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Collateral Attack – OWI Prior

State v. Brian M. Joski, 2010AP2223-CR, District 3, 5/3/11

court of appeals decision (1-judge, not for publication); for Joski: Thomas J. Coaty; case activity

A prior conviction used to enhance a new sentence may be collaterally attacked on the basis of violation of right to counsel, in other words, that the defendant didn’t validly waive counsel within the requirements set by State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997), and State v. Ernst, 2005 WI 107, ¶2, 283 Wis. 2d 300, 699 N.W.2d 92. If the waiver colloquy was inadequate, then the remedy is an evidentiary hearing at which the State bears the burden of showing knowing, intelligent and voluntary waiver notwithstanding the deficient colloquy. The trial court followed that procedure in this case.

¶9        Here, the proper collateral attack procedures were followed.  We assume, without deciding, that Joski successfully made a prima facie showing that he did not knowingly, intelligently, and voluntarily waive his right to counsel.  Pursuant to Ernst, the court then held an evidentiary hearing to determine whether the waiver was knowing, intelligent, and voluntary.  At the evidentiary hearing, Joski was called by the State, showing the State had the burden of proof.[3]  Following the evidentiary hearing and after reviewing Joski’s waiver of counsel form and plea questionnaire, the circuit court ruled that it was satisfied Joski knowingly, intelligently, and voluntarily waived his right to counsel in the Washington County case.

¶10      We see nothing wrong with the circuit court’s procedure or analysis—it is exactly what Ernst requires for a collateral attack.  See id., ¶¶25, 27.  Further, because Joski failed to provide the transcript from the evidentiary hearing, we assume that Joski’s testimony supports the court’s determination that his waiver of counsel was knowing, intelligent, and voluntary.  See Fiumefreddo v. McLean, 174 Wis. 2d 10, 27, 496 N.W.2d 226 (Ct. App. 1993) (It is the appellant’s responsibility to ensure the record is complete, and a reviewing court assumes missing materials support the circuit court’s ruling.).

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