                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2013AP1108-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Jesse J. Delebreau,
                                 Defendant-Appellant-Petitioner.


                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                          Reported at 352 Wis. 2d 647, 843 N.W.2d 441
                                  (Ct. App. 2014 – Published)
                                     PDC No: 2014 WI App 21

OPINION FILED:         June 16, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         November 5, 2014

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Brown
   JUDGE:              Thomas J. Walsh

JUSTICES:
   CONCURRED:          ROGGENSACK, C.J., concurs. (Opinion Filed.)
   DISSENTED:          ABRAHAMSON, BRADLEY, JJ. dissent. (Opinion
                       Filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by Stephen P. Hurley, Marcus J. Berghahn, and Hurley, Burish &
Stanton, S.C., Madison, and oral argument by Stephen P. Hurley.




       For the plaintiff-respondent, the cause was argued by Jacob
J. Wittwer, assistant attorney general, with whom on the briefs
was J.B. Van Hollen, attorney general.
                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.   2013AP1108-CR
(L.C. No.   2011CF453)

STATE OF WISCONSIN                               :            IN SUPREME COURT

State of Wisconsin,

            Plaintiff-Respondent,
                                                                         FILED
      v.
                                                                   JUN 16, 2015
Jesse J. Delebreau,
                                                                      Diane M. Fremgen
            Defendant-Appellant-Petitioner.                        Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.                     Affirmed.



      ¶1    DAVID T. PROSSER, J.         This is a review of a published
decision    of   the     court   of   appeals,       affirming      a    judgment      of
conviction in the Brown County Circuit Court, Mark A. Warpinski,
Judge.1     The case presents questions related to the right to
counsel for defendants who have been charged with a crime.
      ¶2    Jesse J. Delebreau (Delebreau) was convicted of one
count of delivering heroin (less than three grams), second or

      1
       State v. Delebreau, 2014 WI App 21, 352 Wis. 2d 647, 843
N.W.2d 441.
                                                                       No.       2013AP1108-CR



subsequent offense, as a repeater and as party to a crime.2                                The
circuit court entered a judgment of conviction following a jury
trial in which the State utilized statements Delebreau made to
investigators           while   he    was    incarcerated        at    the     Brown    County
Jail.           These    statements    were      made    after      the      charge    against
Delebreau had been filed and after Delebreau had appeared in
court with appointed counsel.
        ¶3       The focus of Delebreau's appeal is that the statements
he made to police after his initial appearance should have been
suppressed in accord with State v. Dagnall, 2000 WI 82, 236
Wis. 2d 339, 612 N.W.2d 680.                     In Dagnall, this court observed
that the Sixth Amendment right to counsel attaches when criminal

charges are filed.              Id., ¶52.        It then stated that, "[a]fter an
attorney         represents     the   defendant        on    particular        charges,    the
accused may not be questioned about the crimes charged in the
absence of an attorney."              Id., ¶53.
        ¶4       Since    Dagnall,       however,       the     legal        landscape     has
changed.          In 2009 the United States Supreme Court issued its
decision in Montejo v. Louisiana, 556 U.S. 778 (2009), holding
that        a   defendant's     waiver      of   his    or    her     Miranda3    rights    is
sufficient to waive the Sixth Amendment right to counsel, even
though Miranda rights are grounded in the Fifth Amendment.                                 Id.

        2
       Contrary to Wis. Stat. §§ 961.41(1)(d)1, 961.48(1)(b),
939.62(1)(b), and 939.05.    All subsequent references to the
Wisconsin Statutes are to the 2011-12 version unless otherwise
indicated.
        3
            Miranda v. Arizona, 384 U.S. 436 (1966).


                                                 2
                                                                       No.        2013AP1108-CR



at 786-87.           The Court further held that a defendant's waiver
need not be presumed invalid simply because the defendant is
represented         by    counsel.        Id.    at    789.      The       Court's       holding
overruled Michigan v. Jackson, 475 U.S. 625 (1986)——on which
Dagnall heavily relied——and seriously undercut our holding in
Dagnall.
        ¶5     Following        Montejo,        we     addressed           the    new        legal
landscape in State v. Forbush, 2011 WI 25, 332 Wis. 2d 620, 796
N.W.2d 741.          However, our decision in Forbush featured such a
marked       lack    of    consensus       among      the     justices       that       it    left
Wisconsin law somewhat unclear.                     Hence, we take this opportunity
to clarify the law on waiver of the right to counsel after a

defendant has been charged with a crime.
        ¶6     First,      we   reaffirm        the   position        of     a   majority       of
justices in Forbush that Montejo effectively overruled Dagnall
by establishing that a waiver of Miranda rights is sufficient to
waive    the      Sixth     Amendment      right      to    counsel    and       that    such    a
waiver is not presumed invalid simply because the defendant is
already      represented        by    counsel.         Second,    we       hold     that      that
Article      I,     Section     7    of   the   Wisconsin      Constitution          does      not
provide      greater       protections      than      the    Sixth     Amendment         of    the
United States Constitution in the context of a waiver of the
right to have counsel present during questioning.                                Accordingly,
we affirm the decision of the court of appeals.
                          I. FACTUAL AND PROCEDURAL HISTORY
        ¶7     The relevant facts are undisputed.                          This case stems
from the Brown County Drug Task Force's (the Task Force) use of
                                                3
                                                                     No.           2013AP1108-CR



a confidential informant to arrange for the purchase of drugs.
In    exchange    for    not    being     charged        with     possession          of     drug
paraphernalia,         B.J.     (the    informant)          agreed       to        act     as    a
confidential      informant      for    the       Task   Force.         On    February          21,
2011, the informant arranged a meeting with Christopher Woodliff
(Woodliff) to buy crack cocaine and heroin.                        The informant knew
Woodliff through prior drug deals between the two.                                   The Task
Force outfitted the informant with a surveillance wire and gave
him $200 to purchase drugs from Woodliff.
       ¶8     Once     inside     Woodliff's            home,     the      informant            saw
Woodliff, two other men, and a woman.                     The informant had not met
Delebreau before, but he identified him at trial as one of the

other men he saw inside Woodliff's home.                          The informant asked
Woodliff for two bags of crack cocaine and two bags of heroin.
He gave Woodliff the $200 provided by the Task Force.                                 Woodliff
returned $80, then asked Delebreau if he had "any bindles left."
Delebreau replied that he did, and the informant gave him the
remaining $80.
       ¶9     After the exchange of money, Woodliff and Delebreau
left    the    room.      When     they       returned,         Delebreau          handed       the
informant      two   baggies     of    what       the    informant      believed           to    be
heroin.       Woodliff provided the informant with the crack cocaine.
The    informant       stayed    inside       Woodliff's         home        for     about      45
minutes.
       ¶10    Once he left Woodliff's home, the informant met with
one of the investigators from the Task Force and turned over the
recording equipment along with the four baggies of drugs.                                       The
                                              4
                                                                    No.      2013AP1108-CR



two baggies of heroin were later weighed at the State Crime
Laboratory and found to have a combined weight of 0.013 grams.
     ¶11     Delebreau         was   taken    into      custody    on    March       31    on   a
probation hold.          He was held at the Brown County Jail.                       Sometime
between April 7 and April 9, Delebreau sent a note to jail
officials requesting to speak with a narcotics investigator in
the Task Force about his involvement.
     ¶12     On April 14, Delebreau was charged with the delivery
of heroin stemming from the February 21 transaction.                             That same
day, Delebreau made his initial appearance in court4 where he was
represented        by     Attorney      William         M.    Fitzgerald,        a        public
defender.5

