Lebo failed to make a prima facie showing that his right to counsel was violated in two prior OWI proceedings because he didn’t point to specific facts demonstrating that he did not know or understand information that should have been provided during the waiver of counsel colloquy, as required by State v. Ernst, 2005 WI 107, ¶¶25-26, 283 Wis. 2d 300, 699 N.W.2d 92.
Lebo was convicted of OWI in Shawano County in 1998 and 1999, and he challenged the use of those convictions to enhance the OWI 7th/8th/9th charge brought in this case. (¶2). There were no transcripts available from the Shawano cases, but there were minute sheets. (¶¶5-6). Lebo submitted an affidavit with his collateral attack motion asserting he was not represented by an attorney in the Shawano County proceedings; is unable to read; was in special education classes during school; and suffers from memory problems. Lebo also averred he couldn’t remember “the circumstances” of the Shawano County hearings, though he also asserted he “just agreed with everything the Judge said, because [he] didn’t know what to do[,]” and he did “what ‘they’ told me[.]” (¶¶3, 31).
¶32 These allegations are insufficient to make a prima facie showing that Lebo did not know or understand the information that should have been provided during the Shawano County proceedings. Notably, Lebo did not allege that he did not waive his right to counsel in the prior proceedings, that the courts failed to advise him of any information required by [State v.] Klessig, [211 Wis. 2d 194, 564 N.W.2d 716 (1997),] or that he was unaware of the required information. In addition, the minutes sheet from the 1998 case stated, “Does not want atty[,]” and the minutes sheet from the 1999 case similarly stated, “Will represent self[.]” Both of the minutes sheets also stated, “Def. advised of rights. Those rights waived.” This provides circumstantial evidence that Lebo was advised of and waived his right to counsel.
¶34 Finally, even if we considered Lebo’s testimony from the evidentiary hearing, we would nevertheless conclude he failed to make a prima facie showing. See State v. Hammill, 2006 WI App 128, ¶¶9-11, 293 Wis. 2d 654, 718 N.W.2d 747 (considering defendant’s testimony at an evidentiary hearing in order to conclude defendant failed to make a prima facie showing his right to counsel was violated). At the hearing, Lebo could recall very little about what occurred during the Shawano County proceedings. He testified he could remember one of the hearings, and he remembered speaking to the judge for about five minutes, but he could not remember what they discussed. In particular, he could not remember whether they discussed representation by a public defender, what an attorney could do for him, the difficulties of self-representation, or the charges against him. See Klessig, 211 Wis. 2d at 206. A defendant cannot make a prima facie showing simply by alleging he or she does not remember what occurred during the earlier proceedings. See Hammill, 293 Wis. 2d 654, ¶11. In addition, Lebo specifically testified he knew the penalties for the charges against him at the time of the Shawano County proceedings. See Klessig, 211 Wis. 2d at 206. On this record, we conclude Lebo failed to make a prima facie showing that his right to counsel was violated.
The state unsuccessfully argues that Lebo should not only have to make a prima facie showing but, because there’s no transcript revealing a flaw in the prior waiver of counsel, should also bear the burden of proving an invalid waiver. (¶¶20-24). The court agrees with Lebo that this argument is foreclosed by State v. Baker, 169 Wis. 2d 49, 485 N.W.2d 237 (1992), and State v. Drexler, 2003 WI App 169, 266 Wis. 2d 438, 669 N.W.2d 182, among other cases. (¶¶25-29). But that doesn’t stop the court from telling us that, in the absence of contrary binding case law, it would find the state’s argument persuasive. (¶29 n.5). The court of appeals has previously criticized the existing collateral-attack procedure because of the difficulty it creates for the state to meet its burden if the transcripts are unavailable. See, e.g., State v. Nelson, 2005AP2060-CR (July 20, 2006) (unpublished); State v. Steinhorst, 2011AP1360-CR (Wis. Ct. App. Nov. 23, 2011) (unpublished); State v. Schwandt, 2011AP2301-CR (Wis. Ct. App May 16, 2012) (unpublished). So be forewarned: The state will continue to push this argument until it gets the issue into the supreme court, which can of course change the rules.