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OWI Enhancer – Collateral Attack

State v. Jason L. Decorah, 2011AP662-CR, District 4, 12/8/11

court of appeals decision (1-judge, not for publication); for Decorah: Corey C. Chirafisi; case activity

Collateral attack on a prior OWI used as a current enhancer, on the ground Decorah didn’t understand the range of penalties therefore didn’t validly waive counsel. Decorah prevailed below, and the court affirms on this State’s appeal:

¶3        Decorah’s collateral attack is based on his contention that, at the time he waived his right to counsel in the second OWI case, he did not know the range of penalties he faced.  The State argues that State v. Ernst, 2005 WI 107, 283 Wis. 2d 300, 699 N.W.2d 92, teaches that Decorah may not collaterally attack on this basis.  Specifically, the State asserts that “Ernst does not allow collateral attack for a penalties violation, only for Constitutional Right to Counsel.”  The State misreads Ernst.

¶4        … As pointed out in Ernst, the constitutionally required information is set out in Iowa v. Tovar, 541 U.S. 77, 81 (2004). See Ernst, 283 Wis. 2d 300, ¶15.  Tovar explains that a waiver of the Sixth Amendment right to counsel is valid “‘when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.’”  See Ernst, 283 Wis. 2d 300, ¶15 (quoting Tovar, 541 U.S. at 81).  Thus, Ernst, contrary to the State’s position, teaches that not knowing or understanding the range of punishments is a basis for a collateral attack because it results in an invalid waiver of counsel.

The trial court’s “credibility determination” that Decorah didn’t understand the “general range of penalties” is upheld as a matter of deferential review, ¶5. Asserted procedural hurdles of judicial estoppel and issue preclusion were forfeited by the State’s failure to raise them below. Claim preclusion – Decorah didn’t raise the present challenge in prior OWI-habituals, therefore shouldn’t be allowed to raise it now – is preserved but fails on the merits:

¶10      We have explained that, for purposes of claim preclusion, “Wisconsin applies a transactional approach to the determination of whether two suits involve the same cause of action.”  Id., ¶15.  The pertinent inquiry is whether “‘both suits arise from the same transaction, incident or factual situation.’”  Id. (emphasis added; citation omitted).  The present case does not arise from the same incident as any of the prior OWI cases.  Thus, the cause of action in this case is different.

Procedural note: This is brought on State’s appeal, after sentencing and in practical effect operates as a challenge to the length of sentence. § 974.05(1)(a) authorizes State’s appeal from an adverse final order or judgment adverse “if the appeal would not be prohibited by constitutional protections against double jeopardy.” Decorah didn’t argue a double jeopardy bar, and the propriety of the State appealing a sentence therefore passes without comment, ¶1 n. 2. A knotty question, to be sure. Whether modification of a sentence violates double jeopardy turns, as a general matter, on whether the defendant had a “legitimate expectation of finality” in the original sentence. E.g., State v. Gruetzmacher, 2004 WI 55, ¶39, 271 Wis. 2d 585, 679 N.W.2d 533; State v. Willett, 2000 WI App 212, ¶6, 238 Wis. 2d 621, 618 N.W.2d 881. It might be tempting to say that Decorah couldn’t have had an expectation of finality in his sentence, when he himself commenced successful litigation to lower its ceiling. But that might also be too facile; allowing the State to appeal a sentence because it thinks the sentence too short isn’t necessarily what the legislature intended with this provision. The problem, that is, is worthy of closer thought – and it is potentially recurrent, given that the protocol for challenging an enhancer is the same for all sentencings, not just traffic.

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