On Point

State v. Dionicia M., 2010 WI App 134; for Dionicia M.: Andrew Hinkel, SPD Madison Appellate

Recorded Confessions

The juvenile was in custody when she was directed to the locked back seat of a patrol car so that she could be transported back to school after being reported truant; and, because it was feasible under the circumstances to record her ensuing statement, failure to do so rendered it inadmissible.

¶10      The juvenile court concluded that Dionicia was in custody while in the back seat of Kraeger’s patrol car, and we agree. Kraeger sought out Dionicia at the school’s request because she was truant. He told her he intended to take her back to school, and he directed her to the locked back seat of his patrol car. Once she was in the locked car, he questioned her about her involvement in a crime. A reasonable person, particularly a fifteen-year-old, would not feel free to leave the back of a patrol car under these circumstances. From the time Dionicia entered Kraeger’s patrol car, she was in custody.

…

¶14      Contrary to the State’s argument, the mere fact that Kraeger did not have a recording device in his squad car did not make it unfeasible for him to record the interrogation. “Feasible” in this context is not a synonym for “effortless.” Although Kraeger may not have been capable of recording the initial conversation while in the squad car, nothing prevented him from waiting to question Dionicia until after the short time it took to return to school. As Dionicia points out, if the police are excused from complying with Jerrell C.J. whenever the slightest effort is required to record an interrogation, the Jerrell C.J. rule becomes meaningless.

The court also rejects the idea that the juvenile’s subsequent, recorded statement is admissible: “Jerrell C.J. does not allow the admission of partially recorded interrogations of juveniles. … The custodial interrogation of Dionicia, which began in the squad car and continued in the school office, was not recorded in full. Therefore, the juvenile court should have suppressed the interrogation in its entirety,” ¶16.

Sentence Credit – Predisposition Secure Detention

Time spent in predisposition secure detention supports disposition credit.

¶6        … During the pendency of the case, Dionicia had been placed in shelter care.  She failed to return to shelter care on the evening of March 5, 2009. As a result, she was placed in secure detention from March 6 to March 10. …

…

¶21      … Were it not for Dionicia’s original course of conduct—the battery—she would not have been placed in shelter care, and there would have been no authority to confine her in secure detention for failing to return to shelter care. Her time in secure detention was therefore connected to the original course of conduct, since that conduct provided the legal authority to detain her. As a result, WIS. STAT. § 938.34(3)(f)1. entitles Dionicia to credit, just as WIS. STAT. § 973.155(1)(a) entitles an analogous adult defendant to credit.

State v. Jacquese Franklin Harrell, 2010 WI App 132; for Harrell: Michael S. Holzman; BiC; Resp.; Reply

Terry Frisk – House

The police had both reasonable suspicion that Harrell had committed a violent crime, and consent to be in his house to question him. Therefore, police inspection of a chair for possible weapons before allowing Harrell to sit in it, leading to discovery and seizure of a gun, was permissible.

¶10       Terry v. Ohio, 392 U.S. 1, 27–28 (1968), recognized that under the Fourth Amendment’s ban against unreasonable searches and seizures, a law-enforcement officer may search a person to ensure the officer’s safety if the officer has reason to believe that the person may have committed a crime and that the person may be “armed and dangerous.” “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id., 392 U.S. at 27. Although Terry does not permit officers to enter houses without authorization in order to investigate suspicious activity, State v. Stout, 2002 WI App 41, ¶15, 250 Wis. 2d 768, 780–781, 641 N.W.2d 474, 479, it does permit them to protect themselves from threats of immediate danger once they are lawfully in a house, id., 2002 WI App 41, ¶24, 250 Wis. 2d at 786–787, 641 N.W.2d at 482 (“These safety concerns may arise wherever an officer legitimately encounters an individual, whether in a public place or in a private residence or hotel room.”). Thus, if officers have a “reasonable suspicion” that a person may have access to a weapon, a limited search is permitted. Id., 2002 WI App 41, ¶26, 250 Wis. 2d at 788, 641 N.W.2d at 482. This is especially true, somewhat paradoxically, in the home, where “unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s ‘turf.’” Maryland v.Buie, 494 U.S. 325, 333 (1990). Thus, the police may lawfully search an area from where an arrestee might grab a weapon, but not beyond it. Chimel v. California, 395 U.S.752, 763, 768 (1969). Given Terry’s recognition of the need for officer safety, this analysis also applies where the officers are lawfully in the home and are reasonably concerned that the person to whom they are talking can do them harm, even though he or she has not yet been arrested. See Terry, 392 U.S. at 27; Stout, 2002 WI App 41, ¶¶24–26, 250 Wis. 2d at 786–788, 641 N.W.2d at 482.

