source: Caselaw Access Project

author: N. PATRICK CROOKS, J. SHIRLEY S. ABRAHAMSON, C.J. DAVID T. PROSSER, J. JON E WILCOX, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Alan J. Ernst, Defendant-Appellant.
    Supreme Court

      No. 2003AP1728-CR.

      Oral argument November 12, 2004.

      Decided July 7, 2005.

    2005 WI 107
    (Also reported in 699 N.W.2d 92.)

      For the defendant-appellant there were briefs by Jeffrey W Jensen and Law Offices of Jeffrey W Jensen, Milwaukee, and oral argument by Jeffrey W. Jensen.

    For the plaintiff-respondent the cause was argued by Michael C. Sanders, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.
   N. PATRICK CROOKS, J.

¶ 1. This case is before the court on certification from the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2001-02). The defendant, Alan J. Ernst (Ernst), who has been charged with his fifth offense of operating a motor vehicle under the influence of alcohol, asks for review of a non-final order of the Fond du Lac County Circuit Court, which granted the State of Wisconsin's (State) request to hold an evidentiary hearing, during which it will have the chance to question Ernst in an attempt to prove that Ernst's waiver of the right to counsel was valid and that he was competent to represent himself. The circuit court concluded that the record of Ernst's fourth conviction for operating under the influence of an intoxicant was deficient in two respects: 1) the difficulties and disadvantages of self-representation were not adequately explained; and 2) competency was not explicitly addressed. Thus, the circuit court, in effect, held that Ernst had made a prima facie showing that his waiver of counsel was not knowing, intelligent, and voluntary.

¶ 2. We conclude, first, based on our superintending and administrative authority, that the requirements this court imposed in State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), regarding waiver of counsel, survive the United States Supreme Court's decision in Iowa v. Tovar, 541 U.S. 77 (2004). Second, we hold that an alleged violation of the requirements of Klessig can form the basis of a collateral attack, as long as the defendant makes a prima facie showing, pointing to facts that demonstrate that he or she did not knowingly, intelligently, and voluntarily waive his or her constitutional right to counsel. Third, we conclude that when the defendant successfully makes a prima facie showing, the burden to prove that the defendant validly waived his or her right to counsel shifts to the State (State of Wisconsin). Fourth, we hold that the State may call and elicit testimony from the defendant at an evidentiary hearing in an attempt to meet its burden and, in turn, the defendant may not raise his or her Fifth Amendment privilege against testifying. Finally, we conclude that the defendant's refusal to testify under these circumstances allows a circuit court reasonably to infer that the State has satisfied its burden of showing a knowing, intelligent, and voluntary waiver of the right to counsel.

¶ 3. The relevant facts are not in dispute. On August 10,2002, the Fond du Lac County police stopped Ernst on suspicion that he was operating his vehicle while under the influence of an intoxicant (OWI). Ernst failed his field sobriety tests and was then placed under arrest. His blood-alcohol content was measured at 0.02.

¶ 4. A Fond du Lac County Assistant District Attorney filed a two-count complaint against Ernst. He was charged with an OWI, pursuant to Wis. Stat. § 346.63(l)(a), and having a prohibited alcohol concentration under § 346.63(l)(b). Because Ernst had received four prior convictions for OWI, these crimes were charged as fifth offenses.

¶ 5. Before trial, Ernst filed a motion collaterally attacking his fourth OWI conviction for the purpose of reducing the penalty enhancement in the pending case. He alleged that his Sixth Amendment right to counsel had not been validly waived when he pled guilty to the previous OWI charge. Specifically, he claimed he "was not represented by counsel and the court did not take a knowing and voluntary waiver of counsel from the defendant or determine that the defendant was competent to represent himself."

¶ 6. Following a motion hearing, the Fond du Lac County Circuit Court, Dale L. English, Judge, concluded that the record in Ernst's fourth OWI conviction, in regard to his waiver of counsel, was deficient because Ernst was not adequately instructed on the difficulties and disadvantages of proceeding pro se, and that competency was not explicitly addressed. The transcript from his plea and sentencing proceeding on February 26, 2002, in relevant part, sets forth the following:

THE COURT: Mr. Ernst, the Plea Questionnaire and Waiver of Rights form that I have received — is it your wish to proceed here today without counsel?
THE DEFENDANT: Yes, it is, Your Honor.
THE COURT: And do you feel that that's a decision that you have made of your own volition?
THE DEFENDANT: It was a hard decision, yes, it was. But, yes.
THE COURT: Okay. You understand the document that I have received? You've read through it?
THE DEFENDANT: Yes, sir, I have.
THE COURT: And this is your signature on the back side?
THE DEFENDANT: Yes, it is, Your Honor.
THE COURT: And it's dated today's date?
THE DEFENDANT: Yes, it is.
THE COURT: The form indicates that you would be entering a no contest plea; that you do have a high school diploma; that you understand the English language; that you understand the charge to which you are pleading; that you are not currently receiving treatment for a mental illness or disorder; nor have you had any alcohol, medications, or drugs within the last 24 hours. Are all of those statements true and correct?
THE DEFENDANT: Yes, they are.
THE COURT: As it relates to your constitutional rights, you have put check marks in each of the boxes preceding each of the seven rights and concludes with a statement that you understand the rights that have been checked and that you are giving them up of your own free will. Is that also true and correct?
THE DEFENDANT: Yes, it is.
The COURT: You understand the penalties that the Court could impose in this matter?
THE DEFENDANT: Yes, I do, Your Honor.

¶ 7. After the circuit court's ruling in regard to the fourth OWI conviction, the State promptly requested an evidentiary hearing to show that Ernst had knowingly, intelligently, and voluntarily waived his right to counsel in that case. The State also informed the court that it intended to call Ernst as a witness at this hearing. Ernst responded by announcing that he would assert his Fifth Amendment privilege against self-incrimination and would not testify if called as a witness.

¶ 8. After ordering the parties to submit briefs, the circuit court entered an order on June 17, 2003, which granted the State's request for an evidentiary hearing and allowed the State to question Ernst with respect to his previous waiver of counsel. The court reasoned that the State would never be able to meet its burden at such a hearing without being able to question the defendant and, that if unable to question him, the evidentiary hearing would become, in effect, meaningless. With respect to the Fifth Amendment privilege, the court held, first, "that it's disingenuous for a defendant to be able to raise a right to counsel issue . . . and then be insulated from having to testify about the very issues the defendant raises." The court also determined that Ernst could not incriminate himself with regard to the fourth OWI conviction, since he had been convicted on that charge previously. Subsequently, Ernst petitioned the court of appeals for interlocutory review of the circuit court's decision to grant an evidentiary hearing and to compel Ernst's testimony at the hearing. The court of appeals granted the petition and then certified the case to this court. We granted review and heard oral arguments on November 12, 2004.

¶ 9. On December 1, 2004, we ordered the parties to file supplemental briefs. We have considered all of the briefs, as well as the oral arguments, and now reverse the order of the circuit court, since we determine that a sufficient prima facie case has not been established. We remand the case for further proceedings consistent with this opinion, where Ernst would have the opportunity to file an affidavit and attempt to establish a prima facie case.

¶ 10. Whether a defendant knowingly, intelligently, and voluntarily waived his Sixth Amendment right to counsel requires the application of constitutional principles to the facts. See Klessig, 211 Wis. 2d at 204; see also State v. Woods, 117 Wis. 2d 701, 715-16, 345 N.W.2d 457 (1984). We review such a question de novo, independently of the reasoning of the circuit court. Klessig, 211 Wis. 2d at 204. We benefit, however, from that court's analysis. Whether a party has met the burden of establishing a prima facie case presents a question of law which we review de novo. See State v. Baker, 169 Wis. 2d 49, 78, 485 N.W.2d 237 (1992).

¶ 11. We also determine whether a defendant's Fifth Amendment privilege against compulsory incrimination may he violated. Such an analysis presents a question of law and, thus, is subject to de novo review. See State v. Eastman, 185 Wis. 2d 405, 410, 518 N.W.2d 257 (1994).

HH HH t — I

¶ 12. The first issue we address is whether the requirements this court imposed in Klessig, regarding waiver of counsel, survive the United States Supreme Court's recent decision in Iowa v. Tovar. Ernst and the State seem to agree that the Klessig requirements maybe imposed as a procedural rule under the court's superintending and administrative authority over the Wisconsin court system and, thus, do not conflict with the Supreme Court's holding in Tovar.

