COURT OF APPEALS DECISION DATED AND FILED August 28, 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 WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of
Plaintiff-Appellant, v. Benjamin Shanks,
Defendant-Respondent. |
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APPEAL
from an order of the circuit court for
¶1 DYKMAN, J.[1] The
State appeals from the trial court’s order granting Benjamin Shanks’ motion to
exclude a prior
Background
¶2 On September 16, 2006, a
¶3 In December 2006, Shanks filed a motion collaterally attacking
his
¶4 The court held a motion hearing on whether Shanks validly waived
his right to counsel in the
¶5 The State established that Shanks is literate and has no learning disabilities. Shanks also testified that he went to court three separate times on the Illinois OWI charge. The first time, he agreed to plead guilty, pay a fine, and be placed on court supervision. Shanks then paid part of his fine and signed papers, including a plea of guilty form. The guilty plea form states that a defendant has a right to counsel. At his second appearance in court, Shanks also signed a form titled “Admission to Violation of Probation, Conditional Discharge or Supervision.” That form also states Shanks’ right to counsel. Immediately above the signature line, the form also includes the statement “[u]nderstanding all the above, it is my free and voluntary choice to admit to the allegations ….” Shanks stated that on both occasions he was “in a hurry” and did not read the papers closely. Shanks also stated that no one orally informed him of his right to a lawyer; the disadvantages of proceeding without one; or the minimum and maximum penalties he faced.
¶6 The trial court held that the State did not meet its burden of proof to show that Shanks’ waiver of his right to counsel was knowing and voluntary. The court then granted Shanks’ motion to bar the State from using that conviction as a first offense for penalty purposes. The State appeals.
Standard of
Review
¶7 Whether a prior conviction may be collaterally attacked is a
question of law, which we review de novo.
State v. Peters, 2001 WI 74, ¶13, 244
Analysis
¶8 The State argues that Shanks may not collaterally attack his
prior DUI conviction in
¶9 The State argues that Shanks did not have the right to
counsel because “he was not sentenced to an actual term of imprisonment.” The State cites a federal case, Schindler
v. Clerk of Circuit Court, 715 F. 2d 341 (7th
¶10 While Shanks was not sentenced to jail for his first DUI
conviction in
¶11 Thus, Shanks faced a criminal penalty for his offense and,
therefore, had a constitutional right to counsel.[4] See
State
ex rel. Winnie v. Harris, 75 Wis. 2d 547, 556, 249 N.W.2d 791
(1977) (“Whenever a defendant is charged with a crime, the penalty for which
includes the requirement or option of incarceration, he must be advised of his
right to counsel … unless he knowingly and intelligently waives such right to
counsel.”). Because Shanks had a
constitutional right to counsel,[5]
a collateral attack on the prior conviction is procedurally proper. See
Hahn,
238
¶12 The State next argues that Shanks validly waived his right to
counsel in a plea of guilty form. We
turn, then, to whether the
¶13 A defendant must knowingly, intelligently, and voluntarily
waive his or her right to counsel in order for a guilty plea to be valid. Ernst, 283
¶14 If a defendant can make a prima facie showing, the trial court
then holds an evidentiary hearing in which the burden switches to the State.
¶15 The State argues that Shanks was informed of his right to counsel through a plea of guilty form, which he signed. The State contends that the signed form establishes that Shanks knowingly waived his right to counsel. The State then argues that Shanks’ claim that he did not read the form and did not understand the charges against him is “self-serving” and “disingenuous” because Shanks does not point to specific facts showing that he did not understand the right he was waiving.[6]
¶16 Shanks replies that because the trial court found that he had made a prima facie showing, the burden was on the State to show that Shanks made a deliberate choice to enter his plea without counsel and that he was aware of the implications of that choice. While the State also provided a “Final Order” form, which makes reference to “full admonishment of [Shanks’] rights,” Shanks argues that there is no evidence in the record or presented by the State that establishes exactly what that “full admonishment” included.
¶17 We must look not only to the plea of guilty form, but the
substance of that form. As the supreme court
has reiterated, “[t]he record must show, or there must be allegation and
evidence which show, that an accused was offered counsel but intelligently and
understandingly rejected the offer.
Anything less is not waiver.” State
v. Baker, 169
¶18 The State argues, however, that Shanks’ testimony is incredible
as a matter of law because it is self-serving and disingenuous. However, whether Shanks’ testimony is self-serving
and disingenuous is not a matter for this court to determine. “It is the function of the trier of fact, and
not this court, to resolve questions as to the weight of testimony and the
credibility of witnesses.” Hughes,
233
¶19 Based on the trial court’s finding that Shanks did not, in
fact, understand his right to counsel at the
¶20 The U.S. Supreme Court has succinctly stated that the essence
of a valid waiver is that the defendant “knows what he is doing and his choice
is made with eyes open.”
By the Court.—Order affirmed.
Not
recommended for publication in the official reports. 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) (2005-06). All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Similarly,
in State
v. Baker, 169
[3] Had
Shanks committed an OWI-1st offense in
[4]
The
[5] The
Sixth Amendment provides: “In all
criminal prosecutions, the accused shall enjoy the right … to have the
Assistance of Counsel for his defence.” U.S.
Const. amend. VI. “The Sixth
Amendment safeguards to an accused who faces incarceration the right to counsel
at all critical stages of the criminal process.
The entry of a guilty plea, whether to a misdemeanor or a felony charge,
ranks as a ‘critical stage’ at which the right to counsel adheres.”
[6] The State concedes, however, that Shanks has made a prima facie showing that he was denied his constitutional right to counsel. The question we address is whether the State has met its burden to show that Shanks did, in fact, understand the right he waived.
[7] Wisconsin Stat. § 971.08 provides in part: “(1) Before the court accepts a plea of guilty or no contest, it shall do all of the following: (a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted.”
[8] In
State
v. Moederndorfer, 141
[9] The transcript from the November 9, 2007 motion hearing sets forth the following:
Q. Okay, so you agreed to the advisory about your lawyer …?
….
A. I signed the papers. I didn’t—I was in a hurry. I didn’t really—I had a stack of papers in front of me and he said, sign these, and that’s what I did.
Q. Okay.
A. People were antsy and angry.
….
Q. Is there anything about that form that you didn’t understand that day?
A. I didn’t read the form.
Q. But is there anything, is there anything about it that you did not understand that day?
A. I didn’t read the form that day so there was nothing for me to understand. I signed it.
Q. Did anything happen in Court that day that you didn’t understand?
A. No; no.
Q. Okay. Did you proceed voluntarily that day to take this Court supervision on that OWI?
A. Yes, I did, I did take it. The gentleman told me if I take that Court supervision and don’t get in any trouble, than (sic) my DUI is completely dropped so I thought it was a good deal.