¶11      Harrell does not dispute that the officers went to where they believed Harrell was staying because they suspected that he was involved in the Jackson shooting. Thus, the two aspects of Terry were satisfied:  (1) the officers suspected that Harrell had committed a violent crime; and (2) reasonable prudence dictated that they keep Harrell from having possible access to a gun….

The seizure of the gun was permissible under a separate rationale. Before finding the gun, the police found cocaine in another chair. Therefore, “they could also legitimately search the area near Harrell as an incident to Harrell’s pending arrest, as well as to ensure their safety when they directed him to sit in the second chair,” ¶12.

Ineffective Assistance – Prejudice

Various asserted deficiencies, including: failure to impeach a witness with a prior conviction for disorderly conduct, with his arrest for the crime at issue, and his state of intoxication; and failure to object to prior inconsistent statements, did not either singly or cumulatively prejudice the defense, ¶¶16-22.

State v. Christopher D. Jones, 2010 WI App 133; for Jones: Amelia L. Bizzaro; for Amicus, Innocence Network: Jerome F. Buting; BiC; Resp.; Reply; Amicus Br.

Evidence – Daubert – Bullet Traced to Particular Gun

The court rejects “a blanket rule barring as a matter of course all testimony purporting to tie cartridge cases and bullets to a particular gun”:

¶22 Unlike in the federal system, where the trial judge is a powerful gatekeeper with respect to the receipt of proffered expert evidence, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), Wisconsin gives to the trial judge a more-limited role:  the trial judge “‘merely require[s] the evidence to be ‘an aid to the jury’ or ‘reliable enough to be probative.’” State v. Walstad, 119 Wis. 2d 483, 519, 351 N.W.2d 469, 487 (1984) (quoted source and one set of quotation marks omitted). Simply stated, this is a “relevancy test.” Ibid. Walstad explained:

In a state such as Wisconsin, where substantially unlimited cross-examination is permitted, the underlying theory or principle on which admissibility is based can be attacked by cross-examination or by other types of impeachment. Whether a scientific witness whose testimony is relevant is believed is a question of credibility for the finder of fact, but it clearly is admissible.

Ibid.[3] This is still our law today. State v. Fischer, 2010 WI 6, ¶36, 322 Wis. 2d 265, 293, 778 N.W.2d 629, 642 (“We, therefore, decline to adopt a Daubert-like approach to expert testimony and make the judge the gatekeeper.”), cert. denied, ___ U.S. ___, 130 S. Ct. 3480 (2010).

True, Wisconsin declines to follow Daubert. Nonetheless, as the court acknowledges (¶23), in at least a couple of instances the supreme court has indeed imposed a blanket rule of exclusion, polygraph results and diminished capacity. The court essentially reads these holdings as outliers (if in more elegant phrasing): “those decisions are essentially islands in the law because the supreme court has declined to use public-policy criteria to truncate a trial court’s discretion in receiving or excluding evidence,” id. Perhaps. But that leaves us with an admissibility regime superficially arbitrary, at least at the margins. As City of  West Bend v. Richard A. Wilkins, 2005 WI App 36, ¶¶23, 24, baldly put it, “Wisconsin, unlike the federal courts, considers the reliability of scientific evidence a question of weight and credibility for the trier of fact to decide. … The reliability of this evidence was totally irrelevant for purposes of its admissibility.” And yet, polygraph testing is off-limits precisely because the court was “not persuaded that the reliability of the polygraph is such as to permit unconditional admission of the evidence,” State v. Dean, 103 Wis. 2d 228, 278­–279, 307 N.W.2d 628 (1981). And the bar on diminished capacity evidence “is premised on Wisconsin’s skepticism about the reliability of psychiatric opinion evidence offered to show a causal link between a defendant’s mental disease and the capacity to form an intent to commit the crime alleged,” Morgan v. Krenke, 232 F.3d 562, 564 (7th Cir. 2000). Reliability isn’t for the gatekeeper — except when it is. No wonder that the author of Jones, also the author of a leading evidence treatise, makes no stab at some grand unifying theory of admissibility. Outliers need only be identified as such, not explained, for they are by their nature ineffable.