¶ 13. We first discussed the requirements necessary to effectuate a valid waiver of counsel in Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980). In that case, the defendant attempted to have his conviction overturned because the circuit court failed to conduct an adequate inquiry into his decision to proceed pro se. Specifically, the defendant argued that his waiver was not knowing and voluntary. The court concluded that the record made no showing of the defendant validly waiving his right to counsel:

[I]n order for an accused's waiver of his right to counsel to be valid, the record must reflect not only his deliberate choice to proceed without counsel, but also his awareness of the difficulties and disadvantages of self-representation, the seriousness of the charge or charges he is facing and the general range of possible penalties that may be imposed if he is found guilty. Unless the record reveals the defendant's deliberate choice and his awareness of these facts, a knowing and voluntary waiver will not be found.

Id. at 563-64. Although the court held that this colloquy was the best way to accomplish a thorough examination of the defendant's waiver, it did not require that such colloquy occur in every case. Id.

¶ 14. Next, in Klessig, we "overruled] Pickens to the extent that we mandate the use of a colloquy 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. Although Klessig also involved a defendant claiming an invalid waiver of counsel, the court prescribed a higher standard than previously applied in this state. Specifically, the court held:

To prove such a valid waiver of counsel, the circuit court must conduct a colloquy designed to ensure that the 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. 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. (citation omitted). The court adopted such requirements in order to insure that the defendant validly waived his right to counsel and to preserve appellate resources by making the standard clear. See id.

¶ 15. Most recently, in Tovar, the United States Supreme Court reviewed warnings which the Iowa Supreme Court had held essential to a "knowing and intelligent" waiver of the Sixth Amendment right to counsel. The specific warnings that the state required were as follows:

(1) advise the defendant that "waiving the assistance of counsel in deciding whether to plead guilty [entails] the risk that a viable defense will be overlooked"; and (2) "admonis [h]" the defendant "that by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty"?

Tovar, 541 U.S. at 81. In rejecting the argument that such warnings were required by the Sixth Amendment, the Supreme Court held that a valid waiver of the Sixth Amendment right to counsel did not require the particular language used by the Iowa courts. Instead, the Supreme Court held that "[t]he constitutional requirement is satisfied when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea." Id.

¶ 16. The Court emphasized that it has never "prescribed any formula or script to be read" when a defendant seeks to proceed pro se. See id. at 88. The central component for a valid waiver is simply that the defendant " 'knows what he is doing and his choice is made with his eyes open.'" Id. at 89 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)). Such information "will depend on a range of case-specific factors, including the defendant's education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding." Id. at 88 (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

¶ 17. With these above principles in mind, the United States Supreme Court rejected some of the admonitions that were required by the Iowa Supreme Court, which had justified such requirements on Sixth Amendment grounds. The Supreme Court carefully framed its holding to allow states to continue adopting procedural rules to guide the waiver of counsel procedure. Specifically, the court held: "We note, finally, that States are free to adopt by statute, rule, or decision any guides to the acceptance of an uncounseled plea they deem useful." Id. at 94 (citations omitted).

¶ 18. We recognize the Supreme Court's decision in Tovar. We conclude, however, that the Klessig requirements are not based on the Sixth Amendment and, thus, do not conflict with the Supreme Court's holding. We do not conclude that the Klessig requirements are dictated by Article I, Section 7 of the Wisconsin Constitution. In Klessig, we never suggested that the colloquy requirements were based on either the United States Constitution or Article I, Section 7 of our State Constitution. Instead, we made it clear that the requirements were a court-made procedural rule. Specifically, this court used its superintending and administrative authority to "mandate" the use of a colloquy in cases involving a defendant's waiver of the right to counsel, in order to serve "the dual purposes of ensuring that a defendant is not deprived of his constitutional rights and of efficiently guarding our scarce judicial resources." Klessig, 211 Wis. 2d at 206.

¶ 19. Superintending and administrative authority allows courts to formulate "procedural rules not specifically required by the Constitution or the [Legislature]." United States v. Hasting, 461 U.S. 499, 505 (1983). Such rules are designed to implement a remedy for a violation of recognized rights. See id. In Wisconsin, our authority to supervise the courts and issue procedural rules is found in Article VII of the Wisconsin Constitution. Article VII, Section 3 provides us with "superintending and administrative authority over all courts." This clause constitutes a grant of power "that is indefinite in character, unsupplied with means and instrumentalities, and limited only by the necessities of justice." Arneson v. Jezwinski, 206 Wis. 2d 217, 225, 556 N.W.2d 721 (1996) (citations omitted).

¶ 20. The justification for the superintending and administrative authority this court utilized in Klessig is similar to that which we invoked in State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). In that case, we held that a circuit court must follow prescribed methods for determining the defendant's understanding of the nature of a charge. In so holding, we concluded that, under the United States Constitution, no particular procedure is mandated for a circuit court's acceptance of a no contest or guilty plea. Instead, we made "mandatory" that, as a procedural requirement, in order to assist the circuit court in making the constitutionally required determination that a defendant's plea is voluntary, a circuit court must undertake a personal colloquy with the defendant. The purpose of the colloquy is to ascertain his or her understanding of the nature of the charge, prior to the court's acceptance of a guilty or no contest plea, pursuant to Wis. Stat. § 971.08(1). See State v. Livingston, 159 Wis. 2d 561, 572, 464 N.W.2d 839 (1991). We based the sources of the required duties of the circuit court on the statute and on our "superintending and administrative authority over the circuit courts... ." Bangert, 131 Wis. 2d at 267 (footnote omitted).

¶ 21. Similarly, in Klessig, we required a circuit court to undertake a colloquy, even though such an action was not constitutionally required. We conclude that the Klessig colloquy requirement was and is a valid use of the court's superintending and administrative authority, just as it was in Bangert, and that such a rule does not conflict in any way with the United States Supreme Court's decision in Tovar, but rather receives endorsement from the Supreme Court's language in that decision.

IV

¶ 22. We next address whether the violation of the Klessig requirements can form the basis for a collateral attack. In State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, we firmly established that "[i]n an enhanced sentence proceeding predicated on a prior conviction, the U.S. Constitution requires a trial court to consider an offender's allegations that the prior conviction is invalid only when the challenge to the prior conviction is based on the denial of the offender's constitutional right to a lawyer." Id., ¶ 17. Consequently, we must now determine whether, in a collateral attack, the violation of the Klessig requirements can be raised to the level of a constitutional violation and, if so, under what circumstances.

¶ 23. Ernst argues that our decision in Hahn should not prohibit a collateral challenge based upon the failure to follow the Klessig requirements. He contends that such a challenge based upon the failure to follow Klessig does not present a mere technical procedural violation, but rather that the required procedure is one by which the courts determine if a defendant validly waived his Sixth Amendment right to counsel. Specifically, Ernst argues "the violation of the rule has constitutional implications ... If the procedure is not followed the default adjudication is that the waiver of counsel was not freely and voluntarily made (i.e. the defendant was denied his constitutional right to counsel)."

¶ 24. Conversely, the State contends that a violation of the Klessig requirements cannot comprise a constitutional violation and, thus, satisfy the test for a collateral attack. The State argues that there is a difference between a constitutional standard and "the procedures which states must follow to achieve conformance with the constitutional standard." Bangert, 131 Wis. 2d at 257. The State relies on our decision in Bangert to argue that the violation of a circuit court's required duty, based on our superintending and administrative authority, cannot, by itself, be the basis for a constitutional violation. In Bangert, we held that a violation of a court-made procedural rule, "though itself not constitutionally significant, may have constitutional ramifications," because "[i]f a defendant's understanding of the nature of the charge is not evidenced in some manner, then the plea will not meet the constitutional standard of voluntariness." Id. at 261 n.3.

¶ 25. We agree that a defendant must do more than allege that " 'the plea colloquy was defective'" or the " 'court failed to conform to its mandatory duties during the plea colloquy'" to satisfy the standard for collateral attacks set forth in Hahn. See State v. Hampton, 2004 WI 107, ¶ 57, 274 Wis. 2d 379, 683 N.W.2d 14. Instead, the defendant must make a prima facie showing that his or her constitutional right to counsel in a prior proceeding was violated. In order to avoid any question concerning a valid waiver, "[t]he record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understanding^ rejected the offer." Carnley v. Cochran, 369 U.S. 506, 516 (1962). For there to be a valid collateral attack, we require the defendant to point to facts that demonstrate that he or she "did not know or understand the information which should have been provided" in the previous proceeding and, thus, did not knowingly, intelligently, and voluntarily waive his or her right to counsel. See Hampton, 274 Wis. 2d 379, ¶ 46 (citing Bangert, 131 Wis. 2d at 274-75). Any claim of a violation on a collateral attack that does not detail such facts will fail.