     ¶13     The        next     day,       April       15,    Delebreau         met       with
investigator Roman Aronstein from the Task Force at the jail.
Aronstein later testified that he was the person who previously
referred     charges         related    to    Delebreau's         involvement         in     the
February 21 incident to the District Attorney's office but that
he was unaware of the status of those charges.                            Aronstein also
testified    that       at     the   time    of   the    meeting    he    believed          that
Delebreau was at the jail on a probation hold.                            Aronstein did
not check with the District Attorney's office about his criminal
referral and he did not ask Delebreau whether he had actually

     4
         Court Commissioner Lawrence L. Gazeley presided.
     5
       Shortly after Delebreau's initial appearance, it was found
that   Fitzgerald  had   a  conflict   of  interest   because  he
represented a co-defendant.    A new attorney was appointed to
represent Delebreau.


                                              5
                                                                         No.          2013AP1108-CR



been        charged.            Before     beginning       the       interview,         Aronstein
activated           the    audio/video         equipment        at    the     jail      and    read
Delebreau his Miranda rights.                     Delebreau waived his rights and
did not ask for counsel.                   In this interview, Delebreau admitted
to having sold drugs.6                    However, Delebreau could not remember
anything       about       the    February       incident       even    after        being    shown
video of the transaction.
        ¶14        Aronstein      returned       three    days       later     (April       18)   to
interview Delebreau a second time.                          Again, Aronstein did not
check        whether       charges       had   been      filed       against    Delebreau         or
whether       he     had    counsel.           Before     the    interview           took     place,
Aronstein turned on the audio/video equipment and read Delebreau

his Miranda rights.                Aronstein testified that Delebreau stated
during the interview that "he wasn't going to be able to beat
these charges" and that "he was going to end up going to prison
anyway so he might as well just cooperate with law enforcement."
Aronstein testified that he believed from this exchange that
Delebreau           had    no     intention       of     meeting       with     an      attorney.
Aronstein           had    prepared        a     statement       for     Delebreau,           which
Delebreau signed.               The statement acknowledged that Delebreau was
the person in the video and based on the transaction shown, he
must        have    been    the    one     who    sold     heroin       to     the    informant.
However, Delebreau claimed he had no memory of the incident.


        6
       Aronstein started the meeting by introducing himself and
Delebreau immediately said "he wished to resolve the matter at
hand and [knew] that he [was] guilty of something."


                                                  6
                                                                        No.        2013AP1108-CR



       ¶15     The       two     interviews         were     used       as      evidence        in
Delebreau's trial.              Before the trial, Brown County Circuit Judge
Mark   A.     Warpinski        denied     Delebreau's        motion      to     suppress       the
statements he made in the interviews.                             The court of appeals
denied       Delebreau's        petition      for     leave       to    appeal     the       order
denying the suppression motion because Delebreau failed to meet
the criteria for an interlocutory appeal.
       ¶16     At trial, a jury found Delebreau guilty of delivery of
heroin,       and     the      court    sentenced          him     to    eight      years       of
imprisonment consisting of four years of initial confinement and
four   years        of   extended       supervision.             The    court      of    appeals
affirmed       Delebreau's            conviction       and        the    denial         of     his

suppression motion, determining that Montejo controlled and that
Delebreau's         Miranda      waiver      was    thus    sufficient        to    waive      his
right to counsel.                State v. Delebreau, 2014 WI App 21, 352
Wis. 2d 647, ¶19, 843 N.W.2d 441.
       ¶17     Delebreau petitioned this court for review, which we
granted on May 22, 2014.
                                 II. STANDARD OF REVIEW
       ¶18     Whether Delebreau's right to counsel was violated is a
question      of     constitutional          fact.         When    reviewing        issues      of
constitutional fact, we undertake a two-step analysis.                                  State v.
Martwick,      2000       WI    5,    ¶17,    231    Wis. 2d 801,         604      N.W.2d 552.
First, we accept the circuit court's findings of evidentiary or
historical fact in a suppression matter unless they are clearly
erroneous.           Id.,      ¶18.     Second,      we     independently          review      the


                                               7
                                                                    No.     2013AP1108-CR



application of constitutional principles to the facts.                                 Id.,
¶17.
                                III. LEGAL BACKGROUND
       ¶19    We begin our analysis with a discussion of the legal
background surrounding the Sixth Amendment right to counsel.7
       ¶20    On   April     1,    1986,    the   United     States       Supreme   Court
issued its decision in Jackson.                   Jackson had been convicted of
second-degree murder based, in part, on a statement he made to
police     following      his     request   at    arraignment        that    counsel     be
appointed for him.           Jackson, 475 U.S. at 628.                Police had gone
to see Jackson after the arraignment, read Jackson his Miranda
rights, and upon waiver, elicited a statement from Jackson.                            Id.

       ¶21    The Court, in an opinion by Justice Stevens, held that
the statement should have been suppressed.                         Id. at 628-29.        It
relied heavily on Edwards v. Arizona, 451 U.S. 477 (1981), which
held that "an accused person in custody who has 'expressed his
desire to deal with the police only through counsel, is not
subject      to    further      interrogation       by     the     authorities      until
counsel      has   been    made    available       to    him,    unless     the   accused
himself       initiates         further      communication,           exchanges,         or
conversations       with     the    police.'"           Jackson,    475    U.S.   at    626
(quoting Edwards, 451 U.S. at 484-85).                    The Court reasoned that,
although Edwards was a Fifth Amendment case, its extension to

       7
       The Sixth Amendment to the United States Constitution
states, in pertinent part, "In all criminal prosecutions, the
accused shall enjoy the right . . . to have the assistance of
counsel for his defense." U.S. Const. amend. VI.