The “infirmities of gun-toolmark evidence” is an issue left, therefore, to the trier of fact. Which assumes, of course, that the issue is joined. Jones argues that trial counsel’s failure to do just that amounted to ineffective assistance, but the court finds the evidence of guilt so overwhelming that any deficient performance (something the court doesn’t reach) couldn’t have been prejudicial, ¶26.

Discovery – Witness Notes

¶28 Jones asserts that the prosecutor in his case did not comply with Jones’s pre-trial discovery request for “any and all relevant written or recorded statements” of its witnesses because the State only gave Jones the technician’s final report and not his “notes.” He contends that this violated the State’s obligation under Wis. Stat. § 971.23.  Section 971.23(1)(e), to which Jones apparently refers, requires, consistent with Jones’s pre-trial phrasing of his demand, that the State give the defendant “[a]ny relevant written or recorded statements” by any witness the State intends to call. (Emphasis added.) The key, of course, is, as our added italics indicate, “relevant.” As Jones concedes, he now has those notes. He has not, however, pointed to anything in those notes that he contends was “relevant” to his defense. Thus, Jones has not shown a discovery violation. …

Briefs – Argumentation and SCRs

Unsupported assertions may be considered “beyond the pale of acceptable argument” and violative of various Supreme Court Rules of Professional Conduct, ¶29.

Closing Argument

Failure to object to closing argument waived any potential challenge to the prosecutor’s reference to the victim’s special-needs status, and the challenge must therefore be examined under ineffective-assistance strictures. Given the overwhelming evidence of guilt, any error was non-prejudicial (the court stressing that closing argument must “so infect[] the trial with unfairness as to make the resulting conviction a denial of due process,” ¶¶31-32.

Ineffective Assistance – Failure to Investigate

¶33 Jones’s claim that his lawyer represented him ineffectively also concerns the testimony of Percy Morgan, a person who was in the jail with Jones before Jones’s trial. As we have seen, Morgan testified on cross-examination that Jones “had got a tattoo while he was in jail like with Killer Chris on his arm and like after killing a person.” Jones contends that he does not have a tattoo, and that his lawyer was ineffective for not determining “if Jones had the tattoo Morgan described.” At sentencing, Jones did not have that tattoo. As the State points out, it is questionable whether a jail inmate could get a permanent “tattoo.” Putting that aside, however, Jones was in court when Morgan testified. If Jones did not have the tattoo on that day, he could have easily told his trial lawyer. Thus, Jones’s contention that his lawyer was ineffective for not investigating something that Jones could have revealed to him at the time is wholly without merit. See State v. DeLain, 2004 WI App 79, ¶18, 272 Wis. 2d 356, 368, 679 N.W.2d 562, 568 (lawyer not ineffective for not pursuing something that defendant knew but did not reveal), aff’d, 2005 WI 52, 280 Wis. 2d 51, 695 N.W.2d 484. …

Separately: counsel’s failure to utilize a pretrial suppression hearing transcript to impeach an eyewitness wasn’t prejudicial, where counsel “fully cross-examined [the witness] on the identification procedure nevertheless,” such that counsel could have done nothing differently even if he had had the transcript, ¶¶35-37.

Newly Discovered Evidence

Newly discovered evidence must support a reasonable probability of juror doubt as to guilt; the evidence of guilt here is so overwhelming that a claim that one of the witnesses admitted he was going to lie to inculpate Jones, even if true, wouldn’t have affected the outcome, ¶40.

2nd Circuit court of appeals decision

Federal Habeas (28 U.S.C. § 2254) – Filing Deadline – Brady Claim

The 2254 filing deadline is one year from the date the state-court conviction becomes “final,” subject to certain exceptions, including one which restarts the limitation period from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence,” 28 U.S.C. § 2244(d)(1)(D). Friedman’s plea-based conviction became final in 1989, but he became aware of previously undisclosed exculpatory evidence on January 10, 2003, when he viewed a documentary about his case, Capturing the Friedmans. This development arguably restarted the deadline. However, instead of filing a 2254 petition within one year of that date, Friedman filed a post-judgment motion in state court. After that motion was denied, he filed the 2254 petition, but by then he was beyond the “restarted” 1-year deadline and the petition is therefore dismissed as untimely.

