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OWI – Habitual – Collateral Attack

State v. Jonathan M. Reynolds, 2011AP512-CR, District 4, 8/11/11

court of appeals decision (1-judge, not for publication); for Reynolds: Steven Cohen; case activity

Reynolds collateral attack on a prior OWI conviction (on the ground waiver of counsel was ineffectual because he didn’t know the potential range of penalties) is rejected. Basic procedure discussed and applied, ¶8.

¶11      Reynolds testified that although he received a copy of the complaint, which set forth the maximum penalties faced for second offense OWI, he did not read the document.  He also testified that he was not otherwise informed by the court of those penalties.  The circuit court, when acting as the fact finder, is the ultimate arbiter of a witness’s credibility.  Gehr v. City of Sheboygan, 81 Wis. 2d 117, 122, 260 N.W.2d 30 (1977).  The circuit court had an opportunity to assess Reynolds’ credibility and made a factual determination, based upon the circumstances, that he did not believe Reynolds’ testimony, in particular Reynolds’ testimony that the circuit court judge at the 1997 proceeding did not advise him of the penalties for OWI, second offense.  The court did not have an obligation to believe Reynolds’ testimony simply because there was no testimony to the contrary.  Accordingly, I conclude that the circuit court’s credibility determination was not clearly erroneous and that Reynolds was aware of the penalties of second offense OWI when he waived his right to counsel.  I, therefore, affirm the order of the court denying Reynolds’ motion collaterally attacking his prior OWI conviction and the judgment of conviction.

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