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Enhancers — Collateral Attack on, at Sentencing

State v. Thomas A. Drexler, 2003 WI App 169, PFR filed 8/1/03
For Drexler: Ralph A. Kalal

Issue/Holding: In support of a collateral attack on a prior OWI conviction used to enhance a current OWI prosecution, Drexler submitted an affidavit asserting that the trial court had not advised him of his right to counsel: although this was enough to establish a prima facie case of denial of right to counsel, the state met it burden of knowing and intelligent waiver of counsel by producing a transcript of the prior proceeding which showed that the court did advise Drexler of his right to counsel. ¶¶7-11.

The court expresses concern that the SCRs relating to record-retention create “a problem of statewide concern that should properly be addressed by the supreme court,” because “the State is placed in an untenable position under Baker if a defendant collaterally attacking a prior conviction can meet his or her burden of proof by simply filing an affidavit recounting his or her version of what occurred five, ten, twenty or twenty-five years earlier.” ¶11 n. 6.

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