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Lack of colloquy regarding waiver of counsel in prior OWI case does not make prima facie showing for collateral attack

State v. Glen G. Bowe, 2013AP238-CR, District 3, 9/17/13; court of appeals decision (1-judge; ineligible for publication); case activity

The lack of any colloquy regarding Bowe’s waiver of his right to counsel when he pled in his prior OWI case does not by itself make the prima facie showing necessary for a collateral attack on the prior conviction because State v. Ernst, 2005 WI 107, 283 Wis. 2d 300, 699 N.W.2d 92, requires the defendant allege specific facts showing his waiver was not knowing and voluntary:

¶13     …. [T]he lack of a waiver of counsel colloquy does not, by itself, amount to a prima facie showing that a defendant’s right to counsel was violated. See Ernst, 283 Wis. 2d 300, ¶25 (defendant must do more than allege court failed in its mandatory duties).  Rather, as previously stated,

To make a prima facie showing a defendant is required to point to facts that demonstrate that he or she did not knowingly, intelligently, and voluntarily waive his or her constitutional right to counsel.  An affidavit from the defendant setting forth such facts would be necessary, in order to establish a prima facie case.

Id., ¶33.

¶14      Here, Bowe’s prima facie showing consisted of nothing more than an allegation that the circuit court failed to perform its mandatory duties. Bowe did not aver that he did not know or understand the information that should have been provided in the previous proceeding. Because Bowe made no specific averments regarding what he did not know or understand, we are left to assume that, despite the court’s failure to engage Bowe in a proper colloquy, Bowe knew and understood all of the information that should have been provided regarding his right to counsel. Accordingly, we conclude Bowe failed to make a prima facie showing that his Sixth Amendment right to counsel was violated in the 2010 case….

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