An OWI defendant can attack prior convictions–thus seeking a lower offense number and lower associated penalty–only if he or she lacked counsel in that prior proceeding and did not knowingly, voluntarily and intelligently waive the right to counsel. Wisconsin courts have adopted a burden-shifting regime: if a defendant can show that the court in the prior proceeding didn’t do a proper colloquy on the counsel right, the state must then prove that the defendant nevertheless understood the right. But given that priors are often from quite a while ago, it often happens that no transcript of the prior hearing can be produced. What then?
You might think that the state (in its prosecutorial function) ought to bear the harm of the state (in its judicial function) failing to keep adequate records of its own proceedings. But that’s not what the state (our supreme court) thinks: rather, it’s the citizen (you know, the defendant) who must suffer for the state’s laxity. This was the holding of State v. Clark last term: the unavailability of a transcript means there’s no burden shift, and the defendant must somehow prove, without the benefit of much of a record, that he or she wasn’t informed about, and didn’t validly waive, the right to counsel.
This is a permissive pre-trial state’s appeal that was on hold pending Clark. The circuit court applied the pre-Clark law and shifted the burden to the state after Baur supplied an affidavit and testimony that he hadn’t been informed of the potential benefits of an attorney when he pleaded pro se to an OWI-2nd. The circuit court further concluded the state hadn’t met that burden, so ordered that the prior wouldn’t count.
Baur argues that the circuit court actually found that he’d carried any burden to show an invalid waiver, but the court of appeals disagreed that this is what happened, saying it’s clear the lower court “was basing its decision on its understanding—correct at the time—that the State bore the burden of proof by clear and convincing evidence.” (¶18). But because Clark changed the rules about who proved what, the court of appeals does grant Baur’s request to remand for a new hearing. (¶19).