¶ 26. Applying the above principles to the facts of this case, we hold that Ernst's attempt to initiate a collateral attack failed. As noted earlier: "Whether a party has met its burden of establishing a prima facie case is a question of law that we decide de novo." Baker, 169 Wis. 2d at 78 (citation omitted). In his motion to avoid, for enhancement purposes, the effect of his prior conviction, Ernst asked the circuit court to set aside his fourth OWI conviction, because he was "not represented by counsel and the court did not take a knowing and voluntary waiver of counsel from the defendant. ..." Ernst made no mention of specific facts that show that his waiver was not a knowing, intelligent, and voluntary one. Instead, Ernst simply relied on the transcript and asserted that the court's colloquy was not sufficient to satisfy Klessig. Specifically, he argued: "The Court did not take a valid waiver of counsel from the defendant in Case No. 02-CT-70 because the Court did not address each of the four Klessig factors with Alan Ernst in that case." Since this was a collateral attack, the lack of specific facts resulted in a failure to establish a prima facie case that Ernst did not knowingly, intelligently, and voluntarily waive his right to counsel. Accordingly, the decision of the circuit court on this issue must be reversed.

V

¶ 27. We next determine the proper procedures for the court to apply when the defendant makes a sufficient prima facie showing on a collateral attack. Both parties agree that if the defendant makes such a showing, then the burden shifts to the State to prove by clear and convincing evidence that the defendant's waiver of counsel was knowingly, intelligently, and voluntarily entered. See Klessig, 211 Wis. 2d at 207. We agree with the parties as to the burden of proof, and conclude that the court should, at such a time, hold an evidentiary hearing to allow the State an opportunity to meet its burden. "If the State is unable to establish by clear and convincing evidence that the defendant knowingly, intelligently, and voluntarily waived his right to the assistance of counsel, the defendant will be entitled ..." to attack, successfully and collaterally, his or her previous conviction. Id.

¶ 28. Ernst argues, however, the State should not be able to examine the defendant at the evidentiary hearing. He contends that no case in Wisconsin involving a collateral attack has required the defendant to testify at an evidentiary hearing, and that this court should refrain from doing so. Ernst also argues that the State's reliance on Klessig and Bangert is misplaced. Specifically, he asserts that because both cases involved a direct attack on a prior conviction, they should be treated differently than a collateral attack. Finally, Ernst contends that any requirement to make the defendant testify impinges his Fifth Amendment privilege against compulsory self-incrimination.

¶ 29. The State, on the other hand, agrees with the circuit court that Ernst should be required to testify as to his knowledge concerning the previous waiver of counsel, without protection from the Fifth Amendment privilege. The State asserts that, under current Wisconsin law, it is acceptable to examine the defendant at a hearing to establish if the defendant's waiver of counsel was knowing, intelligent, and voluntary. Additionally, the State contends that the defendant cannot rely on Fifth Amendment protection, because a defendant such as Ernst has waived the privilege by putting into issue his or her lack of understanding regarding the waiver of counsel.

¶ 30. We agree with the State that Wisconsin law allows a defendant to be questioned at an evidentiary hearing concerning a collateral attack on the waiver of right to counsel. In Klessig, we held that at an eviden-tiary hearing "the State is required to prove by clear and convincing evidence that [the defendant's] waiver of counsel was knowing, intelligent and voluntary." Klessig, 211 Wis. 2d at 207. In doing so, we adopted "an evidentiary hearing procedure for resolving invadid waiver of counsel claims that is similar to the procedure established by this court for the resolution of guilty plea waivers." Id.

¶ 31. In Bangert, this court established the procedure regarding guilty plea waivers. There, we held that when the defendant makes a prima facie showing that he or she "did not know or understand the information which should have been provided at the plea hearing, the burden will then shift to the state to show by clear and convincing evidence that the defendant's plea was knowingly, voluntarily, and intelligently entered. . . ." Bangert, 131 Wis. 2d at 274. To do so, the State "may then utilize any evidence which substantiates that the plea was knowingly and voluntarily made." Id. at 274-75. Specifically, the court held:

In essence, the state will be required to show that the defendant in fact possessed the constitutionally required understanding and knowledge which the defendant alleges the inadequate plea colloquy failed to afford him. The state may examine the defendant or defendant's counsel to shed light on the defendant's understanding or knowledge of information necessary for him to enter a voluntary and intelligent plea.

Id. at 275 (citations omitted). We adopt the same procedure as Bangert and Klessig outlined, for situations such as the one here involving a collateral attack, if a prima facie case has been shown. We find no reason to apply a different procedure in this circumstance than that which would apply on a direct attack against a prior conviction.

¶ 32. We next address a defendant's ability to raise his or her Fifth Amendment privilege against testifying in an evidentiary hearing. Ernst alleges that if he were made to testify at an evidentiary hearing on a collateral attack, the court would be impinging upon his Fifth Amendment privilege against self-incrimination. The State contends that the defendant is precluded from asserting his or her Fifth Amendment privilege against testifying, because the privilege has been waived.

¶ 33. We agree with the State that a defendant, by putting into issue his or her lack of knowledge regarding the waiver of counsel, has waived the privilege against testifying. To make a prima facie showing a defendant is required to point to facts that demonstrate that he or she did not knowingly, intelligently, and voluntarily waive his or her constitutional right to counsel. An affidavit from the defendant setting forth such facts would be necessary, in order to establish a prima facie case. Accordingly, once a defendant successfully makes a prima facie showing, the defendant cannot avoid testifying about the circumstances concerning the waiver when the State decides to challenge the claim that the waiver was not valid. No defendant can "testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details." Mitchell v. United States, 526 U.S. 314, 321 (1999) (citation omitted).

¶ 34. Similar problems arise in regard to a defendant testifying at a criminal trial. In Brown v. United States, 356 U.S. 148 (1958), the United States Supreme Court held that a defendant has no right to set forth facts in his favor during a direct examination, without laying himself open to cross-examination. See id. at 155. We find language here relevant to our case:

Such a witness has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts and his reliability as a witness, not to testify at all. He cannot reasonably claim that the Fifth Amendment gives him not only this choice but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute. It would make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.

Id. at 155-56. A similar scenario arose before us in Neely v. State, 97 Wis. 2d 38, 292 N.W.2d 859 (1980). In that case, the defendant took the stand in his own defense, but refused to answer questions on cross-examination on the grounds that his answers might be incriminating. This court held, in denying the defendant's request to invoke the Fifth Amendment, "that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination. See id. at 45 (citations omitted). Therefore, just as we will not allow a defendant to take the stand in his or her own behalf and then claim his or her Fifth Amendment privilege on matters related to the subject matter of the direct examination, we will not allow a defendant to claim in an affidavit necessary to establish a prima facie case, in support of his or her motion, a lack of a knowing, intelligent, and voluntary waiver of counsel, and then raise the privilege upon the State's attempt to refute that claim.

¶ 35. Finally, if the defendant refuses to testify under these circumstances, a circuit court would be free to draw the reasonable inference that the State has satisfied its burden, and that the waiver of counsel was a knowing, intelligent, and voluntary one. The defendant may not "pick and choose what aspects of a particular subject to discuss without casting doubt on the trustworthiness of the statements and diminishing the integrity of the factual inquiry." Mitchell, 526 U.S. at 322.

¶ 36. While we recognize that courts in criminal proceedings have generally not inferred guilt from a defendant's silence, see Griffin v. California, 380 U.S. 609 (1965), in this circumstance, where the state's ability to meet its burden relies on the defendant's testimony, we conclude that a refusal of the defendant to testify would allow the circuit court reasonably to infer that the state has met its burden of showing a knowing, intelligent, and voluntary waiver of counsel by the defendant. Such a determination is very different than inferring guilt based on the silence of a defendant.

