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OWI – successful collateral attack on prior uncounseled conviction upheld on state’s appeal

State v. Joseph L. Hernandez, 2012AP2148-CR, District 2, 2/27/13; court of appeals decision (1-judge, ineligible for publication); case activity

The trial court properly found that Hernandez made a prima facie showing that a prior OWI conviction was invalid despite his poor recollection of details of the prior proceeding, distinguishing State v. Hammill, 2006 WI App 128, ¶11, 293 Wis. 654, 718 N.W.2d 747 (“a defendant who ‘simply does not remember what occurred at his plea hearing’ does not make a prima facie showing”):

¶10      Although this case somewhat resembles Hammill in that it involves a defendant’s less than perfect memory of the earlier proceedings and a sparse record, Hernandez has done what Hammill did not: he has affirmatively asserted that he did not knowingly, intelligently, and voluntarily waive his right to counsel. First, he submitted an affidavit stating that “[he] was neither advised, nor was [he], in fact, aware that a lawyer may have been able to discern matters beyond [his] capacity such as defenses, objections or constitutional arguments.” He also averred that he was not advised of or aware of various other constitutional rights.

¶11      Next, in addition to his affidavit, Hernandez testified at the evidentiary hearing that he had not filled out any paperwork or signed any documents before pleading no contest. He described the plea hearing as follows: “[The judge] asked me what I plead. I said, ‘No contest.’ And then he says, ‘Well, then you got 30 days in Huber.’” Hernandez repeatedly denied having an understanding of the range of possible punishment, and he denied that the trial court addressed his decision not to obtain counsel prior to his no contest plea. Based on Hernandez’s affirmative denials that he either understood his rights or had them explained to him before the no contest plea, we agree with the trial court that he made a prima facie case that his waiver of the right to counsel was not knowing, intelligent and voluntary.

The trial court also appropriately found the state had not proven Hernandez’s waiver was valid:

¶12      …. At the evidentiary hearing, the State called Hernandez adversely as the only witness. As we already explained, he testified that he was not given the information required by Klessig regarding the range of possible punishment or the disadvantages of self-representation. The trial court found that while aspects of Hernandez’s testimony were unreliable, the relevant portion was credible because it was corroborated by a lack of any evidence in the 2000 court record that the information had been given. Those findings of fact and credibility determinations are supported by the record so we will not disturb them.

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