The circuit court erred in holding Krueger failed to make a prima facie showing that he didn’t validly waive the right to counsel in a prior OWI conviction.
To collaterally attack a prior OWI conviction that is being used to enhance the sentence in a pending case, the defendant must point to facts demonstrating that, when he waived counsel in the prior proceeding, he did not know or understand the difficulties and disadvantages of self-representation, the seriousness of the charge or charges against him, or the general range of penalties that could have been imposed on him. If a defendant makes a prima facie showing, the burden to prove that the defendant validly waived his or her right to counsel shifts to the state. State v. Ernst, 2005 WI 107, ¶¶2, 20-25, 283 Wis. 2d 300, 699 N.W.2d 92.
Krueger’s collateral attack motion was supported by an affidavit, which he supplemented with testimony at a hearing on his motion. (¶¶4-6). The assertions in Krueger’s affidavit and testimony (set out at ¶¶12-13) were sufficient to make a prima facie case that his waiver of counsel in the prior case was not knowing and voluntary:
¶15 Krueger not only averred that he was not advised of, and did not understand, the difficulties and disadvantages of proceeding without an attorney, but his testimony, if believed, provided specific supporting facts indicating that Krueger had no experience with attorneys and little concept of how an attorney might help him. That is, Krueger’s testimony provided additional facts supporting his affidavit claim that he did not understand that an attorney might be able to assist him in criminal proceedings. Further, Krueger’s testimony, if believed, showed that Krueger did not know that he had the right to an attorney. Finally, Krueger testified that, had he understood that he had the right to talk to an attorney, he probably would have talked to or retained an attorney to assist him in understanding his options. Taken as a whole, Krueger’s affidavit and testimony, if believed, support a determination that Krueger did not understand all of the necessary information he should have been provided and that he did not make a “deliberate choice” to proceed without counsel. ….
Because Krueger made a prima facie showing of an invalid waiver of counsel, the case is remanded for a hearing at which the state will have the chance to prove Krueger’s waiver of counsel was knowing and voluntary. (¶38).
Relying on a recent unpublished case, State v. Seward, No. 2016AP1248-CR, unpublished slip op. (WI App Mar. 22, 2017), the state contends Krueger didn’t sufficiently allege which specific difficulty or disadvantage he did not understand. The court of appeals disagrees, saying that Seward is distinguishable, that such specificity isn’t required by Ernst, and that Krueger’s affidavit and testimony included specific facts about his lack of experience in legal matters and the he didn’t know he had the right to counsel. (¶¶17-27).
In addition, the circuit court erred in finding Krueger’s assertions not credible based on its own personal knowledge of how criminal proceedings in the county transpired at the time of Krueger’s prior conviction. Assuming without deciding the judge was permitted to assess credibility as part of its assessment of Krueger’s prima facie case, it was improper for the court to take judicial notice of its own personal knowledge and memory. (¶¶28-36).