A defendant may collaterally attack a prior OWI conviction if she was not represented by counsel and did not knowingly, intelligently, and voluntarily waive the right to counsel during that proceeding. Once she points to evidence of this claim, the burden shifts to State to prove a valid waiver. In a split opinion, SCOW now holds that if the transcript of the prior OWI hearing is unavailable, the burden doesn’t shift. The defendant must prove that her right to counsel was in fact violated–which is virtually impossible.
Before a defendant may proceed pro se, the circuit court must conduct a colloquy to make sure she understands the dangers of proceeding without a lawyer. State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997). If the circuit court fails to conduct the colloquy in an OWI case, the defendant has grounds to collaterally attack the conviction. State v. Ernst, 283 Wis. 2d 300 ¶¶22-25, 283 Wis. 2d 300, 699 N.W.2d 92. A successful collateral attack on a prior OWI conviction can reduce the sentence on a later OWI conviction.
In 2018, the State charged Clark with OWI 4th. Clark collaterally attacked two prior OWIs from 1995 and 2002. She submitted an affidavit attesting that she was unrepresented in both proceedings, and the circuit court did not conduct Klessig colloquies. The records, including the transcripts and reporter’s notes, for these proceedings, had been destroyed per SCR 72.01(18). Opinion ¶¶4-6. So Clark could not prove that the circuit court failed to conduct the colloquies, and the State could not prove that it did.
Although Clark is not responsible for the destruction of missing the transcripts, SCOW says “too bad.” It likened her situation to a defendant’s claim that there was a deficiency in his guilty plea. See State v. Bentley, 201 Wis. 2d 303, 309-10, 548 N.W.2d 50 (1996). Once the defendant shows a defect in the plea colloquy, the burden shifts to the State to prove the conviction’s sufficiency. State v. Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986). But if a transcript of the plea hearing is unavailable, Bangert‘s burden-shifting procedure does not apply. State v. Negrete, 2012 WI 92, ¶31, 343 Wis. 2d 1, 819 N.W.2d 749. Opinion, ¶¶14-15.
The dissent points to State v. Baker, 169 Wis. 2d 49, 485 N.W.2d 237 (1992), where SCOW held that even without a transcript of the prior proceeding, a defendant may attack a prior conviction based on an affidavit attesting that he was unrepresented by counsel and did not affirmatively waive his right to counsel. Dissent, ¶¶22-25.
The majority claims Baker does not apply because it was decided before Klessig, Ernst, Bangert, and Negrete. It suggests that Baker is overruled. Requiring the State to retain the record of prior proceedings would place an untenable burden upon it. Opinion, ¶¶18-19.
The dissent argues that Bentley‘s framework should not govern a collateral attack based on a violation of the right to counsel. First, there is a special presumption against the waiver of the right to counsel. Second, the Bentley framework applies when an error raised is extrinsic to the plea colloquy–for example, ineffective assistance of counsel or coercion. A claim that the right to counsel was not validly waived is a defect in the colloquy itself. Opinion, ¶¶41-44.
The dissent stresses that Clark did nothing to cause the destruction of the transcripts from the prior proceedings. They were properly destroyed under the Supreme Court Rules. She and similarly situated defendants must now bear the burden of a problem created by SCOW’s document retention rules, which are out of date given in light of efiling and the electronic storage of data. Indeed, given the large amount of data that can now be stored in a small amount of space, it isn’t a burden for the State to retain records longer. Dissent, ¶¶45-52.