VI

¶ 37. In sum, we conclude, based on our superintending and administrative authority, that the requirements this court imposed in Klessig, regarding waiver of counsel, survive the United States Supreme Court's decision in Iowa v. Tovar. Second, we hold that an alleged violation of the requirements of Klessig can form the basis of a collateral attack, as long as the defendant makes a prima facie showing, pointing to facts that demonstrate that he or she did not knowingly, intelligently, and voluntarily waive his or her constitutional right to counsel. Third, we conclude that when the defendant successfully makes a prima facie showing, the burden to prove that the defendant validly waived his or her right to counsel shifts to the State. Fourth, we hold that the State may call and elicit testimony from the defendant at an evidentiary hearing in an attempt to meet its burden and, in turn, the defendant may not raise his or her Fifth Amendment privilege against testifying. Finally, we conclude that the defendant's refusal to testify under these circumstances allows a circuit court reasonably to infer that the State has satisfied its burden of showing a knowing, intelligent, and voluntary waiver of the right to counsel.

By the Court. — The order of the circuit court is reversed, and the cause is remanded for further proceedings consistent with this opinion.

SHIRLEY S. ABRAHAMSON, C.J.

¶ 38. (concurring). For a discussion of the nature of the supreme court's superintending authority over all courts, see Part I of my concurrence in State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110, joined by Justices Bradley, Crooks, and Butler.

DAVID T. PROSSER, J.

¶ 39. (concurring). In State v. Klessig, 211 Wis. 2d 194, 564 N.W 2d 716 (1997), this court was asked to determine whether defendant Klessig had knowingly, intelligently, and voluntarily waived his Sixth Amendment right to counsel before he represented himself in a felony jury trial. The court noted that the trial court had not engaged the defendant in an on-the-record colloquy to assess his waiver, and it held that "the record is insufficient to determine whether Klessig's waiver of counsel was knowing, intelligent and voluntary." Klessig, 211 Wis. 2d at 197. To remedy this deficiency, the court remanded the case to the circuit court for an evidentiary hearing at which the State would be required to prove by clear and convincing evidence that Klessig's waiver of counsel was knowing, intelligent, and voluntary. Id. at 207.

¶ 40. As part of the opinion, the court mandated "the use of a colloquy in every case where a defendant seeks to proceed pro se [in order] to prove knowing and voluntary waiver of the right to counsel." Id. at 206. It then set forth the following requirements:

To prove such a valid waiver of counsel, the circuit court must conduct a colloquy designed to ensure that the 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. See Pickens [v. State], 96 Wis. 2d [549,] 563-64[, 292 Wis. 2d 601 (1980)]. 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.
When an adequate colloquy is not conducted, and the defendant makes a motion for a new trial or other postconviction relief from the circuit court's judgment, the circuit court must hold an evidentiary hearing on whether the waiver of the right to counsel was knowing, intelligent, and voluntary.

Id. at 206-07 (emphasis added).

¶ 41. The court did not identify the source of its authority to mandate the above-described colloquy. It simply explained that

[conducting such an examination of the defendant is 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. [A] properly conducted colloquy serves the dual purposes of ensuring that a defendant is not deprived of his constitutional rights and of efficiently guarding our scarce judicial resources. We hope that our reaffirmation of the importance of such a colloquy will encourage the circuit courts to continue their vigilance in employing such examinations.

Id. at 206.

¶ 42. The Klessig decision was understandable and rational, and I have no trouble affirming the substance of it in this case, notwithstanding the Supreme Court's ruling in Iowa v. Tovar, 541 U.S. 77 (2004). I do have trouble, however, with this court's utilization of its "superintending and administrative authority" in Article VII, Section 3 of the Wisconsin Constitution as a basis for its action.

¶ 43. I expressed my concern about the misapplication of Article VII, Section 3 in State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110 (Prosser, J., concurring in part, dissenting in part). The present case represents at least the second time this term that the court has invoked this superintending authority. See Jerrell.

¶ 44. My concern about the court's new reliance on this provision is threefold. First, the superintending authority of the supreme court over all courts is intended to give this court broad power to protect the legal rights of a litigant when the ordinary course of litigation, such as review, is inadequate. The authority was never intended as carte blanche power to mandate "rules" of general application for the bench and bar through the vehicle of individual cases. This is the gist of my Jerrell dissent.

¶ 45. Second, the use of the court's superintending authority in the manner it is now being used can become addictive and lead to abuse. Over and over our opinions repeat the mantra that our superintending authority is "unlimited in extent" or "limited only by the necessities of justice," as though there were no bounds to the court's power to do "justice." This sort of nonsense needs to be exposed before this court does something that will provoke a crisis. By contrast, our court does have power to promulgate judicial rules through an orderly open process. See Wis. Stat. § 751.12 and SCR Ch. 98. This power is both inherent and delegated, but it is not unlimited. Our invocation of the court's superintending authority as justification to make rules in opinions is an indication that we don't think we have traditional rulemaking power over a particular subject or we are unwilling to take the time to go through the proscribed rulemaking process.

¶ 46. Third, the court does not necessarily do a good job when it legislates from the bench. We will see this, in time, in the Jerrell rule because the court failed to answer many important questions about its scope. We see it in this case as we attempt to apply the "rule" from Klessig.

¶ 47. Klessig involved a direct appeal. The court said: "When an adequate colloquy is not conducted, and the defendant makes a motion for a new trial or other postconviction relief from the circuit court's judgment, the circuit court must hold an evidentiary hearing on whether the waiver of the right to counsel was knowing, intelligent, and voluntary." Klessig, 211 Wis. 2d at 206-07 (emphasis added). The Klessig admonition did not draw any distinction between a direct appeal and a collateral attack, but it would have been fine if the court had not portrayed it as a "rule" for everyone. Today we are forced to "amend" that "rule" to avoid the result we dictated in the previous mandate.

¶ 48. The court should confine itself to the adoption of real "rules" through proper procedures and the pronouncement of aspirational standards and guidelines that are persuasively explained, faithfully applied, and quickly included in the Benchbook for judges. The latter course would avoid a separation of powers issue and allow judges some latitude in the way they manage the courts and protect statutory and constitutional rights.

¶ 49. I therefore respectfully concur.

JON E WILCOX, J.

¶ 50. (concurring in part, dissenting in part). I agree with the majority opinion that this court should continue to require the waiver of counsel colloquy set forth in State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997). Majority op., ¶ 2. As the court recognized in Klessig, such a colloquy serves to conserve judicial resources on appeal and ensures that a valid waiver of counsel is taken in a clear and efficient manner. Klessig, 211 Wis. 2d at 206.

¶ 51. I also agree with the majority's decision to do so utilizing this court's superintending and administrative authority in this instance for two reasons. First, as the majority correctly indicates, majority op., ¶ 18, Klessig itself can be read as imposing the colloquy requirement as a court-made procedural rule. Klessig, 211 Wis. 2d at 206. Second, mandating the colloquy requirement as a matter of state constitutional law would be inconsistent with Klessig. As we stated in Klessig, "[tjhe scope, extent, and, thus, interpretation of the right to assistance of counsel is identical under the Wisconsin Constitution and the United States Constitution." Id. at 202-03 (emphasis added). See also Jones v. State, 63 Wis. 2d 97, 105, 216 N.W.2d 224 (1974)(accord). In Iowa v. Tovar, 541 U.S. 77, 91-92 (2004), the United States Supreme Court held that one of the colloquy requirements we set forth in Klessig is not mandated by the federal constitution.

¶ 52. One of the requirements we set forth in Klessig was that the defendant be informed of the "difficulties and disadvantages of self-representation[.]" Klessig, 211 Wis. 2d at 206. In Tovar, the Supreme Court held that a strikingly similar requirement imposed by the Iowa Supreme Court was not compelled by the Sixth Amendment. Tovar, 541 U.S. at 91-92. As such a requirement is not compelled by the federal constitution and because "[t]he scope, extent, and, thus, interpretation of the right to assistance of counsel is identical under the Wisconsin Constitution and the United States Constitution!;,]" Klessig, 211 Wis. 2d at 202-03, such a requirement cannot be mandated by the Wisconsin Constitution. While some of the requirements we set forth in Klessig may be constitutionally necessary before a defendant can validly waive his right to counsel, clearly a defendant is not constitutionally entitled, as part of the right to counsel, to be warned about the dangers and disadvantages of self-representation.

¶ 53. As such, I disagree with the majority's conclusion that a violation of Klessig in this instance may form the basis of a collateral attack on Ernst's guilty plea. Majority op., ¶ 2. Ernst argues he is entitled to a plea withdrawal because he "was not adequately instructed on the difficulties and disadvantages of proceeding pro se." Majority op., ¶ 6. As discussed, in light of Tovar, such an instruction is not required under either the federal or state constitution.

