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SCOW to review collateral attacks on prior OWIs where the defendant was denied counsel

State v. Teresa L. Clark, 2020AP1058-CR, bypass granted 4/27/21; case activity

Issue: (adapted from State’s COA brief):

When the State uses a prior OWI conviction to enhance the charge and sentence for a subsequent OWI offense, a defendant may collaterally attack the prior conviction. If the defendant proves that her right to counsel was violated in the prior case, the conviction may not be used to enhance the charge and sentence in the new case. Does the burden shift to the State when there is no transcript available to show that the circuit court violated the defendant’s right to counsel?

Before a circuit court may accept a defendant’s waiver of counsel it must conduct a personal colloquy to determine whether the defendant understands her right to counsel and is waiving it knowingly, intelligently, and voluntarily. State v. Ernst, 2005 WI 107, ¶ 20, 283 Wis. 2d 300, 699 N.W.2d 92.

An OWI defendant who makes a collateral attack on a prior OWI conviction must show that in the prior case the court failed to give her the information required to make a valid waiver of counsel.  See Iowa v. Tovar, 541 U.S. 77, 92 (2004). If she alleges that she did not understand the information that the court failed to give her, the burden shifts to the State to prove by clear and convincing evidence that the defendant knew and understand that information despite the court’s failure. Ernst, ¶ 25 (citing State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986) ).

What happens when there is no transcript and no evidence that the circuit court failed to give the defendant the information necessary to make a knowing waiver? Does the defendant’s allegation of an invalid waiver still shift the burden of proof to the State? The State complains that without a transcript it cannot carry its burden of proof so it shouldn’t not have to.

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