Bohlinger made a prima facie showing that two prior OWI convictions were invalid because he did not knowingly and intelligently waive the right to counsel due to his limited cognitive capabilities. The circuit court concluded he had not made such a showing because he did not allege any deficiency in the colloquies addressing the waiver of counsel in the earlier cases. The court of appeals reverses, concluding an allegation of a deficient colloquy is not the only way to establish a prima facie case:
¶18 Neither the circuit court nor the State has pointed to any authority for the proposition that a defendant must allege a defective waiver colloquy in order to make a prima facie showing that his or her right to counsel was violated in an earlier case. No such requirement is set forth in [State v.] Ernst [2005 WI 107, ¶25, 283 Wis. 2d 300, 699 N.W.2d 92]. Instead, Ernst states that a defendant must point to “specific facts” showing that he or she did not actually know or understand the information that should have been provided in the earlier proceeding, and therefore did not execute a knowing, intelligent, and voluntary waiver of counsel. See id., ¶¶25-26. While Ernst states that a defective colloquy “can form the basis for a collateral attack” when supported by additional evidence, it does not hold that a defendant must allege a defective colloquy in order to state a prima facie case. See id., ¶37 (emphasis added). The circuit court therefore erred by determining, as a matter of law, that Bohlinger could not make a prima facie showing that his right to counsel was violated without alleging that the waiver colloquies in the 2008 and 2009 cases were deficient.
The court also notes that Iowa v. Tovar, 541 U.S. 77, 88 (2004), recognized that the information a defendant must possess to execute a valid waiver of counsel depends on “a range of case-specific factors, including the defendant’s education or sophistication[.]” To the court “[t]his suggests that, even if a transcript from a previous case evidences a facially valid waiver colloquy, a court may consider factors outside the transcript to determine whether the waiver was actually knowing, intelligent, and voluntary.” (¶19).
The court’s holding is a logical extension of the law governing collateral attacks on uncounseled prior convictions. And while it may look like a significant expansion of the ability to mount a collateral attack, this line of argument is going to be limited to cases where the facts can be marshaled to show a lack of capacity to waive counsel, as this case itself illustrates. Bohlinger submitted what the court calls “ample evidence” about his limitations. (¶20). Specifically: Attached to his motion was an affidavit stating that he has trouble reading and understanding information and that he did not understand the information provided to him during the earlier proceedings; also attached was a report from a psychologist that he suffers from “mild mental retardation or cognitive disability.” In addition, the psychologist and one of Bohlinger’s special education teachers testified at the motion hearing. (¶¶5-12). Even the circuit court admitted that the evidence showed Bohlinger did not have the cognitive capability to waive his right to counsel. (¶13). And while Bohlinger has now established his prima facie case, the state still gets the chance on remand to prove he did make a knowing waiver of counsel. (¶21).