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Use of counsel in prior cases defeats defendant’s claim that he didn’t knowingly waive his right to counsel in later case

State v. Scott J. Stelzer, 2013AP1555-CR, District 2, 12/27/13 (1-judge decision; ineligible for publication), case activity

After being convicted of his 3rd OWI offense, Stelzer moved to exclude his 2nd OWI (which occurred in 1996) from the calculation of his prior convictions on the grounds that he was not represented by counsel when he pled guilty to it.  Nor did he knowingly, intelligently and voluntarily waived his right to counsel at that time.  Specifically, he was not advised of his right to counsel, the benefits of having an attorney, or the dangers of self-representation.

The plea transcript from the 2nd OWI case no longer exists.  Still, the State conceded that Stelzer presented a prima facie challenge on this issue.  Stelzer lost anyway because he had previously used attorneys in a battery case and a divorce case.  Plus he admitted having engaged in a cost-benefits analysis about whether to engage an attorney for his 2nd OWI.  Relying mostly on State v. Gracia, 2013 WI 15, 345 Wis. 2d 488, 826 N.W.2d 87, see On Point post here, the court of appeals concluded:

¶12 We agree with the circuit court’s determination that Stelzer made a cost-benefit decision when he waived his right to counsel, that he knew he had the right to counsel and that he was aware of the role of an attorney. We also agree that the State met its burden to show by clear and convincing evidence that Stelzer’s waiver of his right to counsel was made knowingly, intelligently and voluntarily. We affirm the circuit court’s denial of Stelzer’s collateral attack and Stelzer’s subsequent conviction for OWI, third offense.

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