COURT OF APPEALS DECISION DATED AND FILED July 2, 2008 David R. Schanker Clerk of Court of Appeals |
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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. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Respondent, v. Michael G. Hauck,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 ANDERSON, P.J.[1] Michael G. Hauck contends that his current conviction for operating a motor vehicle while intoxicated (OWI) cannot be enhanced by a prior conviction that is invalid because he did not knowingly, voluntarily and intelligently waive his right to counsel in the prior proceeding. However, Hauck is unable to make a prima facie case that he did not knowingly, voluntarily and intelligently waive his right to counsel and therefore we affirm.
¶2 Hauck was charged in
¶3 Hauck now appeals the denial of his collateral challenge to his second OWI conviction.
¶4 The State agrees that Hauck may collaterally attack his 1991 conviction
on the ground that he did not have counsel and did not knowingly, voluntarily
and intelligently waive that right.
Resolution of this issue requires the application of a constitutional
standard to undisputed facts and that is a question of law which we review de
novo. State v. Foust, 214
¶5 In State v. Peters, 2001 WI 74, 244
Wis. 2d 470, 628 N.W.2d 797, the supreme court affirmed its holding in State
v. Hahn, 2000 WI 118, 238
Wis. 2d 889, 618 N.W.2d 528, that a defendant may not collaterally attack a
prior conviction in a subsequent criminal case where the prior conviction
enhances the subsequent sentence, except where the attack is based on an
alleged violation of the defendant’s right to counsel. The court then addressed whether Peters had
established that he did not knowingly, voluntarily and intelligently waive his
right to counsel in the prior proceeding.
The Peters court explained that it would not evaluate Peters’ claim
under the standard set forth in State v. Klessig, 211 Wis. 2d 194,
564 N.W.2d 716 (1997), because that case had not been decided when Peters entered
his plea in the prior proceeding. Peters,
244
¶6 Like the Peters court, we too look to the prevailing law at the time defendant entered his plea. Because Pickens was the prevailing law at the time Hauck entered his 1991 plea, we conclude, as did the Peters court, that the standard in Pickens, not Klessig, is the proper one to apply to Hauck’s 1991 waiver of counsel.
¶7 When collaterally attacking a prior conviction under this
exception, the defendant has the initial burden of presenting evidence to make
a prima facie showing of a deprivation of his or her constitutional right at
the prior proceeding. State v.
Baker, 169
¶8 Hauck has not filed a transcript showing the trial court did
not conduct a proper colloquy. Where there is a missing transcript we must
assume the trial court conducted a proper colloquy. See Duhame ex rel. Corrigal v.
Duhame, 154
¶9 The mere absence of a transcript does not defeat a collateral
attack, but the defendant still carries the burden of making a prima facie
showing. State v. Hammill, 2006
WI App 128, ¶8, 293
¶10 We affirm because Hauck has failed to carry his initial burden of presenting evidence to make a prima facie case for deprivation of his constitutional right to counsel in a prior proceeding. For this reason we do not address whether Iowa v. Tovar, 541 U.S. 77 (2004), is applicable to the facts in this case.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This is a one-judge appeal pursuant to Wis. Stat. § 752.31(2)(f) (2005-06). All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.