¶ 54. In State v. Hahn, 2000 WI 118, ¶ 4, 238 Wis. 2d 889, 618 N.W.2d 528, this court held that a defendant cannot collaterally challenge a prior state conviction unless the challenge is based on "a violation of the constitutional right to a lawyer" in the previous proceeding. "In an enhanced sentence proceeding predicated on a prior conviction, the U.S. Constitution requires a trial court to consider an offender's allegations that the prior conviction is invalid only when the challenge to the prior conviction is based on the denial of the offender's constitutional right to a lawyer." Id., ¶ 17.

¶ 55. Thus, logically, if a defendant pleading guilty need not be informed of the dangers and disadvantages of self-representation as part of the constitutional guarantee of the right to counsel, and if the only legitimate basis for collaterally attacking a prior conviction is the denial of the constitutional right to counsel, then the failure of the circuit court to warn the defendant as to the dangers and disadvantages of proceeding pro se cannot form the basis for a collateral attack on a prior conviction.

¶ 56. As noted previously, some of the Klessig requirements may be constitutionally necessary, and to that extent, a violation of Klessig could, in some instances, form the basis of a collateral attack on a prior conviction. As the majority opinion correctly indicates: "Klessig can form the basis of a collateral attack, as long as the defendant makes a prima facie showing, pointing to facts that demonstrate that he or she did not knowingly, intelligently, and voluntarily waive his or her constitutional right to counsel." Majority op., ¶ 2. However, under Tovar, being informed of the dangers and disadvantages of self-representation is not part of the constitutional right to counsel. While failure to provide this particular Klessig warning may form the basis for a reversal on direct appeal, see Klessig, 211 Wis. 2d at 206, it cannot, under Tovar and Hahn, form the basis of a collateral attack. Thus, I dissent from Part IV of the majority opinion to the extent it suggests that the failure of the circuit court to inform a defendant of the dangers and disadvantages of self-representation may form the basis of a collateral attack on his conviction or has any relevance in determining whether the defendant was denied the constitutional right to counsel.

¶ 57. I do, however, fully join Part V of the majority opinion, addressing the proper procedures for a circuit court to follow once the defendant has made a proper prima facie showing of denial of the right to counsel.

       Unless otherwise indicated all references to Wisconsin Statutes are to the 2001-02 edition.
      Wisconsin Stat. § (Rule) 809.61 states, in relevant part: "The supreme court may take jurisdiction of an appeal or other proceeding in the court of appeals upon certification by the court of appeals or upon the supreme court's own motion."

       It should be noted that having at least three prior convictions for operating a vehicle under the influence of an intoxicant lowers the prohibited alcohol concentration of a driver from the usual 0.08 to 0.02. See Wis. Stat. § 340.01(46m)(c).

       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.

       Article I, Section 7 of the Wisconsin Constitution provides, in relevant part: "In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel. ..."

        Article VII, Section 3 of the Wisconsin Constitution states, in relevant part: "The supreme court shall have superintending and administrative authority over all courts."
      In State v. Hansford, 219 Wis. 2d 226, 680 N.W.2d 171 (1998), we stated: We recognize that the Wisconsin Constitution may afford greater protection than the United States Constitution." Id. at 242; see also Iowa v. Tovar, 541 U.S. 77, 94 (2004).

       We have held that a collateral attack in a prior conviction is " 'an attempt to avoid, evade, or deny the force and effect of a judgment in an indirect manner and not in a direct proceeding prescribed by law and instituted for the purpose of vacating, reviewing, or annulling it.'" State v. Sorenson, 2002 WI 78, ¶ 35, 254 Wis. 2d 54, 646 N.W.2d 354 (quoting Zrimsek v. Am. Auto. Ins. Co., 8 Wis. 2d 1, 3, 98 N.W.2d 383 (1959)).

       In State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), we agreed to "adopt an evidentiary hearing procedure for resolving invalid waiver of counsel claims that is similar to the procedure established by this court for the resolution of guilty plea waivers." Id. at 207. Accordingly, like our decision in State v. Baker, 169 Wis. 2d 49, 485 N.W.2d 237 (1992), we require the State to prove by clear and convincing evidence that the waiver of counsel was "knowing, intelligent, and voluntary." Klessig, 211 Wis. 2d at 207.

       This is the same procedure that we have used when the appeal arises out of a postconviction motion challenging the validity of a defendant's waiver of counsel. Id. (citing Keller v. State, 75 Wis. 2d 502, 511-12, 249 N.W.2d 773 (1977)).

       The Fifth Amendment of the United States Constitution states:
      No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

       We decline to apply a "presumption against waiver" when the burden shifts to the State in situations involving collateral attacks. We agree with the State that there is no reason to presume the defendant did not properly waive his right to counsel in a collateral attack. To do so, would "ignore another presumption deeply rooted in our jurisprudence: the 'presumption of regularity' that attaches to final judgments." Parke v. Raley, 506 U.S. 20, 29 (1992) (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

       This procedure is also similar to that adopted for Goodchild hearings in Wisconsin. In State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965), this court adopted a procedure which provides for a separate hearing during which the circuit court judge is to determine whether a statement was voluntarily made and, thus, admissible at trial. In such a proceeding: "The state shall have the burden of proving volun-tariness beyond a reasonable doubt. At this hearing the defendant may take the stand and testify for the limited purpose of making a record of his version of the facts and circumstances under which the confession was obtained." Id. at 264-65 (footnote omitted).
      If the State were not allowed to call the defendant in such a hearing, the court would have the impossible task of deciding the voluntariness of a confession without the defendant's recitation of his or her version of the circumstances behind the confession. Similarly, in a situation involving a collateral attack, the State must he able to call the defendant to determine whether his or her waiver of counsel was a knowing, intelligent, and voluntary one.

       Although Ernst argues that we should apply different procedures on a direct attack than we do on a collateral attack, we find this argument to be unpersuasive. Under a direct attack, like in Klessig, Ernst concedes that a defendant could be compelled to testify at an evidentiary hearing whether he or she knowingly waived the right to counsel. However, Ernst then alleges that a collateral attack situation is entirely different than a direct attack and, thus, requires different procedures. We conclude that such a ruling would make the State's burden in a collateral attack more difficult than in a direct attack, and we find no reason for doing so.

       In Mitchell v. United States, 526 U.S. 314 (1999), the Supreme Court held that a defendant's guilty plea did not waive his or her right to remain silent at sentencing proceedings. Specifically, the court held: "[t]he Fifth Amendment by its terms prevents a person from being 'compelled in any criminal case to be a witness against herself.' To maintain that sentencing proceedings are not part of 'any criminal case' is contrary to the law and to common sense." Id. at 327 (citation omitted).
      Certainly Mitchell should not be extended to situations involving collateral attacks. The Supreme Court's holding was limited to the defendant's right to remain silent with respect to the specific facts of the offense in question. In this case, the State wants to ask Ernst about whether his waiver of right to counsel, in a previous proceeding, was knowing, intelligent, and voluntary. The State would not make any inquiry regarding the specific facts involved in his previous OWI conviction.
      We also note that other courts have declined to extend Mitchell to situations involving sentence enhancements, where there is no inquiry about the factual details of the underlying crime. See State v. Blunt, 71 E3d 657, 662 (Wash. Ct. App. 2003).

        Compare State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997)("the circuit court must conduct a colloquy designed to ensure that the defendant: (1) made a deliberate choice to proceed without counsel[.]") with Iowa v. Tovar, 541 U.S. 77, 88 (2004) ("We have described a waiver of counsel as intelligent when the defendant 'knows what he is doing and his choice is made with eyes open.'")(quoting Adams v. United States, 317 U.S. 269, 279 (1942)).


author: PATIENCE DRAKE ROGGENSACK, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Henry W Aufderhaar, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 2003AP2820-CR.

      Oral argument April 27, 2005.

      Decided July 7, 2005.

    2005 WI 108
    (Also reported in 700 N.W.2d 4.)

      For the defendant-appellant-petitioner there were briefs by J. Paul Neumeier, Jr., Raymond E. Krek and Krek & Brantmeier, S.C., Jefferson, and oral argument by Raymond E. Krek.

    For the plaintiff-respondent the cause was argued by Christopher G. Wren, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
   PATIENCE DRAKE ROGGENSACK, J.

