This is a permissive appeal. Matthew Seward is charged with OWI-3rd; he seeks reversal of the circuit court’s denial of his collateral attack on his OWI-2nd conviction.
State v. Ernst, 2005 WI 107, ¶25, 283 Wis. 2d 300, 699 N.W.2d 92, imposed a Bangert-like rubric for evaluating this sort of claim: the defendant must (1) allege that the previous court failed to engage in a proper colloquy for the waiver of counsel, and (2) allege that he did not know the information that the colloquy should have conveyed. If the defendant meets this pleading standard, the state must assume the burden of showing that the defendant was, in fact, aware of the necessary information. One of the required colloquy topics is “the difficulties and disadvantages of self-representation.”
Seward’s affidavit states:
(1) “I was never advised of and I did not know or understand the difficulty or disadvantage of proceeding without counsel.”
(2) Prior to his 2006 court proceeding, “I had never been involved in the court system.”
(3) “The court never advised me that there might be an advantage to having an attorney, nor did the court advise me that it might be difficult to proceed without counsel.”
(4) “Because I had never been involved in the criminal system before, I did not know or understand the difficulty or disadvantage of proceeding without an attorney.”
Clearly he’s made the allegation of a defective colloquy; the court of appeals, however, determines that he has not adequately alleged a lack of knowledge. (It does so after a somewhat lengthy discussion of Ernst and its progenitors, which seems to question whether failure to understand the “dangers and disadvantages of self-representation” can ever amount to an invalid waiver of counsel; the dissent in Ernst would have held that it cannot.)
In the court’s view, Seward’s statement that he “did not know or understand the difficulty or disadvantage of proceeding without an attorney” does not sufficiently allege a lack of knowledge of “the difficulties and disadvantages of self-representation”:
Seward can arguably make a prima facie showing by averring that he did not “understand the role counsel could play in the proceeding.” However, the lesson of Ernst is that bare assertions of Klessig deficiencies are not enough. There must be factual connections made between the deficiencies in the colloquy and why that rendered the waiver unknowing, unintelligent, or involuntary. Seward still must point to “specific facts” indicating he did not knowingly, intelligently, and voluntarily waive his right to counsel. A conclusory statement that Seward did not understand the advantages of counsel and the disadvantages of proceeding pro se—without identifying what he did not know or understand—is not enough.
The court goes on:
It is worth emphasizing that whether Seward’s constitutional rights have been violated must be made based upon the specific facts and circumstances of his particular case. See Tovar, 541 U.S. at 93. Seward’s 2006 conviction was a simple and straightforward charge—OWI. This followed his first OWI offense just two years before. Like the defendant in Tovar, Seward has not “‘articulate[d] with precision’ the additional information counsel could have provided.” Id. at 93 (citation omitted; alteration in original). He has not made any factual claim of what exactly he wanted to know—other than generic “difficulties and disadvantages” of proceeding pro se—such that his waiver became unknowing or unintelligent. He has not even specified how a proper understanding would have changed his approach. Nor does he explain why he chose to waive counsel despite the strong warning from the court commissioner to obtain counsel.
Hmm. The thrust of that first paragraph seems to be that a defendant must identify specific disadvantages of proceeding without counsel of which he or she was unaware–the unknown unknowns. This seems a little formalistic. But, consider yourself warned. If you’re pursuing a collateral attack, you may wish to ask your client whether he was aware “that there are defenses to criminal charges that may not be known by laypersons and that the danger in waiving the assistance of counsel in deciding whether to plead guilty is the risk that a viable defense will be overlooked [and] 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 at 91–and if he wasn’t, put it in the affidavit.
The second paragraph is still more problematic. The whole point of a collateral attack is that a conviction has been obtained in violation of the right to counsel. That right attaches even where the charges are “straightforward,” and if it’s violated, it’s violated, without regard to what sort of outcome counsel might have been able to obtain. Moreover, the Tovar court was rejecting the notion that a defendant must be informed of the “dangers and disadvantages” of going pro se; this is not the law in Wisconsin. Ernst, ¶21.