Moreover, even if timely, the petition would still fail on the merits: the undisclosed exculpatory evidence related to impeachment of witnesses, and in United States v. Ruiz, 536 U.S. 622 (2002), “the Supreme Court held that the failure to disclose such information prior to a guilty plea does not violate the Due Process Clause.” (The court reserves the possibility that Ruiz is limited to treatment of impeachment, as a subset of exculpatory material.)

Don’t be misled by the dry tone of this post — 2254 habeas analysis inexorably tugs in that direction — besides which, you probably don’t need reminder that the deadline is enforced with strictness, sometimes even with alacrity. And the mere fact that this a celebrated case in its own right, because of the Academy Award-nominated documentary, isn’t alone enough to justify such further reminder. But even if you aren’t familiar with the facts, you can’t read the opinion without becoming appalled. Which is, not incidentally, the reaction of the the 2nd Circuit, whose enforcement of the deadline is so unusually and obviously reluctant as to compel notice. Odds are not only that Jesse Friedman is actually, but that he was railroaded by the prosecutor and, worse, by the judge. As to the latter, a few words will be necessary, but first the 2nd Circuit’s remarkable reaction to his procedural plight. After reciting the prosecutor’s continuing ethical obligation to make right a wrongful conviction, the court observes:

The record here suggests “a reasonable likelihood” that Jesse Friedman was wrongfully convicted. The “new and material evidence” in this case is the post-conviction consensus within the social science community that suggestive memory recovery tactics can create false memories and that aggressive investigation techniques like those employed in petitioner’s case can induce false reports. Indeed, it is not even clear from the record that Assistant District Attorney Onorato was aware of the suggestive questioning techniques that were used by the Nassau County police.¹⁰ More importantly, the record does not speak to whether the then-District Attorney of Nassau County, whose principal role was administering and overseeing the activities of one of the largest such offices in the United States,¹¹ was aware of the techniques used by the Nassau County detectives, who were not members of his staff.

Only a reinvestigation of the underlying case or the development of a complete record in a collateral proceeding can provide a basis for determining whether petitioner’s conviction should be set aside. We hope that, even if she continues to oppose relief in collateral legal proceedings, the current Nassau County District Attorney, who was not responsible for the investigation and prosecution of Jesse Friedman, will undertake the kind of complete review of the underlying case suggested in the Comment to Rule 3.8.

…

In sum, an appellate court faced with a record that raises serious issues as to the guilt of the defendant and the means by which his conviction was procured, yet unable to grant relief, is not obligated to become a silent accomplice to what may be an injustice.

Habeas practitioner Jonathan Kirschbaum rightly calls the decision “truly amazing.” Agreed, not least because the court immediately got the attention of the local prosecutor (not the one who railroaded Friedman), who has agreed to reinvestigate the case. Sometimes moral suasion works.

So the court recognized that Friedman appears to have been innocent — why couldn’t it do anything about it? “The Supreme Court has not finally resolved the issue of whether there is a federal Constitutional right to be released upon proof of actual innocence.” And, because habeas relief can be granted only where “clearly established” Supreme Court precedent has been misapplied in some fashion, a “stand-alone” claim of innocence is a non-starter. This doesn’t mean, however, that the state court can’t, or won’t, grant collateral-attack relief on such a basis. Indeed, Wisconsin courts have granted relief on the basis of actual innocence, as the work of these fine folks attests.

Several remaining observations. The idea that the suppression of exculpatory evidence is rendered meaningless by a guilty plea is somewhat jarring (is a plea knowing and intelligent if not based on an accurate risk-assessment?) but Ruiz leaves no room for argument, at least with respect to impeachment evidence. Indeed, our supreme court adopted that rule in State v. Kevin Harris, 2004 WI 64, ¶23 (“We therefore hold, based on the United States Supreme Court decision in Ruiz, that due process does not require the disclosure of material exculpatory impeachment information before a defendant enters into a plea bargain.”), albeit while declining to overrule court of appeals precedent that “purely exculpatory information” must be disclosed notwithstanding guilty plea, id., n. 15. Harris went on to hold that non-disclosure of exculpatory impeachment material violates the discovery statute, notwithstanding entry of guilty plea, and therefore does support plea-withdrawal on statutory grounds. Net result? In Wisconsin, on a claim of failure to disclose impeachment evidence, you can obtain plea-withdrawal on (§ 809.30) direct review, but not on (§ 974.06) collateral attack. If non-disclosure relates to “purely” exculpatory material then § 974.06 attack on a guilty plea is supported.