¶ 1. Henry W. Aufderhaar seeks review of a court of appeals decision affirming a circuit court order denying Aufderhaar's motion to dismiss the criminal proceedings against him or transfer jurisdiction to the juvenile court. Aufderhaar argues that neither the circuit court exercising juvenile court jurisdiction nor the circuit court to which waiver was ordered had personal jurisdiction over him because the juvenile court, which held a waiver hearing and waived him into adult court, failed to follow the statutory requirements for service of process in juvenile cases. We conclude that the failure to follow the statutory requirements for service defeats the State's assertion of personal jurisdiction and requires the circuit court to dismiss the criminal charges without prejudice and the juvenile court to vacate the waiver order. We therefore reverse and remand.

I. BACKGROUND

¶ 2. Aufderhaar was fifteen years old and living with his parents in Whitewater, Wisconsin on June 4, 2001, when he was interviewed by a police officer about five allegations of second-degree sexual assault of a child and two allegations of fourth-degree sexual assault of a child. Later that month, on June 29, he moved with his parents. The family lived with Aufderhaar's grandfather for approximately two weeks and then moved to Montana. On August 21, the Jefferson County District Attorney filed a delinquency petition against Aufderhaar, but when authorities learned that Aufder-haar had moved with his family to Montana, the file was transferred to Walworth County, where the incidents were alleged to have occurred.

¶ 3. On October 9, 2001, Walworth County attempted to mail documents containing the pending charges to Aufderhaar and his parents in Montana, but the mail was returned as "Attempted-Not Known." On October 26, a delinquency petition was filed in Wal-worth County with a return date of November 8. On October 31, a juvenile court clerk mailed the summons and delinquency petition to the Aufderhaars' former address in Whitewater. Aufderhaar did not appear for the initial plea hearing on November 8 and a capias was ordered. The court did not grant a continuance, nor was service made personally or by certified mail. The case then sat dormant for about a year and a half.

¶ 4. On March 6, 2003, the juvenile court clerk received a telephone call from Montana authorities that Aufderhaar was involved in a juvenile matter in that state relating to sexual behavior. The clerk forwarded this information to the district attorney's office and on March 12, the district attorney filed a petition for waiver into adult court in the still-pending delinquency petition. By this time, Aufderhaar was more than seventeen years old. The. Montana authorities had given the Walworth County clerk a new address for Aufderhaar, so she sent the waiver petition to that new address. The waiver petition was not returned.

¶ 5. On April 23, the juvenile court waived Aufderhaar in absentia into adult court. It subsequently issued an order to that effect. A criminal complaint was filed, and a warrant was issued.

¶ 6. On October 2, 2003, Aufderhaar appeared in Walworth County and challenged the adult court's personal jurisdiction over him. He asserted that Wis. Stat. § 938.27(3)(a)l (2001-02) mandates the juvenile court to notify the child and parents of all hearings, that Wis. Stat. § 938.273(1) requires a continuance and personal service if there is no appearance at the initial proceeding and that the same statute allows for service by certified mail in the event personal service is deemed to be impracticable. Aufderhaar alleged that because the statute was not followed, the juvenile court lacked personal jurisdiction over him and it had no authority to waive him into adult court. In the alternative, Aufderhaar argued that the waiver in absentia violated due process. Aufderhaar also argued that the 502-day delay in filing the juvenile waiver petition was unreasonable and prejudiced him.

¶ 7. The circuit court rejected these arguments. It concluded that Aufderhaar had absconded with his family in order to avoid prosecution. The circuit court stated that although the juvenile court did not expressly say at the waiver hearing that any attempt at service would have been ineffectual because the Aufder-haars were intent on avoiding service, such an assumption was implicit in its mention that there was a warrant out for Aufderhaar's father, who was "on the run." The circuit court concluded that it was correct to assume service would have been ineffectual. The circuit court ruled, in the alternative, that Aufderhaar had notice of the waiver hearing because the waiver petition mailed to him was presumed to have reached him since it was not returned as undeliverable. In the circuit court's view, this notice was sufficient to defeat the claim of lack of personal jurisdiction. Regarding the delay, the circuit court held that while the State may have been negligent in not acting in a timely manner, it did not do so with the intent to manipulate the system so as to be able to try Aufderhaar as an adult. Therefore, there was no violation of his due process rights.

¶ 8. Aufderhaar then filed a petition for leave to appeal a nonfinal order. He raised three arguments: (1) that there was an unreasonable delay in the filing of the waiver petition (502 days); (2) that he was not given proper notice of the waiver hearing; and (3) that the waiver granted in absentia denied him due process. The court of appeals granted the petition. On appeal, the court affirmed the circuit court's denial of Aufderhaar's motion, but on different grounds. The court of appeals rejected the circuit court's conclusion that service would have been ineffectual because Aufderhaar's father was "on the run," stating:

First, the record shows no factual basis for finding that the father had moved to avoid the law other than that he had two pending misdemeanors. Second, even had the father moved to avoid the law and would work to avoid personal service, we fail to see how sending certified mail to the correct mailing address in Montana would somehow have been a useless exercise. And third, we do not understand how a juvenile can be held to be vicariously liable for the actions of a parent in moving out of state such that the State is relieved from even trying to get the correct address and mailing a document to that address by certified mail.

The court of appeals further stated:

It is undisputed that the juvenile court erred when, following Aufderhaar's nonappearance at his initial hearing to respond to the delinquency petition, it failed to comply with Wis. Stat. § 938.273, which requires the court to continue the matter and to order either personal service or service by certified mail unless it finds that such service would be ineffectual. The question to be decided is the legal ramifications of such a failure.

The court concluded that the State's failure to follow the provisions of Wis. Stat. § 938.273 did not deprive the juvenile court of personal jurisdiction over Aufder-haar, pursuant to State v. Jermaine T.J., 181 Wis. 2d 82, 510 N.W.2d 735 (Ct. App. 1993). The court stated " 'it is the delinquency petition that is the critical procedure for acquiring personal jurisdiction over the juvenile.'" (Quoting Jermaine T.J., 181 Wis. 2d at 91.) In response to the 502-day delay, the court affirmed the circuit court's conclusion that the delay was not intentional and therefore not in violation of Aufderhaar's due process rights.

¶ 9. Aufderhaar filed a petition to review, raising two issues: (1) whether a 502-day delay between the filing of the juvenile delinquency petition and the filing of a waiver petition demands dismissal of the adult court criminal proceedings; and (2) whether the failure of the State and the juvenile court to follow the statutory provisions for service deprived the circuit court of personal jurisdiction. We granted the petition.

II. DISCUSSION

A. Standard of Review

¶ 10. Due process determinations are questions of law we decide de novo. State v. Sorenson, 2002 WI 78, ¶ 25, 254 Wis. 2d 54, 646 N.W.2d 354. This case turns in part on questions of statutory interpretation to which we apply a de novo standard of review, but benefiting from the analyses of both the circuit court and the court of appeals. State v. Cole, 2003 WI 59, ¶ 12, 262 Wis. 2d 167, 663 N.W.2d 700.

B. Waiver Petition

¶ 11. Aufderhaar first argues that the 502-day delay between the filing of the juvenile delinquency petition and the filing of a waiver petition violates his due process rights and requires dismissal of the adult court criminal proceedings. We have ruled that only an intentional delay by the State to avoid juvenile court jurisdiction constitutes a due process violation requiring dismissal. See State v. Montgomery, 148 Wis. 2d 593, 595, 436 N.W.2d 303 (1989). We agree that there is no evidence the State delayed filing the waiver petition until after Aufderhaar turned seventeen. The State did not resume its prosecution of Aufderhaar until Montana authorities called on March 6, 2003, explaining that Aufderhaar was involved in a juvenile matter in Montana and providing a current address for Aufderhaar. We agree with the court of appeals that "it is quite apparent that Aufderhaar was himself the catalyst for the State's renewed interest in him." Because the record shows that the waiver petition was filed in response to Aufderhaar's Montana actions and not in response to Aufderhaar turning seventeen, we conclude the delay was not an intentional attempt by the State to avoid the juvenile system, and therefore the State did not violate Aufderhaar's due process rights.