                                             8
                                                         No.     2013AP1108-CR



cover the Sixth Amendment was appropriate because "the reasons
for prohibiting the interrogation of an uncounseled prisoner who
has asked for the help of a lawyer are even stronger after he
has been formally charged with an offense than before."                 Id. at
631.
       ¶22   The Jackson decision was not unanimous.           Chief Justice
Burger concurred in the judgment on the basis of stare decisis,
but asserted that "plainly the subject calls for reexamination."
Jackson, 475 U.S. at 636-37 (Burger, C.J., concurring).                Justice
Rehnquist,     joined    by    two    justices,     vigorously    dissented,
contending that Edwards created a prophylactic rule to protect a
defendant's    Fifth    Amendment    privilege    against   compelled    self-

incrimination——not a rule to bar a defendant's waiver of his
Miranda rights merely because the defendant had requested the
appointment of counsel.        Jackson, 475 U.S. at 637-39 (Rehnquist,
J., dissenting).
       ¶23   In 2000 this court followed the Jackson majority in
Dagnall.      Dagnall    was   charged     with   first-degree   intentional
homicide in Wisconsin and was arrested for that charge on a
warrant in Florida.       Dagnall, 236 Wis. 2d 339, ¶5.          On the day
of his arrest, a Wisconsin attorney delivered a letter to the
authorities in Dane County stating that he represented Dagnall
and that the sheriff's department was not to interrogate Dagnall
about the homicide.        Id., ¶6.        Two officers, at least one of
whom was aware of the attorney's letter, traveled to Florida to
speak with Dagnall and return him to Wisconsin.             Id., ¶7.


                                       9
                                                                  No.         2013AP1108-CR



       ¶24   During     their       first      interview,        Dagnall       told    the
officers, "My lawyer told me that I shouldn't talk to you guys."
Id.,   ¶9.     The    officers       read   Dagnall      his    Miranda       rights   and
Dagnall agreed to talk up to the point he thought he might
incriminate    himself.         Id.,    ¶¶10-11.          The    following       day   the
officers conducted a second interview after they read Dagnall
his Miranda rights and Dagnall agreed to waive them.                            Id., ¶12.
One of the officers, Detective Kevin Hughes, talked to Dagnall
two more times after returning him to Wisconsin.                          Id., ¶13-14.
The last time, Dagnall asked if his attorney knew he was back in
Wisconsin;    the     detective      said    he    didn't      know     and    ended   the
interrogation.        Id.

       ¶25   We held that Dagnall did not need to invoke his right
to counsel because he was formally charged with a crime and
represented by counsel.             Id., ¶4.      The officers knew Dagnall was
represented by counsel and therefore did not have the authority
to question Dagnall about the crime.                     Id., ¶¶62, 64.           We also
held that the Sixth Amendment right to counsel attaches at the
initiation of charges, and that the accused invokes the Sixth
Amendment right to counsel either by retaining counsel or by
having counsel appointed.              Id., ¶¶52, 60.             We explained that
authorities     may     not   "knowingly          exploit       the   opportunity       to
confront the accused without accused's counsel being present."
Id., ¶51 (citing Maine v. Moulton, 474 U.S. 159, 176 (1985)).
       ¶26   As in the Supreme Court, there was a vigorous dissent.
Justice      Crooks     argued        against      a     total        prohibition       on
interrogations        after     a    defendant      is    formally        charged      and
                                            10
                                                                 No.        2013AP1108-CR



represented by counsel.             Dagnall, 236 Wis. 2d 339, ¶68 (Crooks,
J., dissenting).

        Such a bright line rule means that law enforcement
        officials may not even question a person . . . once
        charges are filed and the person has an attorney.
        According to the majority, it makes no difference that
        such an individual is given Miranda warnings, waives
        his or her Fifth and Sixth Amendment rights, and
        agrees to talk to police officers about the crime
        charged.
Id., ¶69.
        ¶27    Nine years after Dagnall, the United States Supreme
Court    reversed       course     in   Montejo.       Montejo      was    arrested      in

connection with a robbery and murder.                       He waived his Miranda
rights,       and    after    police    interrogated     him     for      two   days,    he
confessed to the murder.                Montejo, 556 U.S. at 781.                 Later,
Montejo was brought before a judge for Louisiana's equivalent of
a preliminary hearing.             He was charged with the crime, and the
court ordered appointment of counsel.                 Id.
        ¶28    Following the hearing, two police detectives visited
Montejo and asked him to take them to where he had disposed of

the murder weapon.            Id. at 781-82.         The detectives read Montejo
his Miranda rights and he agreed to go on the trip.                         Id. at 782.
During    the       trip,    Montejo    penned   a   letter    of    apology      to    the
victim's widow.              Id.   After the trip, Montejo met with his

attorney for the first time.              Id.    The letter he had written was
admitted into evidence at trial, and Montejo was convicted.                            Id.
        ¶29    In reviewing the case, the Court overruled Jackson and
its presumption that waivers of the right to counsel are invalid


                                           11
                                                                        No.        2013AP1108-CR



when given after defendants assert their right to counsel.                                   The
Court    also        clarified    that     all       defendants      have     the    right     to
counsel        during     critical        stages       of      the     criminal       process,
including        interrogations,          so    that     a     valid    waiver       of     Sixth
Amendment rights must be knowing, intelligent, and voluntary.
Id.     at     786.       However,       the    Court        held    that     a    represented
defendant may waive the Sixth Amendment right to counsel after
receiving       proper     Miranda       warnings      without       consulting       counsel.
Id.
        ¶30     We addressed this development in Forbush in 2011.                             The
State    charged        Forbush    with        second-degree         sexual       assault     and
false imprisonment.              Forbush, 332 Wis. 2d 620, ¶3.                     Forbush was

arrested in Michigan and made a court appearance there in which
he was represented by his brother, a lawyer.                            Id., ¶6.          He was
subsequently returned to Wisconsin where the Sheboygan County
District Attorney's office and a detective with Sheboygan County
Sheriff's        Department        had     been       notified         that       Forbush     was
represented by counsel.              Id., ¶3.
        ¶31     Before his first court appearance in Sheboygan County,
Forbush        was     approached        by      a    different         Sheboygan         County
detective.        The detective began by reading the Miranda rights to
Forbush and then asked whether Forbush would be willing to waive
his right to counsel.              Id., ¶4.           Forbush waived his rights and
began         answering      questions.                Immediately          following        the
questioning, Forbush was taken to his initial appearance where
he was represented by local counsel as well as his brother.
Id., ¶5.
                                                12
                                                                        No.        2013AP1108-CR



        ¶32   Before trial, Forbush moved to suppress the statements
and the circuit court granted the motion.                         Id., ¶7.         The circuit
court       found    that        authorities         had    violated     Forbush's         Sixth
Amendment rights because they knew he was already represented by
counsel at the time of questioning.                        Id.
        ¶33   The court of appeals reversed,8 noting that Montejo had
overturned Jackson, and "held that the Sixth Amendment does not
prevent       police           from     questioning         charged     and        represented
defendants."         Id., ¶8.         The court of appeals determined that the
circuit       court       based       its     decision       on   Dagnall,         which    was
effectively overruled by Montejo.                     Id.
        ¶34   We    reversed          the    court    of     appeals    in     a    case   that

produced five separate opinions.                      The lead opinion, authored by
Justice Roggensack, narrowly interpreted Montejo as removing the
presumption         of     a    Sixth       Amendment       violation    for       represented
defendants in cases where it is unclear whether they invoked
their right to counsel.                     Id., ¶51.        Chief Justice Abrahamson,
joined by Justice Bradley, conceded that Montejo superseded the
state's previous interpretation of the Sixth Amendment right to
counsel in Dagnall.               Forbush, 332 Wis. 2d 620, ¶64 (Abrahamson,
C.J., concurring).                However, the Chief Justice contended that
the right to counsel under the Wisconsin Constitution is more
robust than the right under the Sixth Amendment of the U.S.
Constitution.            Id., ¶71.

