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OWI – Collateral Attack on Priors

State v. David J. Bucknell, 2010AP833-CR, District 3, 9/30/10

court of appeals decision (1-judge, not for publication); for Bucknell: Rebecca M. Coffee; BiC; Resp.; Reply

A prior conviction, used to enhance a pending charge, may be collaterally attacked on the basis of denial of the 6th amendment right to counsel. Because “it is clear from Bucknell’s testimony at the hearings on his motion that he was aware of his right to be represented by an attorney at the prior proceeding and that he knowingly and intelligently relinquished that right,” his attack fails.

The court appears to reject the idea “that the circuit court must engage in at least some discussion with the defendant regarding his or her waiver of counsel.”

¶12      Although the court did not engage in a discussion with Bucknell regarding his right to an attorney, it is clear from Bucknell’s testimony that he was aware of this right but made a conscious decision to waive that right due to financial constraints. Accordingly, we conclude that Bucknell’s waiver of his right to counsel prior to his guilty pleas to second and third offense OWI was knowing and intelligent.

But: State v. Alan J. Ernst, 2005 WI 107, ¶25, suggests that if he defendant “‘did not know or understand the information which should have been provided’ in the previous proceeding” he or she “did not knowingly, intelligently, and voluntarily waive his or her right to counsel.” Thus, ignorance of knowledge mandated by State v. Klessig, 211 Wis. 2d 194 ¶24, 564 N.W.2d 716 (1997), supports collateral attack, Ernst, ¶2. Not clear from the court’s discussion just how closely it applied this requirement to Bucknell’s testimony.

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