for purposes of appeal and postconviction motions." Id. at 206. We do not depart from Klessig today.

¶ 25. The case before us, however, is the converse scenario of Klessig. Unlike Klessig, Imani did not proceed to trial without counsel. The circuit court found that Imani did not meet the four conditions required by Klessig in order to validly waive his right to counsel. The circuit court denied Imani's motion to represent himself, he proceeded to a jury trial with counsel and was found guilty, and he is now appealing the judgment of conviction on the grounds that the circuit court deprived him of his constitutional right to self-representation by not engaging him in the colloquy required by Klessig.

¶ 26. We disagree. We conclude that Imani was not deprived of his constitutional right to self-representation because the circuit court properly determined that Imani did not validly waive his right to counsel under Klessig. We are cognizant of the fact that the circuit court did not engage Imani in the full colloquy prescribed in Klessig and did not utilize the exact language or "magic words" of Klessig when conducting its colloquy. The circuit court's inquiry could have been better. Nevertheless, it is evident from the record that the circuit court engaged Imani in two of the four lines of inquiry prescribed in Klessig: whether Imani made a deliberate choice to proceed without counsel and whether Imani was aware of the difficulties and disadvantages of self-representation.⁹ Because we answer both in the negative, it necessarily follows that Imani did not validly waive his right to counsel. Even had the circuit court engaged him further, the answer would have been the same. Under Klessig, as long as the circuit court finds that one of the four conditions is not met, the court cannot permit the defendant to represent himself. We do not impose on circuit courts the requirement of placing form over substance and using "magic words" when the reality of the circumstances dictate the answer.

1. Whether Imani made a deliberate choice to proceed without counsel

¶ 27. The circuit court's explanation for denying Imani's motion to represent himself makes apparent that the court could not find that Imani deliberately chose to proceed without counsel. According to the circuit court, Imani's decision to represent himself was "flippant," "short term," and "immature." The reasons he gave did not reflect a deliberate choice but instead were "episodic driven." Specifically, the circuit court found that Imani was "disgruntled" about losing his motion to suppress Dukes' in-court identification of him, and that "in and of itself [was] not a sufficiently rational basis to justify" his decision to represent himself. We agree.

¶ 28. The record reflects that Imani did not make a deliberate choice to proceed without counsel. Rather, he made a hasty request on the heels of an unsuccessful motion hearing. Imani's immediate reason for wanting to represent himself was his belief that his counsel did not "sp[eak] up enough for [him] during [that] proceeding." He was particularly upset that his counsel did not play a news broadcast at the hearing, and he "wasn't satisfied with the questions that [his counsel] asked Mr. Dukes." Imani stated, "If [my counsel], you know, doing this type of job here then I know at trial I don't — I don't feel as though he is going to represent me well enough." It is clear that Imani did not make a deliberate choice to represent himself. Instead, he impulsively moved for self-representation as a result of his aggravation towards counsel and the fact that he did not prevail on the motion to suppress.

¶ 29. Moreover, the record indicates that despite the circuit court's invitation, Imani never before and never again expressed a desire to represent himself. To the contrary, in this case alone, he was assisted at various times by four different attorneys, and he twice expressly requested new appointment of counsel. He never took the circuit court up on its offer to hear his motion for self-representation again or to permit him to participate at trial with standby counsel. In fact, Imani's decision to represent himself at trial was evidently conditioned upon the assistance of counsel, and thus, he may not have truly sought to waive counsel in the first instance.¹⁰ Specifically, in his "heat of the moment" argument, he informed the circuit court that he "[did not] have any problem with" the trial being scheduled for the next month "as long as [his] lawyer will make a full investigation into the fingerprint."

¶ 30. We therefore agree with the circuit court's finding that Imani's choice to proceed without counsel, if it even was that, was not deliberate but instead was "episodic driven." The record reflects that he made a hasty request on the heels of an unsuccessful motion hearing and never again expressed a sincere desire to be without the assistance of counsel — until he was convicted.