Friedman’s isn’t merely a false conviction, but a false confession, case. If you’ve seen enough of  drearily repetitive true-crime cable tv, then you know how common it is for a juror to say something like, Well, I’d never confess to something I didn’t do especially not something so horrendous. And Friedman didn’t merely confess, he made a judicial confession, which is to say, in view of the entire world he solemnly confessed in open court — to something he apparently didn’t do. Why? For one thing, the prosecutor threatened to lodge “many more charges” if he didn’t. Permissible under Bordenkircher v. Hayes and the stuff of daily trench work in most courthouses. (Read the opinion, though, to get a sense of a howling pitchfork mob baying at Friedman’s heels.) No, what’s really remarkable is the role played by the trial judge, Abbey Boklan, only too glad to slip back into the role she once occupied as prosecutor. Boklan acknowledged a local “media frenzy,” yet not only did she deny change of venue she fed the frenzy by allowing the proceedings to be televised for the first time in local history. She candidly acknowledged prejudging Friedman’s guilt, and brazenly told defense counsel that if Friedman “went to trial, she intended to sentence him consecutively on every count.” Friedman never had a chance, not with the mob or, at the risk of repetition, the judge. And you can probably guess what happened: he was denied parole multiple times because he wouldn’t admit to guilt during “therapy” and, when finally paroled, Boklan classified him as a “violent sexual predator,” triggering sex offender registration requirements. Here,then, is the court’s efficient summary of why Friedman would plead guilty to something he didn’t do:

Petitioner has come forward with substantial evidence that flawed interviewing techniques were used to produce a flood of allegations, which the then-District Attorney of Nassau County wrung into over two hundred claims of child sexual abuse against petitioner. Petitioner never had an opportunity to explore how the evidence against him was obtained. On the contrary, the police, prosecutors, and the judge did everything they could to coerce a guilty plea and avoid a trial. Thus, with the number of counts in the indictments and Judge Boklan’s threat to impose the highest conceivable sentence for each charge, petitioner faced a virtually certain life sentence if he was convicted at trial. And the likelihood that any jury pool would be tainted seemed to ensure that petitioner would be convicted if he went to trial, regardless of his guilt or innocence. Nor could he have reasonably expected to receive a fair trial from Judge Boklan, the former head of the Nassau County District Attorney’s Sex Crime Unit, who admitted that she never had any doubt of the defendant’s guilt even before she heard any of the evidence or the means by which it was obtained. Even if innocent, petitioner may well have pled guilty.

Any number of people may have made their reputations on Friedman’s back, Boklan not least of all. Will the final chapter diminish those reputations? We will see.

State v. Jason M. Bruckbauer, 2009AP1823-CR, District 4, 8/19/10

court of appeals decision (3-judge, not recommended for publication); for Bruckbauer: Dennis Schertz; BiC; Resp.; Reply

Harmless Error

Any error in admission of a pretrial ID of Bruckbauer from a photo array was harmless, where: the challenged ID didn’t directly implicate him in the homicide but merely placed him at the scene; multiple witnesses testified to hostility between him and victim, including a veiled threat made by Bruckbauer; Bruckbauer was in possession of the murder weapon, which smelled of gunpowder as if recently fired the night of the homicide and which was later disposed of by his wife; Bruckbauer confessed to a cellmate, ¶¶14-20.

The court lays out the test for harmless error at ¶¶12-13.

Jury View

The trial court did not erroneously exercise discretion in authorizing a jury view of the crime scene at a different time of day than the crime occurred.

¶25 Although the court in Herrington held that it is not improper for a jury view to be held when lighting conditions are similar to those present when the offense at issue took place, it did not hold that it is improper for the court not to hold a jury view when the lighting conditions are similar and Bruckbauer does not cite to any legal authority which indicates a circuit court is compelled to order a jury view of the scene of an offense under lighting conditions identical to, or even similar to,  those present when the offense at issue occurred.

¶26 The purpose of a jury view is to enable the jury to understand the evidence introduced.  Haswell v. Reuter, 171 Wis. 228, 233, 177 N.W. 8 (1920). The circuit court here explained that the jury view in this case would provide the jury “some sense of distance, placement, [and] a spatial view of the scene.” The circuit court also noted the difficulty in exactly reproducing the lighting conditions from October, the month Linder was murdered, at the time of trial, which took place in the months of January and February. The court stated that it could be explained to the jury during trial that lighting conditions at the time of their view were somewhat different than those at the time of Linder’s murder. An erroneous exercise of discretion will not be found where the circuit court sets forth a reasonable basis for its determination. State v. McCall, 202 Wis. 2d 29, 35, 549 N.W.2d 418 (1996). We cannot say here that the court erroneously exercised its discretion by denying Bruckbauer’s request to have the jury view the scene of the crime at the approximate time the crime occurred.