        8
       State v. Forbush, 2010 WI App 11, 323 Wis. 2d 258, 779
N.W.2d 476.


                                                13
                                                                     No.            2013AP1108-CR



          ¶35    A third opinion noted that Montejo was not in effect
at    the        time     of    Forbush's     interrogation         by        the     Sheboygan
detective.            Id., ¶103 (Prosser, J., concurring).                     Thus, Dagnall
constituted the law of Wisconsin for law enforcement at that
time.       Id., ¶88.           Under Dagnall, Forbush would not need to re-
invoke          his     Sixth     Amendment   right       because        he     was     already
represented by counsel.                Id., ¶92.      However, the third opinion
observed that Montejo "is unquestionably the current controlling
law on the subject of the Sixth Amendment right to counsel."
Id., ¶116.
          ¶36    In dissent, Justice Crooks, joined by Justices Ziegler
and Gableman, contended that Montejo overruled Dagnall and that

a defendant's knowing, intelligent and voluntary waiver of the
right to counsel could be achieved through the Miranda warnings.
Id., ¶¶152-53 (Crooks, J., dissenting).                      In a separate dissent,
Justice Ziegler, joined by Justice Gableman, reasoned that even
though Dagnall articulated a sound, fair, and workable standard,
Montejo overruled Dagnall because Dagnall was grounded in the
Sixth Amendment of the U.S. Constitution, not Article I, Section
7    of    the        Wisconsin    Constitution.          Id.,    ¶157        (Ziegler,      J.,
dissenting).
          ¶37    The common thread throughout this evolution of Sixth
Amendment case law is the need to balance police flexibility in
investigating            criminal     activity     with    the    fundamentally             fair
treatment         of     criminal     defendants.         Cases     like        Jackson      and
Dagnall noted the special role of counsel after a suspect has
been charged and formally become a criminal defendant.                                     E.g.,
                                              14
                                                                 No.       2013AP1108-CR



Jackson,    475    U.S.    at     632    (acknowledging    criminal        defendants'
"right to rely on counsel as a 'medium' between [them] and the
State" after they are charged) (citation omitted); Dagnall, 236
Wis. 2d 339,      ¶36.       These       cases   equated   the     request     for    or
appointment       of   counsel      as    the    equivalent   of       a   defendant's
invocation of the right to counsel.
     ¶38    Contrary holdings have not been grounded in the idea
that the role of counsel after the initiation of charges is
somehow not important or even critical.                    Rather, the concerns
were more practical and recognized a defendant's authority to
knowingly, intelligently, and voluntarily waive his rights.                          For
example, one dissent in Dagnall offered the hypothetical of a
criminal defendant who "is given Miranda warnings, waives his or
her Fifth and Sixth Amendment rights, and agrees to talk to
police     officers       about    the     crime    charged."          Dagnall,      236
Wis. 2d 339, ¶69 (Crooks, J., dissenting).                    A bright line rule
prohibits the officers from speaking with such a defendant, thus
frustrating their investigatory role, even though the defendant
willingly consents to talk.9
     9
         As Chief Justice Burger put it:

          The   urge   for   "bright-line"   rules   readily
     applicable to a host of varying situations would
     likely relieve this Court somewhat from more than a
     doubling of the Court's work in recent decades, but
     this urge seems to be leading the Court to an
     absolutist, mechanical treatment of the subject.     At
     times, it seems, the judicial mind is in conflict with
     what   behavioral——and  theological——specialists   have
     long recognized as a natural human urge of people to
     confess wrongdoing.
                                                      (continued)
                                           15
                                                                   No.      2013AP1108-CR



        ¶39    Practical      concerns       also    underpinned          the      Court's
decision in Montejo.            There, the Court observed that a vast
number of criminal defendants are indigent, and different states
treat counsel appointments for indigent defendants in different
ways.     Montejo, 556 U.S. at 784-85.                Some states automatically
appoint counsel for indigent defendants, while others require
indigent defendants to request counsel.                 Id.    This difference in
practice makes a bright line rule unworkable, in part because
"[p]olice who did not attend the [preliminary] hearing would
have no way to know whether they could approach a particular
defendant; and for a court to adjudicate that question ex post
would     be    a    fact-intensive        and      burdensome       task,        even    if

monitoring were possible and transcription available."                              Id. at
785.
        ¶40    Keeping   in   mind    that      courts——including         this     court——
have sought to strike a balance between these considerations, we
turn to the current state of the law.
                                    IV. DISCUSSION
                     A. Sixth Amendment Right to Counsel
        ¶41    We   first   examine    whether       Delebreau's         waiver    of     his
Miranda rights was sufficient to waive his Sixth Amendment right
to counsel, as well as whether we should presume that his waiver
was     invalid     because    he    was     represented      by    counsel.             This
requires us to determine what law controls.

Michigan v. Jackson, 475 U.S. 625, 636-37 (1986) (Burger, C.J.,
concurring).


                                           16
                                                                     No.         2013AP1108-CR



      ¶42    Our    holding       in    Dagnall      was    grounded       in     the   Sixth
Amendment; the only issue we considered was "whether Dagnall
properly      invoked       the    Sixth          Amendment    right       to      counsel."
Dagnall, 236 Wis. 2d 339, ¶3 (emphasis added).                        Accordingly, our
analysis relied extensively on United States Supreme Court case
law.10     We did not discuss the Wisconsin Constitution.
      ¶43    The United States Supreme Court, however, has final
authority over questions of federal constitutional law.                                   Its
interpretation of the Sixth Amendment supersedes our own.11                               The
question is therefore whether the Court superseded our holding
in    Dagnall      with    its     decision         in     Montejo    and       effectively
overruled the Dagnall decision.

      ¶44    The answer, quite simply, is "yes."
      ¶45    Montejo was decided on May 26, 2009.                          The published
decision of the court of appeals in State v. Forbush, 2010 WI
App   11,    323    Wis. 2d 258,            779    N.W.2d 476,       was    released       on
December     29,    2009,    and       it   said     that     Montejo      had     overruled
Dagnall, and that Forbush's waiver of his right to counsel was
therefore valid.          This court's decision in Forbush did not come



      10
       E.g., McNeil v. Wisconsin, 501 U.S. 171 (1991); Patterson
v. Illinois, 487 U.S. 285 (1988); Jackson, 475 U.S. 625; Maine
v. Moulton, 474 U.S. 159 (1985); Edwards v. Arizona, 451 U.S.
477 (1981); Kirby v. Illinois, 406 U.S. 682 (1972).
      11
       "[T]he Supremacy Clause of the United States Constitution
compels adherence to United States Supreme Court precedent on
matters of federal law . . . ." State v. Jennings, 2002 WI 44,
¶3, 252 Wis. 2d 228, 647 N.W.2d 142.


