State v. Baker

Decision Date18 June 1992
Docket Number90-2634-CR,Nos. 90-2633-C,s. 90-2633-C
Citation485 N.W.2d 237,169 Wis.2d 49
PartiesSTATE of Wisconsin, Plaintiff-Appellant-Cross-Respondent-Petitioner, v. Christopher S. BAKER, Defendant-Respondent-Cross-Appellant-Cross-Petitioner.
CourtWisconsin Supreme Court

For the plaintiff-appellant-cross-respondent-petitioner the cause was submitted on the briefs of Jerome S. Schmidt, Asst. Atty. Gen., and James E. Doyle, Atty. Gen.

For the defendant-respondent-cross-appellant-cross-petitioner the cause was submitted on the briefs of Steven L. Miller and Zuidmulder, Appel & Gammeltoft, S.C., Green Bay.

SHIRLEY S. ABRAHAMSON, Justice.

Both the state and the defendant Christopher S. Baker seek review of a published decision of the court of appeals, State v Baker, 165 Wis.2d 42, 477 N.W.2d 292 (Ct.App.1991), affirming an order of the Circuit Court for Brown County, Judge Carl R. Fenwick. The petition and cross-petition for review present four issues, all arising from the statutory scheme providing progressive penalties for successive convictions of operating a motor vehicle after revocation or suspension of a license: (1) May a defendant collaterally attack a prior conviction for operating a motor vehicle after revocation (OAR) in a subsequent OAR proceeding? (2) If a defendant may collaterally attack prior OAR convictions in a subsequent OAR case, is the defendant limited to asserting a violation of the constitutional right to counsel? (3) If collateral attack on a prior OAR conviction is not limited to a violation of the constitutional right to counsel, was the defendant's third OAR conviction subject to collateral attack on the ground that the defendant did not enter a guilty plea knowingly, voluntarily, and intelligently? (4) Did the defendant's second OAR conviction violate the constitutional right to counsel?

We conclude that for sentencing purposes under sec. 343.44(2), Stats., a defendant may collaterally attack a prior OAR conviction allegedly obtained in violation of the defendant's constitutional rights; the defendant is not limited to asserting a violation of the constitutional right to counsel. We hold that Baker's third OAR conviction is constitutionally infirm for sentencing purposes under sec. 343.44 because it was obtained in violation of the due process requirement that a guilty plea be entered knowingly, voluntarily, and intelligently. Further, we hold that Baker's second OAR conviction is constitutionally infirm for sentencing purposes under sec. 343.44 because it was obtained without counsel. Accordingly, we affirm that part of the court of appeals' decision which affirms the circuit court's order setting aside the third OAR conviction; we reverse that part of the court of appeals' decision which affirms the circuit court's order refusing to set aside the second OAR conviction; and we remand the cause for further proceedings.

I.

The relevant facts for purposes of this review are undisputed. In March 1990, Baker was charged with two OAR violations pursuant to sec. 343.44(1) and (2)(e), Stats.1989-90, and two counts of habitual traffic offender for operating a vehicle on February 20, 1990, and February 24, 1990. The state asserted that these two violations constituted the defendant's fifth and sixth offenses under this statute within five years. The penalties for any offense subsequent to a fifth offense are the same as those for a fifth offense.

Baker had been convicted of four prior OAR offenses. The first conviction was on November 1, 1985, for driving on September 18, 1985; the second on April 28, 1986, for driving on March 25, 1986; the third on September 11, 1986, for driving on June 28, 1986; and the fourth on April 18, 1989, for driving on January 17, 1989.

Section 343.44(2) provides for progressively greater penalties for each successive OAR conviction. For the first conviction, the statute sets forth a maximum $600 forfeiture. For the fifth or subsequent convictions within a five year period, the statute sets forth a minimum $2,000 fine and six months in jail. Section 343.44, Stats. 1989-90, 1 provides as follows:

343.44 Driving while disqualified, out of service or after license revoked or suspended. (1) No person whose operating privilege has been duly revoked or suspended pursuant to the laws of this state shall operate a motor vehicle upon any highway in this state during such suspension or revocation....

(2) ... [A]ny person violating this section:

(a) For the first conviction under this section or a local ordinance in conformity with this section within 5 years the person shall forfeit not less than $150 nor more than $600....