2. Whether Imani was aware of the difficulties and disadvantages of self-representation

¶ 31. Without using the "magic words," the circuit court also engaged Imani in a colloquy concerning the difficulties and disadvantages of self-representation. The court twice mentioned the added difficulty in preparing for and conducting a two-defendant jury trial. The court also noted the "complicated and messy" nature of self-representation and how it "is almost always the wrong tactical move" because "it is confusing as to when you're speaking as yourself and when you're speaking on behalf of yourself."

¶ 32. Based upon our review of the record, the circuit court correctly determined that Imani was unaware of the difficulties and disadvantages of self-representation. By his own contention, his success at trial was conditioned upon the assistance of counsel. As he indicated to the circuit court, he was "pretty sure" that he had a "fuller defense prepared that [he had] been preparing [him] self, you know, with the help of [his] lawyers." In addition, as previously mentioned, he told the court that he would be ready to represent himself at trial "as long as [his] lawyer will make a full investigation into the fingerprint." Relying as he did on the assistance of counsel, we cannot conclude that Imani appreciated the difficulties and disadvantages of self-representation, even if we presume that he truly meant to waive his right to counsel.

¶ 33. In summary, we conclude that even though the circuit court could have engaged in a more thorough colloquy, it correctly determined that Imani did not validly waive his right to counsel under Klessig. The circuit court engaged Imani in two of the four lines of inquiry prescribed in Klessig and properly determined that Imani (1) did not make a deliberate choice to proceed without counsel, and (2) was unaware of the difficulties and disadvantages of self-representation. Regardless of how Imani may have answered the other two lines of inquiry, the circuit court could not have accepted his waiver of counsel as valid. Under Klessig, if any one of the four conditions is not met, the circuit court is required to conclude that the defendant did not validly waive the right to counsel.

¶ 34. Today we uphold Klessig as the controlling authority for determining whether a defendant validly waived the right to counsel and the preferred method for a circuit court to engage in such a colloquy. The use of the Klessig colloquy is mandated "in every case where a defendant seeks to proceed pro se to prove knowing and voluntary waiver of the right to counsel." Klessig, 211 Wis. 2d at 206 (emphasis added). If the circuit court fails to engage a defendant in the four lines of inquiry as prescribed in Klessig, "a reviewing court may not find, based on the record, that there was a valid waiver of counsel." Id. (emphasis added). In a case such as this one, however, where the circuit court determined that two of the four lines of inquiry were not satisfied, the circuit court did not commit automatic error requiring a new trial because the defendant could not have validly waived his right to counsel. It makes little practical sense to fault the circuit court for not engaging Imani in the full colloquy; if any one of the four conditions was not met, the circuit court was required to conclude that Imani did not validly waive his right to counsel.¹¹

¶ 35. Nevertheless, we strongly caution circuit courts that the preferred practice is to engage every defendant who seeks to proceed pro se in the full colloquy prescribed in Klessig, even if the court determines that a defendant did not validly waive the right to counsel. Even in those cases, a complete examination on the record is the "clearest and most efficient means" of ensuring that the defendant did not validly waive the right to counsel and of "preserving and documenting" that invalid waiver for purposes of appeal. See id.

B. Competence to Proceed Pro Se

¶ 36. In addition to knowingly, intelligently, and voluntarily waiving the right to counsel, a defendant who seeks to represent himself or herself must be competent to proceed pro se. Klessig, 211 Wis. 2d at 203; Pickens, 96 Wis. 2d at 567. Determining whether a defendant is competent to proceed pro se is a higher standard than determining whether a defendant is competent to stand trial. Klessig, 211 Wis. 2d at 212. "Surely a defendant who, while mentally competent to be tried, is simply incapable of effective communication or, because of less than average intellectual powers, is unable to attain the minimal understanding necessary to present a defense, is not to be allowed 'to go to jail under his own banner.'" Pickens, 96 Wis. 2d at 568 (quoting United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965)).

