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Enhancement – OWI Prior, Collateral Attack – Procedure

State v. Alan J. Ernst, 2005 WI 107, on certification
For Ernst: Jeffrey W. Jensen

Issue1Whether violation of the standards mandated by State v. Klessig, 211 Wis. 2d 194 ¶24, 564 N.W.2d 716 (1997) for valid waiver of counsel supports a collateral attack on a prior conviction.

¶25      … For there to be a valid collateral attack, we require the defendant to point to facts that demonstrate that he or she “did not know or understand the information which should have been provided” in the previous proceeding and, thus, did not knowingly, intelligently, and voluntarily waive his or her right to counsel. See Hampton, 274 Wis.  2d 379, ¶46 (citing Bangert, 131 Wis.  2d at 274-75).  Any claim of a violation on a collateral attack that does not detail such facts will fail.

¶26      Applying the above principles to the facts of this case, we hold that Ernst’s attempt to initiate a collateral attack failed. … Ernst made no mention of specific facts that show that his plea was not a knowing, intelligent, and voluntary one.  Instead, Ernst simply relied on the transcript and asserted that the court’s colloquy was not sufficient to satisfy Klessig. … Since this was a collateral attack, the lack of specific facts resulted in a failure to establish a prima facie case that Ernst did not knowingly, intelligently, and voluntarily waive his right to counsel. …

Issue/Holding2If the defendant does make a prima facie showing, then the procedures authorized by State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986) apply: the burden shifts to the State to prove by clear and convincing evidence that waiver of counsel was knowing, intelligent and voluntary, ¶27; the defendant may be questioned at the ensuing evidentiary hearing, ¶¶30-31; any 5th amendment claim of privilege against testifying at such a hearing is waived by putting the matter of knowledge of rights at issue, ¶33; if the defendant refuses to testify, the trial court may draw an adverse inference, ¶35.

As a casual aside, the court asserts, ¶33: “To make a prima facie showing a defendant is required to point to facts that demonstrate that he or she did not knowingly, intelligently, and voluntarily waive his or her constitutional right to counsel. An affidavit from the defendant setting forth such facts would be necessary, in order to establish a prima facie case.” Assuming that this is not a slip (and it would be very unwise to make such an assumption), this requirement of an affidavit from defendant substantially deviates from current pleading practice: contrast this explicit requirement of an affidavit, with past indications that the defendant need “merely allege he or she did not know or understand the information that should have been provided at the plea hearing,” State v. John A. Jipson2003 WI App 222, 2003 WI App 222, ¶7, 267 Wis. 2d 467, 671 N.W.2d 18, citing Bangert, 131 Wis. 2d at 268-69; and to like effect, see generally, State v. Corey J. Hampton, 2004 WI 107. The court currently has on its calendar a Bangert sufficiency-of-pleading case, 2003AP2662-CR, State v. James E. Brown, rev. gr. 6/1/05 – perhaps that case will provide some clarification. In the meantime, though, you ignore ¶33 at your peril.

One additional point worth mentioning: can the State, under the guise of wide-open cross rule, examine the defendant on a range of incriminatory matters and then use that material at the ensuing trial? The court’s broadly stated waiver language is certainly worrisome if taken at face value. Fortunately, you don’t have to take the language at face value, because § 901.04(4) explicitly limits the wide-open cross rule when the defendnat is testifying as to a “preliminary matter,” as this surely is. And though it is therefore not necessary to go further, note as well the court’s express analogy to State ex rel. Goodchild v. Burke, 27 Wis. 244, 133 N.W.2d 753 (1965), and its recognition that “the defendant may take the stand and testify for the limited purpose of making a record of his version of the facts and circumstances” of the matter in controversy, ¶31 n. 10. Stress, of course, on “limited purpose,” which ought to be something of a counter-weight against the wide-open cross rule.


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