C. Personal Jurisdiction

¶ 12. Aufderhaar next argues that the circuit court does not have personal jurisdiction over him because the State and juvenile court failed to follow the statutory requirements for service of process in juvenile cases, which deprived the juvenile court of the personal jurisdiction required in order to validly waive Aufder-haar into adult court. Wisconsin Stat. § 938.27(3)(a) 1 requires the court to "notify, under s. 938.273, the juvenile, any parent, guardian and legal custodian of the juvenile ... of all hearings involving the juvenile under this subchapter, except hearings on motions for which notice need only be provided to the juvenile and his or her counsel." Further statutory requirements are found in Wis. Stat. § 938.273(1):

Service of summons or notice required by s. 938.27 may be made by mailing a copy thereof to the persons summoned or notified. If the persons, other than a person specified in s. 938.27(4m), fail to appear at the hearing or otherwise to acknowledge service, a continuance shall be granted, except where the court determines otherwise because the juvenile is in secure custody, and service shall be made personally by delivering to the persons a copy of the summons or notice; except that if the court is satisfied that it is impracticable to serve the summons or notice personally, it may make.an order providing for the service of the summons or notice by certified mail addressed to the last-known addresses of the persons. The court may refuse to grant a continuance when the juvenile is being held in secure custody, but in such a case the court shall order that service of notice of the next hearing be made personally or by certified mail to the last-known address of the person who failed to appear at the hearing. Personal service shall be made at least 72 hours before the time of the hearing. Mail shall be sent at least 7 days before the time of the hearing, except where the petition is filed under s. 938.13 and the person to be notified lives outside the state, in which case the mail shall be sent at least 14 days before the time of the hearing.

(Emphasis added.)

¶ 13. For our interpretation of these statutes, we rely on the criteria of statutory interpretation set out in State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110. In Kalal, we explained that our focus was to determine "statutory meaning." Id., ¶ 44. We explained that:

[judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute. We assume that the legislature's intent is expressed in the statutory language. Extrinsic evidence of legislative intent may become relevant to statutory interpretation in some circumstances, but is not the primary focus of inquiry. It is the enacted law, not the unenacted intent, that is binding on the public. Therefore, the purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect.

Id. As we have said many times, we begin with the language used in the statute and if that language is plain and clearly understood, we ordinarily stop our inquiry. See Seider v. O'Connell, 2000 WI 76, ¶¶ 44-53, 236 Wis. 2d 211, 612 N.W.2d 659. Context is also important when determining the plain meaning of a statute, as is the purpose of the statute and its scope, if those qualities can be ascertained from the language of the statute itself. Kalal, 271 Wis. 2d 633, ¶¶ 46-48. These are all intrinsic sources for statutory interpretation. Id.

¶ 14. However, if the meaning of the statute is not plain and the statute "is capable of being understood by reasonably well-informed persons in two or more senses," then the statute is ambiguous. Id., ¶ 47. When a statute is ambiguous, we often consult extrinsic, "interpretive resources outside the statutory text," such as legislative history. Id., ¶ 50.

¶ 15. The parties agree that Wis. Stat. § 938.27(3)(a) 1 plainly required service of a summons or notice on both Aufderhaar and his parents and that Wis. Stat. § 938.273(1) describes how that is to be accomplished. The State asks that we conclude that "personal jurisdiction attaches" when service is accomplished in a "statutorily authorized manner." The State takes this position in part based on our opinion in State v. Hezzie R., 219 Wis. 2d 848, 867, 580 N.W.2d 660 (1998), that juvenile court proceedings are not criminal proceedings, but rather, they often are hybrids with civil and criminal components. We agree with these contentions, as does Aufderhaar. Where the State and Aufderhaar fundamentally disagree is on two points: (1) whether the required service occurred; and (2) if, not, what is an appropriate remedy.

1. Service of summons

¶ 16. The State argues that personal jurisdiction in the juvenile court attached on October 31, 2001, when the Walworth County juvenile court clerk mailed the summons for appearance on the delinquency petition to Aufderhaar's Whitewater, Wisconsin address by regular mail, and it was not returned. This mailing occurred after the court had knowledge that Aufder-haar had moved to Montana. The State also asserts that a notice of hearing and waiver petition mailed to Rollins, Montana on March 14, 2003, was sufficient, as it was not returned. The State contends these mailings, either individually or collectively, satisfy Wis. Stat. § 938.27(3)(a) 1 and Wis. Stat. § 938.273(1). We disagree.

¶ 17. Wisconsin Stat. § 938.27(3)(a) 1 plainly requires notice "under s. 938.273" be given to the juvenile and "any parent." Wisconsin Stat. § 938.273(1) provides three ways in which statutorily sufficient notice may be provided: (1) by mailing a summons or notice for appearance in regard to the delinquency petition and the juvenile and any parent appear; (2) by personal service on the juvenile and any parent; or (3) if the court is satisfied that it is impracticable to serve the summons or notice personally, by certified mail addressed to the last known addresses of the persons to be served.

¶ 18. If the mailing of the summons that the State sent on October 31, 2001, had resulted in Aufderhaar and a parent's appearance, we would agree that personal jurisdiction attached with that mailing. However, no one appeared in response to the mailings. At that point, the State could have caused personal jurisdiction to attach by personal service or by convincing the court to order service by certified mail and then completing service by that mode.

¶ 19. The court of appeals was correct in stating, "It is undisputed that the juvenile court erred when, following Aufderhaar's nonappearance at his initial hearing to respond to the delinquency petition, it failed to comply with Wis. Stat. § 938.273." After Aufderhaar failed to appear at the initial hearing, § 938.273(1) required the juvenile court to grant a continuance and to order personal service or service via certified mail. The juvenile court did none of these things, but rather, it ordered a capias under Wis. Stat. § 938.28. This was insufficient to cause personal jurisdiction to attach.

¶ 20. The State also argues that proper notice was given to the Aufderhaars even though the juvenile court did not follow Wis. Stat. § 938.273(1). The State argues that the court of appeals erred in characterizing the various mailings as establishing constructive notice. The State contends that when the clerk's office mailed the summons and delinquency petition in October 2001 to the Aufderhaars' former address in Whitewater, an address "reasonably calculated to reach [Aufderhaar]," actual notice of the delinquency petition was established. Further, the circuit court stated that Aufderhaar "clearly receive [d] at least one of those two notices" sent in March 2003 regarding the waiver hearing.

¶ 21. To support this argument, the State points to cases such as State ex rel. Flores v. State, 183 Wis. 2d 587, 612, 516 N.W.2d 362 (1994), for the proposition that the "mailing of a letter creates a presumption that the letter was delivered and received." Under this rule, the State argues that because the proper documents had been mailed to various addresses and not returned, Aufderhaar had actual notice and therefore personal jurisdiction was obtained over him. The court of appeals agreed, citing to Flores as part of its rationale that the juvenile court had obtained personal jurisdiction.

¶ 22. The State's argument fails because whether Aufderhaar had constructive or actual notice is irrelevant. Personal jurisdiction in this case depends on compliance with the procedures set out in Wis. Stat. § 938.273(1). As we have already stated, after Aufder-haar failed to appear at the initial hearing, the statute requires the juvenile court to grant a continuance and order service to be made personally or via certified mail, yet the juvenile court did none of these things. We also note that Flores is not a service of process case, but rather, it concerns an evidentiary rule that the mailing of a letter creates a presumption that the letter was delivered and received. The provisions of § 938.273(1), rather than evidentiary rules, govern service and personal jurisdiction in juvenile cases.

¶ 23. The State makes an alternative argument that personal jurisdiction in the juvenile court attaches when the State files a delinquency petition. It points to Jermaine T.J., which was cited by the court of appeals in its decision affirming the circuit court's denial of Aufderhaar's motion to dismiss as supportive of this contention. In Jermaine T.J., the juvenile was in custody when the delinquency petition was filed. Jermaine T.J., 181 Wis. 2d at 85. A secure detention hearing was conducted and Jermaine was released to his parents the same day. Id. Delinquency and waiver petitions and a summons were sent by regular mail to Jermaine and his parents. Id. Jermaine failed to appear at the date set for the initial appearance on the delinquency and waiver petitions and the juvenile court issued a capias. Id. When Jermaine was taken into custody on an unrelated charge, he then made an initial appearance on the waiver and delinquency petitions on which he previously had failed to appear. Id. He did not contest the court's jurisdiction over him at that hearing. The court orally informed Jermaine of the date of the waiver hearing, but he failed to appear again and a second capias was issued. Id. at 86. After Jermaine was arrested again, the waiver hearing was held and Jermaine was waived into adult court. Id.

¶ 24. As in the present case, Jermaine moved to dismiss the case because the service statute was not followed, but the circuit court denied the motion and the court of appeals affirmed. The court of appeals stated "the juvenile court did not order that Jermaine be personally served; nor did it find that personal service would be ineffectual and order service by certified mail. Under the unambiguous terms of the statute, we conclude that this was error." Id. at 87. However, the court of appeals ultimately ruled that "[w]e do not agree that the error of the juvenile court mandates that this case be dismissed." Id. at 88. The court likened Jermaine's situation of being arrested pursuant to an improperly issued capias to that of an illegal arrest, and "[i]n Wisconsin, an illegal arrest is not a jurisdictional defect." Id. at 90 (citing State v. Smith, 131 Wis. 2d 220, 240, 388 N.W.2d 601 (1986)).