¶ 37. Whether a defendant is competent to proceed pro se is "uniquely a question for the trial court to determine." Pickens, 96 Wis. 2d at 568. "It is the trial judge who is in the best position to observe the defendant, his conduct and his demeanor and to evaluate his ability to present at least a meaningful defense." Id. In determining whether a defendant is competent to proceed pro se, the circuit court may consider the defendant's education, literacy, language fluency, and any physical or psychological disability which may significantly affect his ability to present a defense. Id. at 569. A defendant of average ability and intelligence may still be adjudged competent for self-representation, and accordingly, a defendant's "timely and proper request" should be denied only where the circuit court can identify a specific problem or disability that may prevent the defendant from providing a meaningful defense. Id. While the determination of competency rests significantly upon the circuit court's judgment and experience, the determination must appear in the record. Klessig, 211 Wis. 2d at 212. Our review is limited to whether the circuit court's determination is "totally unsupported by the facts apparent in the record." Pickens, 96 Wis. 2d at 569-70.

¶ 38. In this case, we conclude that the circuit court's determination that Imani was not competent to proceed pro se is also supported by the facts in the record. The circuit court inquired into Imani's level of education, his ability to read and write, and his experience with the legal system. Imani possessed only a tenth grade education and asserted, without more, that he read at a college level. As the circuit court correctly observed, Imani's experience with the criminal court system was "observational," as his court appearances always included the assistance of counsel. Considering all those factors, the circuit court determined that Imani did not possess the minimal competence necessary to conduct his own defense. We cannot conclude that the circuit court's determination is "totally unsupported" by the record. Id.

¶ 39. Moreover, contrary to the court of appeals' conclusion, it was not error for the circuit court to take into consideration the trial schedule when determining whether Imani was competent to proceed pro se. See Imani, 320 Wis. 2d 505, ¶ 18. In Pickens, which we regard as the controlling authority on competency, Klessig, 211 Wis. 2d at 212, this court recognized that a "timely and proper request" to proceed pro se should be denied only where the circuit court can identify a specific problem or disability that may prevent the defendant from providing a meaningful defense. Pick-ens, 96 Wis. 2d at 569 (emphasis added). Accordingly, the circuit court was justified in taking into consideration the timing of Imani's motion to represent himself and the fact that it was first presented to the court less than one month before a two-defendant jury trial that required "substantial and extensive preparation."

IV CONCLUSION

¶ 40. We conclude that the circuit court properly denied Imani's motion to represent himself. First, we determine that Imani did not knowingly, intelligently, and voluntarily waive the right to counsel. The circuit court engaged Imani in two of the four lines of inquiry prescribed in Klessig and properly determined that Imani (1) did not make a deliberate choice to proceed without counsel, and (2) was unaware of the difficulties and disadvantages of self-representation. If any one of the four conditions prescribed in Klessig is not met, the circuit court is required to conclude that the defendant did not validly waive the right to counsel. Second, we conclude that the circuit court's determination that Imani was not competent to proceed pro se is supported by the facts in the record. Because Imani did not validly waive his right to counsel and was not competent to proceed pro se, the circuit court was required to prevent him from representing himself.

By the Court. — The decision of the court of appeals is reversed.

1 State v. Imani, 2009 WI App 98, 320 Wis. 2d 505, 771 N.W.2d 379.

2 All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated.

Wisconsin Stat. § 943.32, "Robbery," provides:

(1) Whoever, with intent to steal, takes property from the person or presence of the owner by either of the following means is guilty of a Class E felony:

(a) By using force against the person of the owner with intent thereby to overcome his or her physical resistance or physical power of resistance to the taking or carrying away of the property; or

(b) By threatening the imminent use of force against the person of the owner or of another who is present with intent thereby to compel the owner to acquiesce in the taking or carrying away of the property.

(2) Whoever violates sub. (1) by use or threat of use of a dangerous weapon, a device or container described under s. 941.26(4)(a) or any article used or fashioned in a manner to lead the victim reasonably to believe that it is a dangerous weapon or such a device or container is guilty of a Class C felony.

3 The relevant provisions of Wis. Stat. § 941.29, "Possession of a firearm," are as follows:

(1) A person is subject to the requirements and penalties of this section if he or she has been:

(a) Convicted of a felony in this state.

