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“Supporting” documents actually undermined OWI collateral attack

State v. Jason S. Witte, 2015AP795-CR, 5/26/16, District IV (one-judge decision; ineligible for publication); case activity (including briefs)

Witte, charged with OWI-4th, attacked a 2004 prior, alleging that did not have, and did not validly waive, counsel. The circuit court concluded that Witte’s affidavit and the documents from the 2004 proceeding did not make out a prima facie case that Witte was denied counsel, and the court of appeals now agrees.

It’s undisputed that Witte did not have a lawyer in the 2004 case; the question is whether he knowingly, voluntarily and intelligently waived his right to one. Under State v. Ernst, 2005 WI 107, ¶25, 283 Wis. 2d 300, 699 N.W.2d 92, this means Witte had to “point to facts that demonstrate that he … did not know or understand the information which should have been provided in the previous proceeding and, thus, did not knowingly, intelligently, and voluntarily waive his or her right to counsel.”

One of the things a defendant must know in order to validly waive counsel is the “general range of penalties that could have been imposed on him.” Id., ¶14. Witte alleged that he did not know this information; the court responds that

he was provided a copy of the criminal complaint, which set forth the range of penalties, and that he simply failed to read it carefully before he entered his plea. In addition, the court minutes sheet of the initial hearing indicate that Witte waived the reading of the complaint. Plainly, Witte would have learned the range of penalties he faced by pleading to second offense OWI had he permitted the court to read the complaint in open court.


So Witte should have know the range of penalties, even if he didn’t. “Should have known” isn’t the same thing as “knowing.” Moreover, failing to apprise oneself of the potential penalty before pleading seems like a red flag re: the knowingness and intelligence of the decision to forego counsel, but this doesn’t trouble the court. In any case, Witte has a bigger problem, in the form of a form:

We begin by noting that Witte does not argue that the circuit court failed to conduct a proper waiver of counsel colloquy or that the colloquy was otherwise infirm. Fatal to Witte’s claim that he was denied the right to counsel, Witte attached a waiver of right to lawyer form that he completed and signed on the day of the plea hearing in the 2004 case. In that form, Witte acknowledged that he had a right to be represented by counsel at any stage of the proceedings, that he understood the advantages of representation by counsel, that he was capable of representing himself in that case, and that he “voluntarily, freely and intelligently waive[d his] right to have a lawyer at [that] time.” Witte’s weak, conclusory, and self-serving averments in his affidavit fall apart in light of a record that clearly establishes that Witte was aware of the right to counsel, the advantages of having counsel, and with knowledge of this information, chose to proceed with the plea hearing without counsel.

(¶15 (citation omitted)).

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