State v. Jaquita B., 2010AP1215, District 1, 8/17/10

court of appeals decision (1-judge, not for publication); for Jacquita B.: Jane S. Earle

Termination of Jaquita’s parental rights to her two children upheld, where the record shows the trial court properly considered: the children’s likelihood of adoption; permanency of a sustaining care contract in preference to guardianship;  Jaquita’s failure to offer stability to the children; and the11-year-old’s desire to return to Jaquita (the last rejected as not in the best if either child because it would lead to their separation form each other).

State v. Randall L. Wegener, 2010AP452-CR, District 1, 8/18/10

court of appeals decision (1-judge, not for publication); for Wegener: Kirk B. Obear; BiC; Resp.

Reasonable Suspicion – Traffic Stop

Inclement winter weather didn’t obviate the need to stay within the proper lane, such that crossing the center line, even briefly a few times, provided reasonable suspicion to perform a traffic stop.

¶6        Wegener argues that Fabry did not have reasonable suspicion to conduct a traffic stop because he was driving appropriately for part of the time he was followed and blames his lack of control of his vehicle on the snowy weather conditions. Wegener’s ability to drive appropriately for part of the two miles the deputy was following him, however, does not negate the fact that Fabry observed him crossing the center line, even if only briefly a few times. See State v. Popke, 2009 WI 37, ¶26, 317 Wis. 2d 118, 765 N.W.2d 569 (even if not erratically driving inside or outside of designated lane, a momentary swerve over the center line gives rise to reasonable suspicion to conduct a traffic stop). The circuit court found that the weather did not excuse Wegener’s lane deviations:

The road conditions, weather, low snow condition, low blowing snow, minimal blowing snow, none of those things, in my view, would provide a legal basis to deviate from his lane of traffic. As the officer testified, he had no problems seeing. I think that would be true for the defendant as well.

¶7        Based on the above, we conclude that the officer had reasonable suspicion to conduct a traffic stop of Wegener’s vehicle. Officer Fabry was justified in believing that Wegener was impaired when he saw him operating his vehicle left of center several times at 1:00 a.m. in violation of Wis. Stat. §§ 346.05(1) and 346.13(1). [5] See Post, 301 Wis. 2d 1, ¶13.

Popke and Post involved OWI stops: Popke veered wildly between median and curb; Post weaved across travel and parking lanes, creating “a discernible S-type pattern.” In neither case, though, could weather have been considered a contributing factor. But the trial court’s findings, recited above, indicate that the snow condition could have had no more than minimal impact on Wegener’s driving.

OWI – Habitual Offender – Collateral Attack

The trial court’s findings of fact, after conducting an evidentiary hearing, establish that Wegener properly waived counsel in a prior OWI case, hence the conviction in that case can be used to enhance the current one.

¶16      Wegener’s challenge to the circuit court’s finding is essentially that the State failed to prove that he understood the role an attorney would play in the context of an OWI proceeding, i.e., that the attorney could challenge the admissibility and accuracy of chemical test results and the administration of field sobriety testing; question the State’s compliance with the Implied Consent Statute, Wis. Stat. § 343.305; examine the application of a “curve defense”; and challenge reasonable suspicion. However, the law does not require this level of specificity. The record reflects that, at the time of his 2002 plea, Wegener was aware that he had the right to an attorney. Wegener was aware of his Miranda[9] rights, including the right to counsel, before going to court. He filled out a “survey of rights” form, which he acknowledged contained a constitutional right to an attorney. He agreed that he took the time he needed to feel comfortable signing the form. He was read, and he understood that there was, a range of penalties, and he understood that the judge did not have to follow the guideline recommendations when sentencing. He observed that other defendants appeared with attorneys, and he was familiar with the function of attorneys and that they “help you.” His testimony supports the court’s finding that Wegener understood that lawyers are advocates who work on their client’s behalf for better outcomes, in both civil and criminal cases. In the end, the circuit court found that Wegener’s suggestion that he was not aware of the disadvantages of self-representation was not credible.