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Enhancer – Collateral Attack – Transcript Missing from Enhancer Case, & Defendant’s Prima Facie Burden

State v. Joseph J. Hammill, 2006 WI App 128
For Hammill: Patrick J. Stangl

Issue/Holding:

¶6        A defendant may collaterally attack a prior conviction in an enhanced sentence proceeding only on the ground that the defendant was denied the constitutional right to counsel. …

¶7        Hammill argues that he made a prima facie showing that he did not knowingly and voluntarily waive his right to counsel. Hammill’s argument focuses on distinguishing his case from our decision in State v. Stockland, 2003 WI App 177, 266 Wis. 2d 549, 668 N.W.2d 810. In Stockland, the defendant collaterally attacked a prior OWI conviction. However, Stockland only produced a partial transcript of his plea colloquy. …

¶8        Hammill attempted, but was unable, to procure a transcript due to the destruction of the court reporter’s notes. [3] For this reason, we do not conclude, as we did in Stockland, that the mere absence of a transcript defeats Hammill’s collateral attack. However, Hammill still carries the burden of making a prima facie showing. …

¶11      On this record, we conclude Hammill has failed to make a prima facie showing that he did not knowingly and voluntarily waive counsel. His testimony does not contain facts demonstrating he did not know or understand information that should have been provided to him. See Ernst, 283 Wis.  2d 300, ¶25. Rather, Hammill simply does not remember what occurred at his plea hearing. Having failed to make a prima facie showing, Hammill’s collateral attack fails.

 

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