Wisconsin Supreme Court: Defendant can still challenge jury trial
A defendant waived a jury trial without knowing information he
was entitled to know. Several “gaffes” later, the
defendant was left with no way to challenge the waiver.
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
March 13, 2012
– Defendant Jeffrey Sutton wasn't aware of all his rights when
he waived a jury trial on an alleged misdemeanor retail theft charge. An
appeals court essentially foreclosed a challenge to the
waiver. But recently, the Wisconsin Supreme Court reversed.
Wisconsin law requires circuit courts to conduct a personal colloquy
with defendants attempting to waive their righty to a jury trial.
Sutton signed a waiver, and the circuit court conducted a colloquy, but
Sutton was not fully informed that a 12-person jury must unanimously
agree on all the elements of the crime charged to be convicted.
He was subsequently convicted after a bench trial, triggering a
post-conviction motion for relief. However, Sutton’s
post-conviction motion failed to allege that he was unaware of his right
to a unanimous verdict when he waived his rights. Thus, the circuit
court denied the motion.
Attempts by post-conviction counsel to have the circuit court
reconsider failed. Sutton’s counsel also submitted a no-merit
report – a report to determine if an appeal is warranted –
and urged the appeals court to reject it so Sutton could make his jury
trial waiver argument.
Ultimately, the court of appeals concluded that an appeal was not
warranted and affirmed Sutton’s judgment of conviction, noting the
jury trial waiver issue was not preserved.
However, the appeals court ruled that Sutton could pursue an
ineffective assistance of counsel claim under Wis. Stat. section 974.06,
which allows prisoners in custody to challenge sentences on
constitutional grounds. The problem: Sutton was no longer in
v. Sutton, 2012 WI 23 (March 8, 2012), the Wisconsin Supreme
Court unanimously ruled that the appeals court should have remanded the
case for reconsideration despite post-conviction counsel’s errors
in preserving the jury waiver issue at the circuit court level.
“The present case features compelling reasons why the court of
appeals might have exercised its discretion to disregard the fact that
the defendant had not properly preserved his claim … and offered
the defendant a forum to raise the issue,” wrote Chief Justice
The supreme court noted that relief under section 974.06 was not
available because Sutton was no longer in custody, leaving him with no
other opportunity to litigate the claim that his jury trial waiver was
defective. Thus, the supreme court remanded the case so Sutton can
ultimately file a new or amended motion for post-conviction relief in
the circuit court.
Kaitlin Lamb and Colleen Ball, assistant state public defenders,
represented Jeffrey Sutton. James Freimuth and Christine Remington,
assistant attorneys general, represented the state. The Wisconsin
Association of Criminal Defense Lawyers filed an amicus curiae