                                              17
                                                                           No.      2013AP1108-CR



until after the relevant questioning in this case.12                                 Thus, our
decision in Forbush did not control the operative facts here.
In any event, a careful reading of the court's five opinions in
Forbush           would     have    provided        very      little       encouragement       to
Delebreau.
        ¶46       In Forbush, every member of this court agreed that
Montejo had an effect on Dagnall.                         Five concluded that Montejo
effectively overruled Dagnall.                         See Forbush, 332 Wis. 2d 620,
¶¶64,        81     (Abrahamson,          C.J.,     concurring);           Id.,    ¶¶137,     155
(Crooks,          J.,     dissenting).        One      stated       that    the    decision    in
Montejo           "undercut        many     of      the       major        underpinnings       of
Dagnall . . . ."             Id., ¶96 (Prosser, J., concurring).                       Finally,

the   lead         opinion    "agree[d]       with      the    State       that    Montejo    did
modify Dagnall such that there is no presumption of a Sixth
Amendment violation due to police interrogation of a represented
defendant when the 'certain circumstances' of defendant match
those of defendant-Montejo."                  Id., ¶51 (lead opinion).
        ¶47       The      upshot    of      Forbush          was     that        "Montejo     is
unquestionably the current controlling law on the subject of the
Sixth        Amendment      right    to    counsel."          Id.,     ¶116      (Prosser,    J.,
concurring).
        ¶48       The Supreme Court's holding in Montejo is clear that a
defendant is sufficiently apprised of his or her Sixth Amendment

        12
       Our decision in Forbush was released on April 29, 2011.
State v. Forbush, 2011 WI 25, 332 Wis. 2d 620, 769 N.W.2d 741.
The relevant questioning in this case took place on April 15 and
April 18, 2011.


                                                  18
                                                                         No.         2013AP1108-CR



right        to    counsel     by   the   Miranda       warnings,     and       that       a   valid
Miranda waiver effectively waives the Sixth Amendment right to
counsel           as   well    as   the    Fifth       Amendment    right           to    counsel.
Montejo, 556 U.S. at 786-87.                     Defendants are not entitled to a
presumption            that   their     waiver    of    the   presence         of    counsel      is
invalid, even if they are already represented by counsel.                                        Id.
at 789-90.
        ¶49        Given the above, the first of Delebreau's arguments——
that     his       Sixth      Amendment    right       to   counsel      was        violated——is
easily resolved.               Delebreau makes no attempt to argue that his
Miranda waiver was invalid.                    Rather, he argues that the Miranda
waiver was insufficient to waive his Sixth Amendment right to

counsel.           The United States Supreme Court disagrees.                            Therefore,
we hold that Delebreau's Sixth Amendment right to counsel was
not violated.13
                                B. Wisconsin Constitution
        ¶50        Our inquiry does not end with the Sixth Amendment.
Delebreau also argues that his questioning violated his right to
counsel           under       Article     I,     Section      7     of         the       Wisconsin

        13
       Delebreau also contends that his appearance in court with
an attorney was sufficient to invoke his right to counsel, such
that police could not even approach him and request that he
waive his right.    However, he later concedes that "the rule
adopted by [Montejo v. Louisiana, 556 U.S. 778 (2009)] allows
police to interrogate a defendant after he has appeared in court
with counsel and requires the defendant to assert his right to
counsel in every contact with police."   Therefore, it is of no
consequence that Delebreau's request to speak with police came
before his appearance in court with an attorney and that police
questioned him after that appearance.


                                                 19
                                                                              No.           2013AP1108-CR



Constitution.           To     determine             if    he     is    correct,       we    first       ask
whether the Wisconsin Constitution provides the same post-charge
right-to-counsel protections as the Sixth Amendment.                                              If our
constitution           provides              greater       protections           than       the        Sixth
Amendment,       we     would           be     confronted          with     whether         Delebreau's
statements should have been suppressed under Article I, Section
7.
        ¶51    It is well understood that a state's constitution may
provide criminal defendants with rights beyond those afforded by
the United States Constitution.                            However, as a general rule, we
have    expanded       the     Wisconsin             Constitution's          protections           beyond
the    scope     of    the     federal            constitution           "only    in    cases          where

either the state constitution or 'the laws of this state require
that    greater        protection              of    the        citizens'     liberties . . . be
afforded.'"            State        v.        Agnello,          226     Wis. 2d 164,          180,      593
N.W.2d 427 (1999) (quoting State v. Doe, 78 Wis. 2d 161, 172,
254     N.W.2d 210          (1977)).                "Where . . . the             language         of     the
provision in the state constitution is 'virtually identical' to
that of the federal provision or where no difference in intent
is    discernible,          Wisconsin             courts        have    normally    construed            the
state    constitution          consistent                with     the    United     States        Supreme
Court's construction of the federal constitution."                                      Id. at 180-
81     (citing        State        v.        Tompkins,          144     Wis. 2d 116,         133,        423
N.W.2d 823 (1988)).
        ¶52    Article        I,    Section          7     of    the    Wisconsin       Constitution
provides, "In all criminal prosecutions the accused shall enjoy
the    right     to    be     heard          by     himself       and    counsel . . . ."                Its
                                                      20
                                                                          No.      2013AP1108-CR



federal analogue in the Sixth Amendment states, "In all criminal
prosecutions, the accused shall enjoy the right . . . to have
the   assistance         of     counsel       for    his     defense."             We    see     no
discernible       difference          between       these    two     provisions          as    they
relate to the right to counsel.                         Nothing suggests that "the
right to be heard by . . . counsel" should be any more expansive
than "the right . . . to have the assistance of counsel . . . ."
      ¶53    Delebreau holds up State v. Bevel, 745 S.E.2d 237 (W.
Va. 2013), and State v. Lawson, 297 P.3d 1164 (Kan. 2013), as
possible avenues for finding greater rights under the Wisconsin
Constitution.          In Lawson, the Supreme Court of Kansas held that
a Kansas statute provided greater protections than the Sixth

Amendment.       Id. at 1173-74.              Wisconsin does not have a similar
statute, so Lawson does not advance Delebreau's argument.                                        In
Bevel, the West Virginia Supreme Court of Appeals held that West
Virginia's       own    constitution          provided      greater        protections         than
those afforded by the Sixth Amendment under Montejo despite a
history     of    interpreting          the     right       under        the    West     Virginia
Constitution       as       consistent        with    the     right        under       the    Sixth
Amendment.       Bevel, 745 S.E.2d at 247.                   While this is similar to
the   situation        in     Wisconsin,      the    holding        in    West     Virginia      is
inconsistent           with     our     precedent           regarding           constitutional
interpretation.             In any event, the question is not whether a
state may offer greater protections than those in Montejo but
whether Wisconsin does.
      ¶54    As the State notes, the various opinions in Forbush
indicate that a majority of the court held that the Wisconsin
                                               21
                                                                     No.         2013AP1108-CR