¶ 25. To support its argument that the provisions in Wis. Stat. § 938.273 need not be followed in order for the juvenile court to obtain personal jurisdiction, the State cites to the statement in Jermaine T.J. that "we conclude that it is the delinquency petition that is the critical procedure for acquiring personal jurisdiction over the juvenile." Id. at 91 (citing Smith, 131 Wis. 2d at 238-240). The State misconstrues the analyses in Jermaine T.J. and Smith.

¶ 26. First, Jermaine appeared in regard to the delinquency and waiver petitions without contesting jurisdiction. Aufderhaar did not. This is an important difference because it provided an alternative route for personal jurisdiction to attach. As the court of appeals explained, " '[The] physical .presence gives the juvenile court jurisdiction over the custody of the child.'" Jermaine T.J., 181 Wis. 2d at 89 (quoting State ex rel. La Follette v. Circuit Court, 37 Wis. 2d 329, 343, 155 N.W.2d 141 (1967)). We find no fault with this reasoning, as it supports our conclusion that while a delinquency petition is "critical" for acquiring personal jurisdiction, it is not, in itself, sufficient. Second, Jermaine T.J. did not address the question presented here because, as the court noted, personal jurisdiction was obtained by an alternate means, appearance.

¶ 27. Accordingly, we agree with Aufderhaar that unless the defect is waived by appearance, compliance with statutory provisions regarding service of process is required before a juvenile court has personal jurisdiction. Additionally, a juvenile's actual knowledge of the pendency of the action is not equivalent to service. See Hagen v. City of Milwaukee Employee's Ret. Sys. Annuity & Pension Bd., 2003 WI 56, ¶ 13, 262 Wis. 2d 113, 663 N.W.2d 268 (citing Heaston v. Austin, 47 Wis. 2d 67, 71, 176 N.W.2d 309 (1970)). Allowing the juvenile court to waive Aufderhaar into adult court, where the criminal penalties are more substantial, without its following the proper statutory procedure fails to "provide due process through which each juvenile offender and all other interested parties are assured fair hearings, during which constitutional and other legal rights are recognized and enforced," one of the stated purposes of the Juvenile Justice Code. Wis. Stat. § 938.01(2)(d).

¶ 2. Remedy

¶ 28. Because personal jurisdiction never attached, the juvenile court could not waive Aufderhaar into adult court. Therefore, the waiver order was ineffective, and we reverse the court of appeals decision affirming the circuit court's denial of Aufderhaar's motion to dismiss the criminal action in adult court. However, we do so without prejudice. Additionally, because the juvenile proceeding commenced before Aufderhaar turned seventeen years old, Wis. Stat. § 938.12(2); D.W.B. v. State, 158 Wis. 2d 398, 399, 462 N.W.2d 520 (1990) (juvenile court proceeding is commenced on the date the juvenile petition is filed), this proceeding should be returned to the point at which the jurisdictional defect occurred. Thereafter, the juvenile court can determine whether it will attempt service sufficient to satisfy Wis. Stat. § 938.273(1). If it does obtain sufficient service to accord personal jurisdiction over Aufderhaar, it may file yet another waiver petition to transfer the matter into adult court. Or in the alternative, the court may dismiss the delinquency petition. We leave that decision to the judgment of the juvenile court.

III. CONCLUSION

¶ 29. We conclude that the failure to follow the statutory requirements for service defeats the State's assertion of personal jurisdiction and requires the circuit court to dismiss the criminal charges without prejudice and the juvenile court to vacate the waiver order. We therefore reverse and remand.

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

       1n order to distinguish the types of actions in the circuit court, we refer to this court as the 'juvenile court."

       We refer to the circuit court to which waiver was ordered as the "adult court" or the circuit court.

       All subsequent references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Aufderhaar raised two other issues in his brief that were not raised in the petition. Aufderhaar alleged that the waiver petition was insufficient as a matter of law and that the delinquency petition should have been dismissed because it was not timely filed. The court of appeals declined to address these issues, stating, "The major holding here is that when this court accepts an interlocutory appeal, the appellant is limited to briefing only those issues presented in the petition for leave to appeal and may not raise additional issues without the prior consent of the court." State v. Aufderhaar, 2004 WI App 208, ¶ 1, 277 Wis. 2d 173, 689 N.W.2d 674.

       Alternatively, Aufderhaar argues we should abandon the test set out in State v. Montgomery, 148 Wis. 2d 593, 595, 436 N.W.2d 303 (1989). He favors a standard that would hold that egregiously negligent delay by the State can also violate due process rights. Aufderhaar fails to persuade us that the Montgomery decision is no longer good law; accordingly, we decline to overrule it.

       Although delinquency proceedings adjudicate juveniles alleged to have violated state or federal criminal law, see Wis. Stat. §§ 938.02, 938.12, Wisconsin courts have stated that "a juvenile delinquency proceeding is civil in nature," N.E. v. Wisconsin DHSS, 122 Wis. 2d 198, 209, 361 N.W.2d 693 (1985), and that" [generally, juvenile delinquency proceedings are not criminal proceedings." State v. Wolfe, 2001 WI App 136, ¶ 15, 246 Wis. 2d 233, 631 N.W.2d 240; see also State v. Hezzie R., 219 Wis. 2d 848, 867, 580 N.W.2d 660 (1998). We also note that Wis. Stat. § 938.35(1) states, "A judgment in a [juvenile delinquency] proceeding on a petition under this chapter is not a conviction of a crime." The United States Supreme Court has stated:
      [T]he juvenile court proceeding has not yet been held to be a "criminal prosecution," within the meaning and reach of the Sixth Amendment, and also has not yet been regarded as devoid of criminal aspects merely because it usually has been given the civil label.
      Little, indeed, is to be gained by any attempt simplistically to call the juvenile court proceeding either "civil" or "criminal." The Court carefully has avoided this wooden approach.

        McKeiver v. Pennsylvania, 403 U.S. 528, 541 (1971).

       On October 9, 2001, a notice of juvenile referral was sent to Aufderhaar and his parents in Hot Springs, Montana. This notice was returned undelivered.

       The State also argues that a juvenile's personal appearance is not required for the court to obtain personal jurisdiction. Because we conclude that the juvenile court failed to obtain personal jurisdiction through its failure to follow the requirements of Wis. Stat. § 938.27(3)(a)l and Wis. Stat. § 938.273(1), we need not resolve this issue.

       We do not decide whether the March 14, 2003 mailing of the petition to waive juvenile court jurisdiction would have been sufficient to cause personal jurisdiction to attach because no appearance resulted from that mailing. However, we do note that the waiver petition did not contain a description of the activities that allegedly caused the filing of a delinquency petition, the statute or statutes that the delinquency petition alleged Aufderhaar violated or a copy of the delinquency petition. Therefore, the waiver petition did not provide Aufderhaar with notice of the charges pending against him. Due process encompasses the right to be informed of "the nature and cause of the accusation." Holesome v. State, 40 Wis. 2d 95, 102, 161 N.W.2d 283 (1968).

       We note that the State has the burden to prove compliance with statutory service requirements, that is, to establish that the juvenile was properly served and is therefore subject to the court's jurisdiction. See Hagen v. City of Milwaukee Employee's Ret. Sys. Annuity & Pension Bd., 2003 WI 56, ¶ 12, 262 Wis. 2d 113, 663 N.W.2d 268.

       The statute at issue in State v. Jermaine T.J., 181 Wis. 2d 82, 510 N.W.2d 735 (Ct. App. 1993), was Wis. Stat. § 48.273, a predecessor of Wis. Stat. § 938.273, but the statutes contain identical requirements.

        See Gibson v. State, 47 Wis. 2d 810, 815, 177 N.W.2d 912 (1970) (concluding personal jurisdiction may be acquired by appearance).

       We have previously stated that "[fjailure to obtain personal jurisdiction over the defendant by statutorily proper service of process is a fundamental defect fatal to the action, regardless of prejudice." Hagen, 262 Wis. 2d 113, ¶ 13 (citing Am. Family Mut. Ins. Co. v. Royal Ins. Co., 167 Wis. 2d 524, 534-35, 481 N.W.2d 629 (1992).