COURT OF APPEALS

DECISION

DATED AND FILED

 

March 21, 2012

 

Diane M. Fremgen

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

 

 

 

 

Appeal No.�

2011AP2115-CR

Cir. Ct. No.� 2010CT443

STATE OF WISCONSIN�

IN COURT OF APPEALS

 

DISTRICT II

 

 

 

 

State of Wisconsin,

 

��������� Plaintiff-Respondent,

 

���� v.

 

Traci L. Scott,

 

��������� Defendant-Appellant.

 

 

 

 

 

����������� APPEAL from a judgment of the circuit court for Racine County:� JOHN S. JUDE, Judge.� Affirmed.�

�1������� REILLY, J.[1]   Traci L. Scott appeals from a judgment of conviction, finding her guilty of third offense operating while intoxicated (OWI).� Scott made a collateral attack on this conviction, arguing that she did not make a valid waiver of her right to counsel at her 1999 conviction for second offense OWI, for which a transcript was never produced.� The circuit court found that the State proved by clear and convincing evidence that Scott knowingly, intelligently and voluntarily waived her right to counsel in that 1999 proceeding.� We affirm.

�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).

�4������� Scott argues that her plea colloquy was defective in several respects, but focuses mainly on not being aware of the possible penalties.� Scott claims that she was unaware of the advantages of an attorney and the difficulties or disadvantages of proceeding without one.� She states she was never advised of the elements of the crime the State would have to prove and could not recall ever reading the complaint.� She says she believed that the maximum penalty she faced was ten days in jail, and that such would be her automatic sentence if she entered a plea.� Scott indicates she never consulted with an attorney, nor had she ever before appeared with the assistance of counsel.� Finally, Scott states that had she known she faced a possible six months of jail time, she would have retained an attorney.

�5������� The circuit court found that Scott made a prima facie case that her right to counsel had been violated and shifted the burden to the State to show by clear and convincing evidence that Scott�s waiver was knowing, intelligent and voluntary.� Because the circuit court afforded Scott an evidentiary hearing, we will assume, without deciding, that Scott�s affidavit was sufficient to establish a prima facie case.� We turn, then, to the State�s case, addressing the evidence presented in order of the Klessig prongs.

�6������� First, was Scott�s choice to proceed without counsel deliberate?� Scott testified that she was advised of her right to an attorney at her initial appearance.� The minutes from that appearance and from the sentencing hearing both indicate that Scott was advised of her rights.� Scott testified that she did not think an attorney could have done anything to get her a better deal and that she was in a hurry to be done with her case.� Finally, thirteen days passed between the initial appearance and the sentencing hearing, in which time Scott had the opportunity to consider her decision to proceed without counsel.� These facts demonstrate that Scott made a deliberate decision to proceed pro se.

�7������� Second, was Scott aware of the difficulties and disadvantages of self-representation?� As noted above, Scott was aware of her right to an attorney.� Scott testified that while she was not aware of what attorneys do in particular cases, she did know that attorneys help people.� Scott was also aware that attorneys receive specialized training in their field.� Scott�s knowledge that attorneys help their clients demonstrates her understanding that a defendant is disadvantaged by proceeding pro se.�

�8������� Third, was Scott aware of the seriousness of the charges against her?� The minutes from the initial appearance indicate that the complaint was read, which, according to the circuit court, �[a]t a minimum � the charge is read along with the maximum penalties.�� Scott testified that she thought she would be serving ten days in jail if she entered a plea.� Scott told the court that �10 days scared the crap out of me.�� Scott understood she faced criminal charges and that she might go to jail.� Scott was aware of the seriousness of the charges against her.

�9������� Fourth, was Scott aware of the general range of penalties that could be imposed against her?� As already noted, the minutes from the initial appearance indicate that the complaint was read.� In her testimony, Scott admitted that �he read something, but I don�t remember what exactly it was.�� The focus of Scott�s appeal is on her alleged misunderstanding that she was only exposed to ten days in jail, while in reality she could have been sentenced to six months.� However, we note that Klessig does not require precise knowledge of possible penalties, but rather an awareness of �the general range of penalties that could have been imposed.�� Klessig, 211 Wis. 2d at 206.� Here, Scott�s testimony shows she knew she was exposed to jail time and that she considered the penalty �scary.�

�10����� We agree with the circuit court that the State met its burden to show by clear and convincing evidence that Scott�s waiver of her right to counsel was made knowingly, intelligently and voluntarily.

�11����� Finally, we address Scott�s argument that the State�s and circuit court�s approach �impermissibly shifts the burden of proof back to the defendant.�� In addition to reiterating her argument that the State failed to meet its burden to show a knowing, intelligent and voluntary waiver, Scott argues that the State�s reliance on Scott�s inability to recall events from twelve years earlier �shifts the burden back to Scott.�� We note, however, that our analysis of the State�s case has not relied on Scott�s testimony that she does not recall details from her 1999 case.� There is enough in the record, aside from Scott�s lack of recollection, to carry the State�s burden and show that Scott�s waiver was knowing, intelligent and voluntary.

����������� By the Court.�Judgment affirmed.

����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.

 

 

 

 


[1]  This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2)(f) (2009-10).� All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.