Applying State v. Ernst, 2005 WI 107, 283 Wis. 2d 300, 699 N.W.2d 92, the circuit court properly concluded that Reggs failed to make a prima facie showing that he did not knowingly, intelligently, and voluntarily waive the right to counsel for an earlier OWI conviction.
The parties agree Reggs’s 2001 Illinois OWI conviction was uncounseled, but they dispute whether Reggs had the right to counsel in that proceeding and whether the right to counsel in the proceeding should be analyzed under Iowa v. Tovar, 541 U.S. 77 (2004), or Ernst, which provides greater protections than Tovar. (¶¶4-5). Assuming, without deciding, that Reggs had the right to counsel and that Ernst applies, the court of appeals holds Reggs’s affidavit in support of his collateral attack motion failed to make a prima facie showing. Like the affidavit in Ernst, ¶26, Reggs’s affidavit “failed to aver or otherwise provide specific facts suggesting that he did not know of or understand his right to counsel.” (¶10).
The pertinent part of Reggs’s affidavit read as follows (¶10):
4. Your affiant was never advised of his right to counsel by the presiding Judge [in the Illinois proceeding].
5. Your affiant was never advised of the difficulties of proceeding without counsel by the presiding Judge, specifically, but not limited to, the fact that an attorney with sufficient legal training could potentially spot legal issues which would constitute a defense to the crime alleged.
6. Had the Judge informed him of his right to counsel and the advantages and disadvantages of having counsel, he would have actively pursued legal counsel.
The court also rejects Reggs’s argument that the officer lacked probable cause to arrest him for intoxicated driving. Among the totality of the circumstances relied on by the court are: Reggs’s failure to turn on his headlights even though it was 2:30 a.m.; his wide left-hand turn followed by a sudden jerk to the left; his unusually slow speed; his admission he’d been drinking; and the usual indicia—odor of alcohol, slightly slurred speech, reddish and glassy eyes. (¶¶16-30).