Constitution and the United States Constitution provide the same
protections in this context.                  We need not dissect the opinions
in   Forbush       to    say    that     that       holding     is     consistent         with
precedent.
     ¶55     In State v. Klessig, we said:

     A criminal defendant in Wisconsin is guaranteed this
     fundamental right to the assistance of counsel for his
     defense by both Article I, § 7 of the Wisconsin
     Constitution and the Sixth Amendment of the United
     States Constitution . . . .    The scope, extent, and,
     thus, interpretation of the right to the assistance of
     counsel is identical under the Wisconsin Constitution
     and the United States Constitution.
State v. Klessig, 211 Wis. 2d 194, 201-03, 465 N.W.2d 716 (1997)

(footnotes      omitted)       (citations       omitted).        See       also    State    v.
Sanchez,     201    Wis. 2d 219,         226,       548   N.W.2d 69         (1996)      ("The
language   of      the    Wisconsin      provision,       on    its    face,       does    not
appear     to      differ        so     substantially           from        the      federal
Constitution's guarantee of the right to counsel so as to create
a different right.").
     ¶56     Delebreau         touts    the        importance    of        the    right    to

counsel,   but     does    not    explain       how    the    United       States    Supreme
Court's interpretation of the right under the Sixth Amendment
fails to protect it.            We see no reason to deviate from our prior
practice of interpreting the Wisconsin Constitution's right to
counsel    as      coextensive         with    the     right    under        the     federal
constitution.
     ¶57     Accordingly, because we hold that Delebreau's right to
counsel was not violated under the Sixth Amendment, we also hold


                                              22
                                                                  No.        2013AP1108-CR



that his right to counsel was not violated under Article I,
Section 7 of the Wisconsin Constitution.
                            C. Other Considerations
        ¶58     Before   concluding,    we        pause   briefly       to   note    that
today's ruling should not be viewed as a sea change in the law.
As the United States Supreme Court explained, the Jackson rule
(and consequently, our rule in Dagnall) was a fourth layer of
prophylaxis deemed unnecessary by the Supreme Court because of
other        protections——undisturbed        by    Montejo——already           in    place.
See Montejo, 556 U.S. at 793-95.                    "Under the Miranda-Edwards-
Minnick line of cases (which is not in doubt), a defendant who
does not want to speak to the police without counsel present

need only say as much when he is first approached and given the
Miranda warnings."14        Id. at 794.
        ¶59     Police still may not badger defendants into waiving
their right to counsel.            See Patterson v. Illinois, 487 U.S.
285, 292 n.4 (1988).             Police still must cease questioning of
criminal defendants when these defendants invoke their right to
counsel.         See Edwards, 451 U.S. at 484.                After a defendant
invokes       the   right   to   counsel,     police      still     may      not    resume
questioning until counsel is present or 14 days have passed.
See Maryland v. Shatzer, 559 U.S. 98, 110 (2010); Minnick v.
Mississippi, 498 U.S. 146, 153 (1990).




        14
             Minnick v. Mississippi, 498 U.S. 146 (1990).


                                        23
                                                            No.        2013AP1108-CR



      ¶60   Our    holding      merely   clarifies   that    a     valid    Miranda
waiver is sufficient for a criminal defendant to waive the right
to have counsel present during questioning, and that courts need
not   presume      any    waiver    is   involuntary      simply      because    the
defendant is already represented by counsel.
                                   V. CONCLUSION
      ¶61   First,       we   reaffirm   the   position    of     a   majority    of
justices in Forbush that Montejo effectively overruled Dagnall
in establishing that a waiver of Miranda rights is sufficient to
waive the Sixth Amendment right to counsel, and that such a
waiver is not presumed invalid merely because the defendant is
already represented by counsel.            Second, we hold that Article I,

Section 7 of the Wisconsin Constitution does not provide greater
protections       than    the   Sixth    Amendment   of    the     United    States
Constitution in the context of a waiver of the right to have
counsel present during questioning.             Accordingly, we affirm the
decision of the court of appeals.
      ¶62   By the Court.—The decision of the court of appeals is
affirmed.




                                         24
                                                                   No.   2013AP1108-CR.pdr




        ¶63    PATIENCE    DRAKE   ROGGENSACK,       C.J.          (concurring).        I
write in concurrence because I conclude that Jesse Delebreau's
constitutional right to counsel was not violated by Detective
Roman       Aronstein's    interviews    on       April       15     and    18   because
Delebreau initiated contact with law enforcement and was given
Miranda1 warnings before each interview.                      In addition, I agree
that the right to counsel under Article I, Section 7 of the
Wisconsin Constitution provides the same protections as does the

right to counsel under the Sixth Amendment of the United States
Constitution.2       State v. Forbush, 2011 WI 25, ¶15, 332 Wis. 2d
620, 796 N.W.2d 741; State v. Sanchez, 201 Wis. 2d 219, 226, 548
N.W.2d 69 (1996).
        ¶64    I   write   separately    because          I    conclude       that    the
majority opinion overstates the United States Supreme Court's
holdings in Montejo v. Louisiana, 556 U.S. 778 (2009).                           Montejo
directs that a defendant who has been charged with a crime must

take affirmative action in order to invoke his or her Sixth
Amendment right to counsel, and that without an invocation by
the    defendant,     no   violation    of    a    defendant's           constitutional
right to counsel occurs when a defendant is questioned.                           Id. at
797.

        1
            Miranda v. Arizona, 384 U.S. 436 (1966).
        2
       Because I write in concurrence and because this is not a
new conclusion, I do not further detail that the Sixth Amendment
of the United States Constitution and Article I, Section 7 of
the Wisconsin Constitution provide the same protections to a
defendant who has been charged with criminal conduct.


                                        1
                                                                            No.    2013AP1108-CR.pdr


                                       I.    BACKGROUND
        ¶65    On    March     31,    2011,        Jesse       Delebreau          was    taken      into
custody on a probation hold.                     Shortly thereafter, he gave a jail
employee       a    written     request       to       speak    with    a    drug        enforcement
officer.
        ¶66    On    April     14,    Delebreau          was    charged       with       a     sale      of
heroin; he appeared via video-conferencing from the jail on that
charge.            Attorney     William          Fitzgerald,       of       the        State       Public
Defenders Office, also appeared.                         However, Attorney Fitzgerald

was    uncertain       whether       he     could       represent       Delebreau            due    to    a
potential conflict of interest.
        ¶67    On April 15, Detective Aronstein, a member of the Drug
Task    Force,        met     with    Delebreau          in     response          to     Delebreau's
written request.              Aronstein met with Delebreau again on April
18.     Aronstein gave Delebreau Miranda warnings before the start

of each interview.               In response to those warnings, Delebreau
affirmatively waived his right to counsel.

