COURT OF APPEALS DECISION DATED AND FILED July 23, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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-Respondent, v. Justin S. Buchholz, Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 LUNDSTEN, J.[1] Justin Buchholz appeals a circuit court judgment convicting him of operating a motor vehicle while under the influence of an intoxicant, as a third offense. The only issue is whether Buchholz’s collateral attack on one of his prior convictions should have succeeded. I conclude that the circuit court properly rejected Buchholz’s collateral attack, and affirm the judgment.
Background
¶2 The State charged Buchholz with a third drunk driving offense based on two prior convictions, one in 1996 and one in 2004. Buchholz moved to collaterally attack the 2004 conviction, arguing that it had been obtained without a valid waiver of his right to counsel. The circuit court denied the motion after holding an evidentiary hearing, and Buchholz was found guilty of and sentenced for a third offense. Additional facts will be referenced as needed below.
Discussion
¶3 A defendant may collaterally attack a prior conviction in an
enhanced sentence proceeding on the ground that the defendant was denied the
constitutional right to counsel in the prior proceeding. State v. Hahn, 2000 WI 118, ¶25, 238
[T]his court concludes, based upon the demeanor of [Buchholz] in the [hearing on the collateral attack] as well as his prior experience in being convicted of OWI as a first offense and the self-serving nature of the claim, that the defendant’s assertion that [had he] been advised that there could be advantages to representation he would have sought counsel lacks credibility.
The circuit court made its credibility finding after an evidentiary hearing at which Buchholz admitted that the primary reason he did not obtain counsel in 2004 was because he was guilty and wanted to resolve the matter as quickly as possible. Buchholz also testified that, because he wanted to resolve the 2004 matter as quickly as possible, he was just “going through the motions” when the judge asked him certain questions.
¶4 Buchholz does not challenge the circuit court’s credibility
finding. See Rivera v. Eisenberg,
95
¶5 Buchholz also argues that his collateral attack should have
succeeded on an alternative basis. Under
State
v. Klessig, 211
¶6 Buchholz’s alternative basis for his collateral attack fails,
however, because he has not alleged, testified, or even argued that he did not
actually know or understand the range of penalties at the time of his plea.[3] Under State v. Ernst, 2005 WI 107, ¶25, 283
¶7 In sum, the circuit court properly rejected Buchholz’s collateral attack on his 2004 conviction. The court’s judgment is affirmed.
By the Court.—Judgment affirmed.
This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(f) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] The
usual procedure for a collateral attack like the one here is that the defendant
must bring forth evidence to make a prima facie showing that he or she was
deprived of the constitutional right to counsel in the prior proceeding. State v. Hammill, 2006 WI App 128,
¶6, 293
[3] Buchholz does not dispute that he was informed of the range of penalties at his initial appearance, five weeks before his plea hearing for the 2004 charge.