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OWI Enhancer – Collateral Attack – Prima Facie Showing

State v. Casey D. Schwandt, 2011AP2301-CR, District 2, 5/16/12

court of appeals decision (1-judge, not for publication); for Schwandt: Erik C. Johnson; case activity

Schwandt made a prima facie showing that he did not validly waive counsel in a 1997 OWI conviction used as a penalty enhancer.

General Principles.

¶5        A defendant may collaterally attack a prior conviction on the ground that his or her constitutional right to counsel was violated because he or she did not knowingly, voluntarily and intelligently waive that right.  State v. Ernst, 2005 WI 107, ¶25, 283 Wis. 2d 300, 699 N.W.2d 92.  When collaterally attacking a prior conviction, the defendant has the initial burden to make a prima facie showing that his or her constitutional right to counsel was violated.  State v. Baker, 169 Wis. 2d 49, 77, 485 N.W.2d 237 (1992); Ernst, 283 Wis. 2d 300, ¶25.  If the defendant makes a prima facie showing, the burden shifts to the State to prove by clear and convincing evidence that the defendant’s waiver was constitutionally valid.  Baker, 169 Wis. 2d at 77; Ernst, 283 Wis. 2d 300, ¶27.  Whether the defendant has made a prima facie showing is a question of law we review de novo.  Baker, 169 Wis. 2d at 78; Ernst, 283 Wis. 2d 300, ¶26.

¶14      As discussed above, in order to show that a waiver was valid, the record must reflect a deliberate choice to proceed without counsel, including an awareness of the difficulties of proceeding pro se, of the seriousness of the charges and of the range of possible penalties.  Peters, 244 Wis. 2d 470, ¶21 (citing Pickens, 96 Wis. 2d at 563-64).  Schwandt does not allege any deficiency in the court’s colloquy concerning the severity of the charges or the range of possible sentences.  That leaves us with the deliberate choice to proceed without counsel, including the awareness of the disadvantages of proceeding pro se.  ….

¶15      Schwandt does not claim to have been unaware of his right to an attorney before entering a plea, and neither does he deny making a deliberate choice to proceed pro se.  He does aver that he was not aware of certain specific actions that an attorney might have taken on his behalf and further that he was not aware of the possible advantages of seeking representation prior to pleading in an OWI case.  Schwandt cites several examples of ways in which an attorney might have helped him and concludes that had he been aware of these advantages of representation, he would have engaged a lawyer.  Schwandt sufficiently alleges that he was not aware of how an attorney could have helped him, and, had he been so aware, he would have engaged counsel.  Schwandt sets forth a prima facie case that his waiver of the right to counsel in the prior proceeding was not knowing, voluntary and intelligent.  We remand for the State to attempt to prove that, despite Schwandt’s averments, his waiver was knowing, voluntary and intelligent.

¶16      This case is an example of a recurring dilemma faced by the courts with collateral attacks on drunk driving convictions that are more than ten years old.  The drunk driving penalty scheme under Wis. Stat. § 346.65 looks back at the offender’s lifetime for prior violations.  At the same time, the record retention rules allow for destruction of documents as early as five years after the case is closed.  See generally, SCR ch. 72.01.  The interplay produces collateral attacks for which the court has no transcript from the prior proceeding.  See State v. Drexler, 2003 WI App 169, ¶11 n.6, 266 Wis. 2d 438, 669 N.W.2d 182.

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