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Collateral attack on prior OWI can’t be premised on ineffective assistance of counsel

State v. Jeffrey R. Lindahl, 2019AP997-CR, District 3, 12/15/20 (one-judge decision; ineligible for publication); case activity (including briefs)

In State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, the supreme court held that a collateral attack against a prior conviction used to enhance a penalty must be based on the denial of the right to counsel in the prior case. The court of appeals holds that “denial of the right to counsel” doesn’t include denial of the right to the effective assistance of counsel.

Lindahl, charged with OWI 3rd, collaterally attacked the second offense conviction. He had a lawyer in the prior case, but he argued the lawyer was ineffective for failing to challenge the traffic stop. His assertion that Hahn allows this kind of collateral attack runs smack dab into Custis v. United States, 511 U.S. 485 (1994), on which Hahn itself is premised:

¶8     …. Hahn relies on Custis, which makes it clear that as a matter of federal constitutional law, an offender’s ineffective assistance of counsel claim cannot be used to attack a prior conviction in an enhanced sentence proceeding. See Custis, 511 U.S. at 494, 496. Thus, when Hahn and its progeny state that in Wisconsin “a circuit court may not determine the validity of a prior conviction during an enhanced sentence proceeding predicated on the prior conviction unless the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior conviction,” they plainly exclude a collateral attack premised on an alleged denial of the effective assistance of counsel. See Hahn, 238 Wis. 2d 889, ¶28; see also State v. Ernst, 2005 WI 107, ¶22, 283 Wis. 2d 300, 699 N.W.2d 92;…

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