Automatic Reversal for Denial of Counsel in Probation Revocation Proceedings

Introduction

In Matthew C. Skamfer v. Phillip A. Grassmann, 2025 WI 45, file no. 2025AP000952 (Apr. 30, 2025), the Supreme Court of Wisconsin was asked to decide whether a probationer is entitled as a matter of due process—and under Wis. Stat. ch. 977—to appointed counsel at a revocation hearing that may lead to incarceration, and whether the failure to appoint counsel constitutes a structural error mandating automatic reversal. Petitioner Matthew Skamfer, having lost his probation without representation and facing a lengthy prison term, sought a writ of habeas corpus against Phillip Grassmann, warden of the Rusk County Jail. The State Public Defender’s office had issued an order appointing counsel in the underlying revocation proceedings, but no counsel appeared. Skamfer argued that the hearing court’s failure to secure his representation violated his statutory and constitutional rights.

Summary of the Judgment

The Supreme Court of Wisconsin held:

Under Wis. Stat. ch. 977 and the Wisconsin Constitution’s due process guarantee, a probationer facing a hearing that may result in incarceration is entitled to the assistance of counsel.
The failure to appoint or otherwise secure counsel at such a hearing is a structural error; it undermines the fairness of the entire proceeding and requires automatic reversal of any revocation order.
The appropriate remedy is to grant the writ of habeas corpus, vacate Skamfer’s revocation, and remand for a new revocation hearing at which counsel must be present.

Analysis

Precedents Cited

The Court’s decision drew from both federal and state authorities:

Gagnon v. Scarpelli, 411 U.S. 778 (1973). While acknowledging that federal law does not guarantee counsel in every probation‐revocation hearing, the Court read Gagnon for the proposition that when state law creates an entitlement to counsel, it must be honored.
Wisconsin Statutes chapter 977. Sections 977.02 and 977.08(2) spell out the State Public Defender’s duty to appoint counsel for indigent persons “in all postconviction relief proceedings,” a category that the Court found encompassing probation revocations resulting in incarceration.
State ex rel. Hass v. Hardy, 66 Wis. 2d 335, 224 N.W.2d 573 (1974). Recognizing a due‐process right to counsel in “critical stages” of criminal proceedings, which the Court extended to the probation‐revocation context.
State v. Mitchell, 2002 WI 5, 250 Wis. 2d 62, 639 N.W.2d 775. Court confirmed that sentencing and restitution hearings qualify as critical stages, a principle transposed here to revocation hearings.

Legal Reasoning

The Court engaged in a three‐step analysis:

Statutory Entitlement. Chapter 977 unambiguously requires appointment of counsel where denial “may result in loss of liberty.” A revocation hearing under Wis. Stat. § 973.10(4) carries precisely that risk.
Due Process Considerations. The Wisconsin Constitution’s due process clause guarantees fair procedure before the deprivation of liberty. Representation by counsel is deemed a "fundamental element of fairness" when an unrepresented probationer confronts factual disputes and legal technicalities at a revocation hearing.
Structural Error Doctrine. Because the right to counsel here is absolute whenever incarceration is at stake, its denial is not a mere “harmless error.” Rather, it is structural—affecting the framework of the trial itself—and therefore triggers automatic reversal, without inquiry into whether the outcome “probably” was proper.

Impact

This ruling will have immediate and far‐reaching consequences:

All Wisconsin trial courts must ensure appointment of counsel for indigent probationers in revocation proceedings where the penalty may include confinement.
Defendants nationwide may cite Skamfer as persuasive authority for the proposition that procedural statutes creating a right to counsel convert what federal law views as discretionary into an absolute constitutional entitlement under state law.
The decision emphasizes structural‐error analysis in non‐traditional criminal proceedings, broadening the landscape of rights guaranteed at “critical stages.”

Complex Concepts Simplified

Structural Error: An error so fundamental that it affects the entire conduct of the proceeding—such as the absence of a required legal safeguard—automatically requires reversal, without proof that the outcome was otherwise unfair.
Critical Stage: A point in the criminal or quasi‐criminal process where counsel’s absence could undermine a defendant’s right to a fair trial or hearing. The Court confirmed that revocation hearings fall into this category when incarceration is possible.
Writ of Habeas Corpus: A court order requiring a custodian to bring a prisoner before the court to determine whether the detention is lawful. Here, Skamfer used the writ to challenge the legality of his probation revocation without counsel.

Conclusion

Skamfer v. Grassmann establishes a new, bright‐line rule in Wisconsin: whenever a probationer faces a hearing that may result in incarceration under chapter 973 or related statutes, the right to appointed counsel is absolute. Failure to secure representation transforms the hearing into an unfair process that must be set aside without further inquiry. In doing so, the Court reinforced the fundamental principle that justice cannot be dispensed when the State strips liberty without offering the minimal assurance of a trained advocate at the table.