        ¶68    Delebreau       made        incriminating         statements             during       both
interviews.          He also signed a written statement admitting that
he     sold        heroin,     based        on     his        self-identification                  as     a
participant in a video of the drug sale.
        ¶69    On    April     27,     a    rescheduled          initial          appearance            was
held.         Delebreau and Attorney Peter Kraft appeared in court,
whereupon the court noted, "He's making an appearance for the
first time with the attorney that will be representing him as




                                                   2
                                                              No.   2013AP1108-CR.pdr


this case goes forward."3             However, again, the record does not
establish       whether     Delebreau    took   any   affirmative        steps   that
caused Attorney Kraft or any other attorney to appear on his
behalf on the pending drug charges.
        ¶70    Prior   to    trial,     Delebreau     moved    to    suppress     his
statements, claiming Aronstein's interviews violated his Sixth
Amendment      right   to    counsel.      At   the   hearing       on   Delebreau's
motion, Attorney Fitzgerald testified that as an attorney for
the Public Defenders Office, he would have received notice when

"probation and parole indicates that they're going to commence
revocation proceedings, and a person from our office goes there
to see if those people want to be interviewed for eligibility
determination."           At this point Attorney Wendy Lemkuil of the
Brown       County   District   Attorney's      Office     interrupted     Attorney
Leonard Kachinsky's questioning of Attorney Fitzgerald to offer
a stipulation.
        ¶71    After      accepting     the     proposed      stipulation        that

established April 14 as the date on which formal charges were
filed, Attorney Kachinsky said, "Perhaps there [are] a few more
questions as to Mr. Delebreau actually requesting counsel I need
to ask."        Attorney Kachinsky then asked, "When you interviewed
Mr. Delebreau, do the records of your office indicate whether or
not he requested the services of the State Public Defender to
represent him on criminal charges?"                 Attorney Lemkuil objected

        3
       The record reflects that on May 5, 2011, Delebreau and
Attorney Genelle Johnson appeared. A waiver of the preliminary
hearing was made and accepted.


                                          3
                                                                   No.    2013AP1108-CR.pdr


on    relevancy    grounds,      to       which    objection    Attorney          Kachinsky
explained, "I think the issue is whether or not he requested
counsel as opposed to the State Public Defender just jumping
in."    Attorney Kachinsky accurately perceived the Montejo issue.
       ¶72   Unfortunately, Attorney Kachinsky's question was never
answered     and   consequently,           the    record    does     not    conclusively
establish whether Delebreau took affirmative action to invoke
his right to counsel and the date or dates on which any such
action may have taken place.

       ¶73   The    circuit      court      denied    the    motion        to     suppress.
Delebreau was convicted by a jury that was presented with his
statements to Aronstein.
                                    II.    DISCUSSION
                            A.      Standard of Review
       ¶74   Whether a defendant who has been charged with a crime
has invoked his or her right to counsel is a two-part question.
Forbush, 332 Wis. 2d 620, ¶10.                    "We uphold the circuit court's

findings     of    historical       or     evidentiary      fact     unless       they   are
clearly erroneous."           Id.        In addition, we independently review
the    application     of   constitutional          principles       to     facts    found.
Id.
       ¶75   Whether    a   defendant        has    waived     his       Sixth    Amendment
right to counsel by initiating contact with law enforcement is
also a question of law for our independent review.                               Edwards v.
Arizona, 451 U.S. 477, 484-85 (1981).




                                             4
                                                                      No.     2013AP1108-CR.pdr


                                  B.    Right to Counsel
                              1.       General principles
      ¶76     A defendant's Sixth Amendment right to counsel arises
when he or she is charged with a crime.                            Patterson v. Illinois,
487 U.S. 285, 290 (1988) (explaining that "[t]here can be no
doubt that petitioner had the right to have the assistance of
counsel at his postindictment interviews with law enforcement").
Under United States Supreme Court precedent, once charges are
filed, the "Sixth Amendment guarantees a defendant the right to

have counsel present at all 'critical' stages of the criminal
proceedings."        Montejo, 556 U.S. at 786.

      ¶77     However,      the     Sixth    Amendment         right    must          be    invoked
before its protections will be afforded.                           Id. at 789 (reasoning
that "a defendant who never asked for counsel has not yet made
up    his    mind    in     the     first    instance").               Once       a    defendant
affirmatively        invokes       his    right       to     counsel,       law       enforcement
cannot      badger   him     into      waiving        that    right.         Id.       at    794-95

(explaining that a defendant who invokes his right to counsel is
protected because "[a]t that point, not only must the immediate
contact end, but 'badgering' by later requests is prohibited.").
      ¶78     The right to counsel under the Sixth Amendment can be
waived, just as the Fifth Amendment right can.                                    Id. at 786.
Therefore, when a defendant has been given Miranda warnings,
which advise as to the right to counsel and the consequences of
proceeding in the absence of counsel and the defendant chooses
to answer questions, Miranda warnings are sufficient to provide
the   foundation      for    waivers        of       both    the    Fifth    and       the    Sixth

                                                 5
                                                                       No.    2013AP1108-CR.pdr


Amendments rights to counsel.                    Id.; Patterson, 487 U.S. at 296.
The right to counsel also can be waived before or after its
invocation          by   a    defendant         who   initiates        contact        with    law
enforcement and volunteers a statement.                          State v. Kramar, 149
Wis. 2d 767, 785-86, 440 N.W.2d 317 (1989).
                                     2.    Delebreau's rights
        ¶79    At the time Delebreau spoke to Aronstein, the record
does not reflect whether Delebreau had affirmatively invoked his
Sixth Amendment right to counsel.                      Attorney Kachinsky recognized

that although the Sixth Amendment right to counsel attaches when
criminal       charges       are     filed,      Delebreau       nevertheless          had     the
obligation          to   invoke          that    right        before     Sixth        Amendment
protections would be afforded to him.                         Montejo, 556 U.S. at 797

(concluding that "[i]f Montejo made a clear assertion of the
right     to    counsel           when    the    officers       approached        him        about
accompanying them on the excursion for the murder weapon, then
no   interrogation            should       have       taken     place        unless     Montejo

initiated it").              However, Attorney Kachinsky's questioning of
Attorney Fitzgerald left in doubt whether Delebreau had invoked
his Sixth Amendment right to counsel.
        ¶80    Here, however, even assuming arguendo that Delebreau
did affirmatively invoke his Sixth Amendment right to counsel,
Delebreau's statements to law enforcement were initiated by his
written       request        to    speak     with      drug     enforcement        personnel.
Aronstein's interviews with Delebreau on April 15 and April 18
occurred       in    direct       response      to    Delebreau's       written        request.
Furthermore, prior to each interview, Aronstein read Delebreau

                                                 6
                                                       No.   2013AP1108-CR.pdr


Miranda warnings and Delebreau affirmatively chose to proceed.
Those warnings were sufficient protection for Delebreau's Sixth
Amendment right to counsel.      Id. at 786; Patterson, 487 U.S. at
296.     Therefore,   no   constitutional      right   was   violated    when
Aronstein interviewed Delebreau, and the circuit court did not
err in denying Delebreau's suppression motion.
                              III.       CONCLUSION
       ¶81   Delebreau's   constitutional      right   to    counsel    under
state and federal constitutional provisions was not violated by

Aronstein's interviews because Delebreau initiated contact with
law enforcement and he was given Miranda warnings before each

interview.     Accordingly, I respectfully concur to the majority
opinion.




