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OWI – Enhancer – Collateral Attack

State v. George McGee, 2010AP3040-CR, District 3, 4/26/11

court of appeals decision (1-judge, not for publication); for McGee: Steven G. Richards; case activity

McGee’s collateral attack on a prior OWI conviction used to enhance his present sentence is necessarily limited to denial of the constitutional right to counsel, ¶5. Although McGee represented himself in the challenged prior, he failed to show that his waiver of counsel was invalid.

¶9        Second, McGee failed to make a prima facie showing that his right to counsel was violated in the 2000 case. Ernst dictates that, to make a prima facie showing, a defendant must set forth specific facts demonstrating that he or she did not knowingly, intelligently, and voluntarily waive the right to counsel.  Ernst, 283 Wis. 2d 300, ¶25. McGee’s motion to collaterally attack the 2000 conviction claimed that his right to counsel was violated in that case because the court’s colloquy did not adequately address one of the Klessig factors—the difficulties and disadvantages of self-representation. However, the motion did not identify specific facts supporting that conclusion. McGee should have described what was said and done during the colloquy, rather than simply asserting the colloquy was deficient.

¶10      Additionally, while the affidavit attached to McGee’s motion stated that McGee “did not understand the difficulties and disadvantages of self-representation” when he waived his right to counsel, McGee did not support this bare assertion with any specific facts or examples. Nor did McGee offer any specific facts to support this assertion during his testimony at the motion hearing.  Moreover, while McGee’s affidavit stated he did not understand an attorney might be able to find defenses to the charges against him, the initial appearance transcript from the 2000 case contradicts that assertion. At the initial appearance, McGee stated he understood that an attorney might be able to point out defenses that McGee himself did not recognize. Again, neither McGee’s affidavit nor his motion hearing testimony offered specific facts or examples to contradict his prior statement that he understood a lawyer might be able to identify defenses. Because McGee failed to point to specific facts demonstrating that he “‘did not know or understand the information which should have been provided’ in the previous proceeding,” he failed to make a prima facie showing that his right to counsel was violated. See Ernst, 283 Wis. 2d 300, ¶25 (quoting Hampton, 274 Wis. 2d 379, ¶46).

Separately, the court indicates that counsel’s failure to “conform to the rules of appellate procedure” (by omitting “an adequate statement of facts relevant to the issues raised,” not to say “the findings and rationale underlying the circuit court’s decision,” and “record citations directing us to this information,” would alone justify affirmance, ¶8. Although the court’s seeming alacrity for imposing fines on counsel for such violations is certainly worthy of note, it must be said that ultimately the client bears the burden of counsel’s derelictions for failure to follow well-settled rules – whether in lost credibility or procedural default. A sanction for violating briefing rules works to the client’s detriment in the final analysis.

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