(2) A person specified in sub. (1) is guilty of a Class G felony if he or she possesses a firearm under any of the following circumstances:

(a) The person possesses a firearm subsequent to the conviction for the felony or other crime, as specified in sub. (l)(a) or (b).

4 The relevant provisions of Wis. Stat. § 939.62, "Increased penalty for habitual criminality," state:

(1) If the actor is a repeater, as that term is defined in sub. (2), and the present conviction is for any crime for which imprisonment may be imposed, except for an escape under s. 946.42 or a failure to report under s. 946.425, the maximum term of imprisonment prescribed by law for that crime may be increased as follows:

(c) A maximum term of imprisonment of more than 10 years may be increased by not more than 2 years if the prior convictions were for misdemeanors and by not more than 6 years if the prior conviction was for a felony.

(2) The actor is a repeater if the actor was convicted of a felony during the 5-year period immediately preceding the commission of the crime for which the actor presently is being sentenced, or if the actor was convicted of a misdemeanor on 3 separate occasions during that same period, which convictions remain of record and unreversed. It is immaterial that sentence was stayed, withheld or suspended, or that the actor was pardoned, unless such pardon was granted on the ground of innocence. In computing the preceding 5-year period, time which the actor spent in actual confinement serving a criminal sentence shall be excluded.

5 Raziga Imani was apprehended by police that day and admitted his role in the robbery. Pursuant to a plea agreement, he testified against Imani at Imani's trial.

6 The record reflects that Imani requested new appointment of counsel at least twice.

7 Article I, Section 7 of the Wisconsin Constitution provides:

In all criminal prosecutions the accused shall enjoy the right to he heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.

8 The Sixth Amendment of the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Sixth Amendment is made applicable to the states by the Fourteenth Amendment. See Gideon v. Wainwright, 372 U.S. 335, 342 (1963); State v. Klessig, 211 Wis. 2d 194, 202, 564 N.W.2d 716 (1997).

9 In its petition for review, the State did not challenge the court of appeals' conclusion that the circuit court failed to engage Imani in the colloquy required by Klessig. However, we need not accept a party's concession of law. Bergmann v. McCaughtry, 211 Wis. 2d 1, 7, 564 N.W.2d 712 (1997).

10 "[A] defendant has no constitutional right to be actively represented in the courtroom both by counsel and by himself." Moore v. State, 83 Wis. 2d 285, 300, 265 N.W.2d 540 (1978).

11 The concurrence/dissent accuses the court of "effectively overruling]" Klessig, warning that under our reasoning, circuit courts are "no longer required to engage a defendant seeking to proceed pro se in a full and complete Klessig colloquy." Concurrence/dissent, ¶ 48. We reject the concurrence/dissent's mischaracterization of our holding. We uphold Klessig as the controlling authority for proving a defendant's knowing and voluntary waiver of the right to counsel. This case, however, is the converse scenario of Klessig — a fact that the concurrence/ dissent declines to acknowledge. In this case, the circuit court determined that Imani did not validly waive the right to counsel. Logic commands that when a series of elements is stated in the conjunctive, as is the case in Klessig, see 211 Wis. 2d at 206, thereby requiring a finding of each element in order to prove the conclusion, disproving the conclusion requires only one element to fail. The Wisconsin Jury Instructions, cited by the concurrence/dissent at ¶ 55 n.7, make this point clear:

Denial of a waiver of counsel must be supported by one of the following findings: (1) that the defendant does not understandingly and voluntarily waive counsel; (2) that the defendant does not understand the disadvantages of self-representation; or (3) that the defendant lacks the minimal competence necessary to try to represent himself or herself.

Wis JI — Criminal SM-30 at 6 (emphasis added). Thus, if the circuit court makes any one of the following findings, the court is required to deny the defendant's waiver of counsel:

-the defendant does not understand the seriousness of the charge and the maximum possible penalties; or

-the defendant does not understand that a lawyer may be of assistance and that a lawyer may be appointed if the defendant is indigent; or

-the defendant does not understand the disadvantages of self-representation; or

-the defendant does not possess the minimal competence necessary to try to represent himself or herself....

Id. at 7 (emphasis added). Again, we decline to place form over substance when logic commands the answer.