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OWI – Repeater – Collateral Attack

State v. Traci L. Scott, 2011AP2115-CR, District 2, 3/21/12

court of appeals decision (1-judge, not for publication); for Scott: Rex Anderegg; case activity

The court rejects Scott’s challenge to a prior OWI conviction, concluding that she aware of the range of punishments, dangers of self-representation, etc. General test recited:

¶2        A defendant facing an enhanced sentence based on a prior conviction may only collaterally attack that prior conviction based on the denial of the constitutional right to counsel.  See State v. Hahn, 2000 WI 188, ¶4, 238 Wis. 2d 889, 618 N.W.2d 528.  Thus, a person charged with violating Wis. Stat. § 346.63 may collaterally attack a prior OWI conviction that is being used as a sentence enhancer under Wis. Stat. § 346.65.  See State v. Foust, 214 Wis. 2d 568, 572, 570 N.W.2d 905 (Ct. App. 1997).

¶3        Under State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997), the circuit court must engage in a four-part colloquy with the defendant regarding the decision to waive the right to counsel.  Through this colloquy, the circuit court must ascertain that the defendant:  1) has made a deliberate choice to proceed without counsel, 2) is aware of the difficulties and disadvantages of self-representation, 3) is aware of the seriousness of the charges against him or her, and 4) is aware of the general range of possible punishments.  When mounting a collateral attack, the defendant must do more than allege a defective plea colloquy.  “[T]he defendant must make a prima facie showing that his or her constitutional right to counsel in a prior proceeding was violated.”  State v. Ernst, 2005 WI 107, ¶25, 283 Wis. 2d 300, 699 N.W.2d 92.  A valid attack requires that the defendant set forth facts demonstrating that he or she “did not know or understand the information which should have been provided.”  Id.  If the defendant makes a prima facie showing, the burden shifts to the State to show, by clear and convincing evidence, that the defendant’s plea was knowing, intelligent and voluntary.  Id., ¶27.  Whether a party has met the burden of proof is a question of law.  See State v. Hansen, 168 Wis. 2d 749, 755, 485 N.W.2d 74 (Ct. App. 1992); Spindler v. Spindler, 207 Wis. 2d 327, 338, 558 N.W.2d 645 (Ct. App. 1996).

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