                                     7
                                                                   No.   2013AP1108-CR.ssa


        ¶82      SHIRLEY     S.    ABRAHAMSON,      J.      (dissenting).      On   April
14, 2011, the defendant was charged with delivering heroin and
made his initial appearance in court, where he was represented
by   a        public    defender.            The      defendant      thereafter      made
incriminating statements during two custodial interrogations.
        ¶83      The core issue presented is whether Article I, Section
7 of the Wisconsin Constitution, which affords the defendant the
right       to    counsel,        requires   suppression        of    the   defendant's
incriminating statements.1              I conclude that it does.

        ¶84      The   law        enforcement       agent    who     interrogated     the
defendant was apparently unaware that charges had been filed
against the defendant and that the defendant was represented by
counsel.         The agent did not contact the defendant's attorney and
the defendant's attorney was not present for the interrogations.
Instead, the agent read the defendant his Miranda rights,2 which

the defendant waived.
        ¶85      In considering whether the custodial interrogations of

the defendant were permissible under the Wisconsin Constitution
in light of the defendant's Miranda waiver, and thus whether the
defendant's incriminating statements were admissible at trial, I
would adhere to this court's reasoning in State v. Dagnall, 2000
WI 82, 236 Wis. 2d 339, 612 N.W.2d 680.

        1
       "In all criminal prosecutions the accused shall enjoy the
right to be heard by himself and counsel . . . ."    Wis. Const.
Art. 1, § 7.
        2
       See Miranda v. Arizona, 384 U.S. 436 (1966) (holding that
before a law enforcement officer can interrogate a person in
custody, that person must be informed of specified rights).


                                                1
                                                                No.   2013AP1108-CR.ssa


     ¶86    Dagnall established that once an accused is formally
charged    with    a    crime   and    is    represented       by   counsel   on   that
charge, the accused need not unambiguously invoke the right to
counsel    to    be     protected     from    police-initiated        interrogation.3
Rather, subsequent police-initiated interrogation is necessarily
improper.         Any    statements        made   by   a   defendant    during     such
interrogation must be suppressed.4                   A waiver of the defendant's
Miranda rights will not render the interrogation constitutional
or the defendant's statements admissible.5

     ¶87    As Justice Ziegler and Justice Gableman have written,
Dagnall articulated a "sound, fair, and workable standard."6

     ¶88    Further, the Dagnall rule fits with Wisconsin's long
and cherished history of recognizing and protecting an accused's
right to an attorney under the Wisconsin Constitution.
     ¶89    In     1859,     just     11     years     after   Wisconsin      achieved
statehood, this court declared that an accused has a fundamental
right to an attorney under the Wisconsin Constitution.7                             The

court reasoned that the right to a full and fair trial afforded
by the Wisconsin Constitution is meaningless when the accused


     3
       State v. Dagnall, 2000 WI 82, ¶61, 236 Wis. 2d 339, 612
N.W.2d 680.
     4
         Id., ¶¶64-66.
     5
         Id., ¶65.
     6
         See majority op., ¶36.
     7
       Carpenter v. Dane County, 9 Wis. 249 (*274) (1859).  See
also County of Dane v. Smith, 13 Wis. 654 (*585), 656-57 (*586-
88) (1851).


                                             2
                                                          No.   2013AP1108-CR.ssa


cannot     obtain    counsel.8       Accordingly,   the    court     instructed
counties to appoint attorneys to represent indigent felons at
government expense.9
     ¶90    It was not until 1963, a full 104 years later, that
the United States Supreme Court recognized a similar right under
the federal constitution.10
     ¶91    Given this history, there can be no question that the
state constitutional right to counsel stands apart from, and has
meaning independent of, the corollary right under the federal

constitution.        The longstanding state constitutional right to
counsel    must     be   protected   irrespective   of    the   United    States
Supreme     Court's       evolving    interpretation      of     the     federal
constitution.        As explained in State v. Doe, 78 Wis. 2d 161,

172, 254 N.W.2d 210 (1977), this court "will not be bound by the
minimums which are imposed by the Supreme Court of the United


     8
       Carpenter, 9 Wis. at 251 (*276) ("[W]ould it not
be . . . mockery   to  secure   to   a   pauper   these  solemn
constitutional guaranties for a fair and full trial . . . and
yet say to him when on trial, that he must employ his own
counsel, who could alone render these guaranties of any real []
value to him[?]").
     9
       Carpenter, 9 Wis. at 252 (*277) ("It seems eminently
proper and just that the county . . . should pay an attorney for
defending a destitute criminal.").
     10
       Gideon v. Wainright, 372 U.S. 335, 344 (1963) ("[I]n our
adversary system of criminal justice, any person haled into
court, who is too poor to hire a lawyer, cannot be assured a
fair trial unless counsel is provided for him.").      See also
State v. Forbush, 2011 WI 25, ¶71, 332 Wis. 2d 620, 796
N.W.2d 741 (Abrahamson, C.J., concurring); State v. Jennings,
2002 WI 44, ¶65, 252 Wis. 2d 228, 647 N.W.2d 142 (Abrahamson,
C.J., dissenting).


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States if it is the judgment of this court that the Constitution
of    Wisconsin . . . require[s]               that    greater        protection     of
citizens' liberties ought to be afforded."
      ¶92    Thus,    although    the     United      States    Supreme    Court    has
rejected the Dagnall rule in its interpretation of the federal
constitution,11 this court need not and should not do the same in
its   interpretation      of   the      state    constitution.12          Unlike    the
approach taken by the majority opinion today, the Dagnall rule
meaningfully protects "an accused's right to counsel in pre-

trial interrogation," which is "imperative to protect the trial
rights of an accused and to enhance the integrity of the fact-
finding process."13

      ¶93    I   would   adhere    to     Dagnall     and     would    continue    this
court's 156-year history of steadfastly protecting defendants'
right to counsel under the state constitution.
      ¶94    For the reasons set forth, I dissent.
      ¶95    I   am   authorized     to     state      that    Justice    ANN     WALSH

BRADLEY joins this opinion.




      11
           See Montejo v. Louisiana, 556 U.S. 778 (2009).
      12
       See Forbush, 332 Wis. 2d 620, ¶¶66-71 (Abrahamson, C.J.,
concurring).
      13
           Id., ¶78 (Abrahamson, C.J., concurring).


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