(b) 1. [F]or a 2nd conviction ... within 5 years, a person shall be fined not less than $300 nor more than $1,000 and shall be imprisoned not less than 10 days nor more than 6 months.

. . . . .

(c) 1. [F]or a 3rd conviction ... within 5 years, a person shall be fined not less than $1,000 nor more than $2,000 and shall be imprisoned not less than 30 days nor more than 9 months.

. . . . .

(d) 1. [F]or a 4th conviction ... within 5 years, a person shall be fined not less than $1,500 nor more than $2,000 and shall be imprisoned not less than 60 days nor more than one year in the county jail.

. . . . .

(e) 1. [F]or a 5th or subsequent conviction ... within 5 years, a person shall be fined not less than $2,000 nor more than $2,500 and shall be imprisoned not less than 6 months nor more than one year in the county jail.

. . . . .

On July 17, 1990, Baker filed a pretrial motion to have the second and third OAR convictions declared void for purposes of sentencing under sec. 343.44(2). On September 18, 1990, the circuit court issued a memorandum decision declaring the third conviction void for sentencing purposes but not the second. On September 17, 1991, the court of appeals affirmed.

Both the circuit court and the court of appeals concluded that Baker could, for sentencing purposes, collaterally attack a prior OAR conviction on constitutional grounds. The court of appeals affirmed the circuit court's setting aside Baker's third OAR conviction. Baker had been convicted on the basis of a guilty plea entered by his attorney in Baker's absence. Because the record did not affirmatively show that Baker's plea was "knowingly, voluntarily, and intelligently made," the court of appeals concluded that Baker had been deprived of due process.

The court of appeals affirmed the circuit court's refusal to set aside the second OAR conviction. It concluded that Baker failed to meet his burden of proving that his right to counsel had been violated. The transcript of the proceeding leading to his second conviction had been lost. The circuit court was advised that the court reporter of the Brown County Circuit Court who had transcribed the proceedings stated that her notes had probably been destroyed. Baker therefore relied solely on his own affidavit stating that he had not been represented by counsel and that he had not waived the right to counsel. The court of appeals concluded that this proof was insufficient.

On January 7, 1992, this court granted both the state's petition for review challenging the invalidation of the third OAR conviction and Baker's cross-petition for review challenging the refusal to invalidate the second OAR conviction.

We first examine whether a defendant may collaterally attack a prior OAR conviction in a subsequent OAR proceeding for sentencing purposes. We then consider whether the constitutional grounds for collaterally attacking prior convictions for sentencing purposes are limited to violations of the right to counsel. We next discuss the constitutionality of Baker's guilty plea in the third OAR conviction. Finally we consider whether Baker's second OAR conviction violated his right to counsel.

II.

The state asserts that the court of appeals erred in permitting Baker to collaterally attack a prior OAR conviction in a subsequent OAR case for sentencing purposes. To support its position, the state relies on what it describes as the general rule precluding collateral attack on a judgment, absent fraud or lack of jurisdiction. The state argues that the interests of finality ordinarily require that collateral attack be limited.

Relying on four United States Supreme Court decisions, the court of appeals concluded that a defendant may, for sentencing purposes, collaterally attack a prior OAR conviction in a subsequent OAR proceeding on constitutional grounds. We agree with the court of appeals. We conclude that the United States Supreme Court decisions establish the following rule: A defendant may, in a subsequent proceeding, collaterally attack a prior conviction obtained in violation of the defendant's right to counsel if the prior conviction is used to support guilt or enhance punishment for another offense. A defendant may not, in a subsequent proceeding, collaterally attack a prior conviction if the prior conviction is used to identify the defendant as a member of a potentially dangerous class of individuals. We shall explore the development of this rule, whether it extends beyond violations of the right to counsel, and its application to the facts of this case.

The first case we examine is Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). In Burgett, the defendant was convicted of "assault with malice aforethought with intent to murder; repetition of offense." The indictment included allegations of four previous felony convictions which, if found to be true, would subject the defendant to a term of life imprisonment upon conviction of the assault charge. The prior convictions were obtained without the defendant's valid waiver of the assistance of counsel in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The United States Supreme Court ruled that the admission of evidence of a prior conviction obtained in violation of...

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