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OWI-Repeater – Challenge to Prior Conviction

State v. Jeffrey Steinhorst, 2011AP1360-CR, District 4, 11/23/11

court of appeals decision (1-judge, not for publication); for Steinhorst: Steven Cohen; case activity

Steinhorst made a prima facie showing that he did not validly waive counsel in a prior OWI case; therefore, he is entitled to a hearing at which the State must prove proper waiver, by clear and convincing evidence, else the prior conviction may not be used to enhance his current case. No transcript exists for the prior (1997) case. Steinhorst submitted an affidavit asserting that he wrongly believed that, when he entered his plea without benefit of counsel in that case, he could receive probation – because probation was not an option under that scheme, he lacked awareness of the range of penalties.

¶18      The State does not address the awareness-of-penalties issue on appeal.  Before the circuit court the State argued that, while Steinhorst initialed a box on the plea questionnaire form acknowledging that if he were placed on probation violation of the conditions of probation would result in revocation and sentencing after revocation, the form as a whole makes clear to any reader that probation was not part of the plea agreement being presented to the court.  However, the State is not persuasive in arguing that its reading of the questionnaire was necessarily Steinhorst’s understanding at the time of the plea, contrary to his averments.

¶19      Regarding the awareness-of-advantages-of-counsel issue, the State is correct in arguing on appeal that circuit courts are not required “to explain every single nuance about representation to a [d]efendant” and that courts should not “forc[e] someone to accept counsel.” However, Steinhorst does not argue to the contrary on either point.  Instead, his assertion is that he was without any idea that attorneys can provide significant advantages to criminal defendants, and entered a plea with both misunderstandings.

¶22      Because Steinhorst has pointed to specific facts supporting his contentions, the burden shifts on remand to the State to prove by clear and convincing evidence at an evidentiary hearing that Steinhorst’s waiver of counsel was knowingly, intelligently, and voluntarily entered. Ernst, 283 Wis. 2d 300, ¶27.  The State will in essence “be required to show that the defendant in fact possessed the constitutionally required understanding and knowledge which the defendant alleges” he did not have, due to what he claims was an inadequate plea colloquy.  Id., ¶31.  To satisfy its burden, the State may examine the defendant “to shed light on the defendant’s understanding or knowledge of information necessary for him to enter a voluntary and intelligent plea.”  Id., ¶31.  If the State is unable to meet its burden, the defendant will be entitled to “attack, successfully and collaterally, his or her previous conviction.”  Id., ¶27.

The court notes with some frustration that collateral-attack rule operates as a specific exception to the general principle that material absent from an appellate record presumptively supports a trial court ruling: “when a defendant collaterally attacks a prior conviction based on denial of the right to counsel, and the pertinent transcripts are not available, the defendant’s affidavit can alone be sufficient to establish a prima facie case,” ¶20. The court has previously identified transcript retention rules as problematic, ¶21, citing State v. Drexler, 2003 WI App 169, ¶11 n. 6, 266 Wis. 2d 438, 669 N.W.2d 182. However, “At this juncture, it is beyond the authority of this error-correcting court to do anything other than to apply the law,” id. Bear in mind, though, that the relief is purely procedural: entitlement to a hearing on the claim, nothing more. The opinion also contains an efficient summary of collateral attack on a repeater allegation, ¶¶9-13.

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