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Enhancers — Collateral Attack on, as Part of Sentencing Proceeding

State v. David M. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, clarified on reconsideration, 2001 WI 6, on certification
For Hahn: Steven G. Bauer

Issue: “(W)hether the U.S. Constitution requires that an offender be permitted during an enhanced sentence proceeding predicated on a prior conviction to challenge the prior conviction as unconstitutional because the conviction was allegedly based on a guilty plea that was not knowing, intelligent, and voluntary.” ¶3.

Holding:

¶4. We conclude that an offender does not have a federal constitutional right to use the enhanced sentence proceeding predicated on a prior state conviction as the forum in which to challenge the prior conviction, except when the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior state conviction. We further conclude, as a matter of judicial administration, that an offender may not use the enhanced sentence proceeding predicated on a prior conviction as the forum in which to challenge the prior conviction, except when the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior state conviction. Because the defendant in the present case does not allege that a violation of his constitutional right to a lawyer occurred in the prior conviction, he may not challenge his 1994 conviction during this 1997 persistent repeater proceeding.

The court previously held that a prior conviction alleged as a sentencing enhancer could be challenged during the sentencing proceeding, as based on an unknowing, involuntary guilty plea; challenged, that is, without much restriction as to the nature of the asserted constitutional infirmity of the enhancer. State v. Baker, 169 Wis. 2d 49, 485 N.W.2d 237 (1992). The court now limits Baker, on the strength of Custis v. United States, 511 U.S. 485 (1994), to claims that the prior conviction was obtained through denial of the right to assistance of counsel (not, it should be stressed, denial of effective assistance, but denial of counsel altogether), ¶17:

Accordingly, we conclude that Baker should be limited to adhere to Custis: In an enhanced sentence proceeding predicated on a prior conviction, the U.S. Constitution requires a trial court to consider an offender’s allegations that the prior conviction is invalid only when the challenge to the prior conviction is based on the denial of the offender’s constitutional right to a lawyer.

This new limitation may substantially alter present sentencing procedure by eliminating almost all attacks on enhancement, though the decision is carefully limited to attacks in the present sentencing proceeding (as clarified on reconsideration):

¶28 these administrative considerations may weigh differently in different cases, we conclude that considerations of judicial administration favor a bright-line rule that applies to all cases. We therefore hold that 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. Instead, the offender may use whatever means available under state law to challenge the validity of a prior conviction on other grounds in a forum other than the enhanced sentence proceeding. If successful, the offender may seek to reopen the enhanced sentence. If the offender has no means available under state law to challenge the prior conviction on the merits, because, for example, the courts never reached the merits of this challenge under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), or the offender is no longer in custody on the prior conviction, the offender may nevertheless seek to reopen the enhanced sentence. We do not address the appropriate disposition of any such application.

The U.S. Supreme Court subsequently held that habeas can’t be sued to support attack on an expired prior even if used to enhance the current sentence. Daniels v. U.S.;Lackawanna Co. D.A. v. Coss. Though the reconsideration clarification supports a more generous view of the right to proceed with a collateral attack under Wisconsin versus federal law, a somewhat casual explanatory aside in a more recent case also suggests otherwise. State v. Lawrence P. Peters, 2001 WI 74 ¶16, 244 Wis. 2d 470, 628 N.W.2d 797: “That is, a defendant may directly rather than collaterally challenge a prior conviction used to enhance a subsequent sentence, and if successful, apply to the court to have the enhanced sentence adjusted.”

 

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