Background
In December 2015, Brian Flatoff was charged with false imprisonment, recklessly endangering safety, attempted first-degree intentional homicide, felony murder, and felony bail jumping following a confrontation at Eagle Nation Cycles in Neenah, Wisconsin, in which Flatoff took hostages and opened fire on police, resulting in a bystander being shot. The charges carried a maximum exposure exceeding 300 years of imprisonment.
Over the next two-plus years, Flatoff cycled through at least seven appointed public defenders. Three withdrew for personal reasons such as retirement or conflict of interest. The remaining attorneys withdrew—or were driven out—after Flatoff refused to cooperate with their strategic decisions, wrote disparaging letters about them to the court, and demanded control over virtually every aspect of his defense, including which witnesses to call, what questions to ask, and what motions to file. Each time new counsel was appointed, the trial was adjourned. The trial court repeatedly warned Flatoff that the public defender’s office might exhaust its available attorneys or that the appointment pipeline might close as the trial date neared.
In January 2018—with trial roughly six weeks away—the seventh round of counsel (Attorneys Szilagyi and Heywood) told the court they had reached a “mutual understanding” with Flatoff that he wished to represent himself, explaining that Flatoff’s desire to control all strategic decisions was “nonnegotiable” and inconsistent with their ethical obligations. At a colloquy conducted pursuant to State v. Klessig, 211 Wis. 2d 194 (1997), the trial court confirmed that Flatoff deliberately chose to proceed without counsel; was aware of the difficulties and disadvantages of self-representation; understood the seriousness of the charges and the potential sentence; and was competent to represent himself—pointing to his GED, three years of college (3.87 GPA), two years of legal self-study, and his statement that his mental health conditions did not impair his ability to communicate or understand proceedings. Flatoff signed a waiver form and confirmed his choice. When asked to choose between the public defender’s office and himself, Flatoff said: “I am going to choose me.”
The trial court then appointed Attorney Szilagyi as standby counsel over the objection that WIS. ADMIN. CODE § PD 5.03 prohibits public defenders from serving in that role, even in cases where they had previously represented the client. The court justified the appointment on grounds of judicial efficiency: the case was complex (multiple serious felony charges, a long witness list, conspiracy allegations, and an insanity defense), trial had already been delayed many times, and Attorney Szilagyi was already prepared. The county, not the State Public Defender, was ordered to pay for the services. After the State rested at trial, Flatoff asked Szilagyi to take over; the court converted the appointment from standby to advisory counsel, and Szilagyi finished the trial. The jury convicted Flatoff on all counts and found no mental disease or defect.
The Court’s Holding
The Wisconsin Court of Appeals, District II, affirmed the judgment of conviction and the order denying postconviction relief.
1. Flatoff validly waived his right to counsel. Under Klessig, a valid waiver requires that the defendant: (1) deliberately chose to proceed without counsel; (2) was aware of the difficulties and disadvantages of self-representation; (3) was aware of the seriousness of the charges; and (4) was competent to represent himself. All four elements were satisfied here. The trial court’s colloquy was thorough: it confirmed Flatoff’s voluntary choice, explained the disadvantages of self-representation at length, enumerated the charges and the 300-year maximum, and assessed competence based on Flatoff’s education, legal research experience, and self-reported mental health status. The court also noted, without reaching the issue, that the record independently supported a forfeiture finding—a separate doctrine that does not require the same knowing-and-voluntary showing as waiver.
2. Appointing a public defender as standby counsel was not an abuse of discretion. WIS. ADMIN. CODE § PD 5.03 prohibits public defenders from serving as standby counsel in any case, even where they previously represented the defendant. But a trial court’s authority to appoint counsel is “inherent” and derives from the court’s duty to manage proceedings—not from the defendant’s constitutional right to counsel. As officers of the court, public defenders are subject to that inherent authority when no other reasonable alternative is available and the court explicitly states the need for its discretionary exercise. Here, no substitute counsel could realistically be found who could clear a schedule, develop a working relationship with Flatoff, and prepare in six weeks for a complex multi-felony trial. The court’s appointment was justified, and it appropriately placed the cost on Winnebago County pursuant to WIS. STAT. § 753.19.
Key Takeaways
- A defendant who exhausts a series of appointed attorneys by refusing to cooperate with any of them and insisting on controlling all strategic decisions may be found to have knowingly and voluntarily waived the right to counsel, provided the trial court conducts a full Klessig colloquy covering all four elements—including a specific competency assessment.
- Wisconsin trial courts retain inherent authority to appoint a public defender as standby counsel even though WIS. ADMIN. CODE § PD 5.03 prohibits the practice; the administrative code does not override the court’s inherent authority when no reasonable alternative exists, the court explicitly states its discretionary basis, and complexity of the case requires it.
- When a trial court overrides § PD 5.03 to appoint standby counsel from the public defender’s office, the county—not the State Public Defender—bears the cost of that attorney’s services under WIS. STAT. § 753.19.
Why It Matters
State v. Flatoff addresses two recurring tensions in Wisconsin’s high-stakes criminal proceedings: the limits of the right to counsel and the limits of the State Public Defender’s administrative rules. On the first issue, the opinion confirms that Wisconsin’s right-to-counsel protections—while robust—do not allow a defendant to indefinitely delay trial by rejecting each successive appointed attorney. Once the trial court has conducted a thorough Klessig colloquy and documented a voluntary, knowing election to proceed pro se, the constitutional inquiry is closed. Defendants who try to retract that choice on appeal face the full weight of a signed waiver form and a comprehensive colloquy record.
On the standby-counsel issue, the decision gives trial judges a practical tool in complex cases where a pro se defendant may otherwise be unable to navigate highly technical proceedings. The tension between the SPD’s administrative prohibition and the court’s inherent authority is resolved in favor of the court when circumstances are genuinely extraordinary—imminent trial, complex facts, a defendant hostile to every new appointment, and no realistic alternative. Practitioners and county budget officers should note that such appointments shift the cost from the SPD to the county; any county facing a similar situation should factor the attorney compensation risk into its pre-trial management decisions.