State v. Clark, 2020AP1058-CR

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtBRIAN HAGEDORN, J.
Citation401 Wis.2d 344,972 N.W.2d 533,2022 WI 21
Parties STATE of Wisconsin, Plaintiff-Appellant, v. Teresa L. CLARK, Defendant-Respondent.
Docket Number2020AP1058-CR
Decision Date20 April 2022

401 Wis.2d 344
972 N.W.2d 533
2022 WI 21

STATE of Wisconsin, Plaintiff-Appellant,
v.
Teresa L. CLARK, Defendant-Respondent.

No. 2020AP1058-CR

Supreme Court of Wisconsin.

Oral Argument: October 15, 2021
Opinion Filed: April 20, 2022


For the plaintiff-appellant, there were briefs filed by Michael C. Sanders, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Michael C. Sanders.

For the defendant-respondent, there was a brief filed by Garrett M. Gondik and Gondik Law, S.C., Superior. There was an oral argument by Garrett M. Gondik.

An amicus curiae brief was filed on behalf of Wisconsin State Public Defender by Katie R. York, appellate division director; with whom on the brief was Kelli S. Thompson, state public defender.

HAGEDORN, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ROGGENSACK and REBECCA GRASSL BRADLEY, JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion, in which DALLET and KAROFSKY, JJ., joined.

BRIAN HAGEDORN, J.

401 Wis.2d 347

¶1 A defendant charged with operating while intoxicated (OWI) faces an escalating set of penalties depending on the number of prior convictions. As part of a defense to an OWI charge, a defendant may challenge a prior conviction—known as a collateral attack—when the defendant was not represented and did not knowingly, intelligently, and voluntarily waive the right to counsel. This court has created a procedure to facilitate these challenges. First, by pointing to evidence in the record, a defendant must establish a prima facie case that the defendant did not knowingly, intelligently, and voluntarily waive the right to counsel. Once established, the burden shifts to the State to prove that the waiver was nonetheless valid.

¶2 The question presented here is whether this same burden-shifting procedure should apply when the relevant hearing transcript from the prior conviction is unavailable. We conclude it should not, and hold that in these circumstances, the defendant

972 N.W.2d 535

retains the burden to demonstrate the right to counsel was violated.

¶3 In this case, the circuit court granted Teresa Clark's motion collaterally attacking two prior convictions, despite the absence of the relevant transcript. The court explicitly based its ruling on the burden-shifting regime and the State's failure to meet its burden to rebut Clark's testimony. In light of our conclusion that the burden should not shift to the State when no transcript is available, we reverse the circuit court's order and remand to the circuit court to allow Clark an opportunity to satisfy her burden.

401 Wis.2d 348

I. BACKGROUND

¶4 In 2018, Clark was charged in Ashland County with fourth-offense counts for both OWI and prohibited alcohol concentration (PAC).1 Her driving record showed three prior OWI convictions: one in Chippewa County from 1994, and two in Eau Claire County from 1995 and 2002. Before the circuit court,2 Clark collaterally attacked her two Eau Claire County convictions claiming she did not knowingly, intelligently, and voluntarily waive her right to counsel. To support her motion, Clark submitted an affidavit alleging that in both cases she was unrepresented and the Eau Claire County Circuit Court did not conduct a colloquy with her regarding the difficulties and dangers of proceeding pro se. The State acknowledged that Clark's sworn statement entitled her to an evidentiary hearing.

¶5 Clark's counsel submitted a separate affidavit, explaining that the relevant documents from both Eau Claire County convictions no longer existed. The file for the 1995 conviction was destroyed because 20 years passed since the conviction, and the transcript for the 2002 case could not be prepared because the reporter's notes were destroyed 10 years after the conviction. Both Clark and the State agree that destruction of these records was consistent with the applicable document retention rules. See SCR 72.01(18), (47).3

401 Wis.2d 349

¶6 Consequently, the State could not produce transcripts from either the 1995 or 2002 cases at the motion hearing. Instead, it submitted the only documents available: a complaint, a bond sheet, a plea hearing minutes sheet, and a sentencing hearing minutes sheet—all from the 2002 case. Both the plea hearing minutes sheet and the sentencing hearing minutes sheet had boxes checked indicating that Clark appeared "Without counsel" and "Def. advised of his right to attorney/constitutional rights."4 In her testimony, Clark acknowledged the information in those documents, but nevertheless maintained that the judges in those cases did not sufficiently advise her of her right to an attorney.

972 N.W.2d 536

¶7 The circuit court was skeptical. It stated that Clark's credibility was "somewhat lacking," and expressed its "suspicion ... that the chances of what the defense is asking me to believe [are] not terribly great." Still, the circuit court determined it had no choice but to grant Clark's motion collaterally attacking the two convictions. The circuit court concluded

401 Wis.2d 350

Clark's testimony shifted the burden to the State, which submitted insufficient evidence to refute Clark's testimony. Clark's successful collateral attacks effectively reduced her OWI and PAC charges from fourth-offenses to first-offenses.5

¶8 The State sought and received leave to file an interlocutory appeal. It then filed a petition for bypass, which we granted.

II. DISCUSSION

¶9 In Wisconsin, the penalty for an OWI or PAC offense depends on the defendant's number of prior OWI/PAC convictions.6 For a defendant's first offense, the penalty is a civil forfeiture. Wis. Stat. § 346.65(2)(am)1. Second and third offenses are misdemeanors. § 346.65(2)(am)2.-3. Fourth offenses and above are escalating classes of felonies. § 346.65(2)(am)4.-7.

¶10 The United States Supreme Court has held that when a crime uses prior convictions as a penalty enhancer in this manner, the defendant has a limited constitutional right to challenge the underlying convictions.

401 Wis.2d 351

Burgett v. Texas, 389 U.S. 109, 114-15, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) ; Lewis v. United States, 445 U.S. 55, 66-67, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). This constitutional right to "collaterally attack" prior convictions applies when the defendant alleges that the prior proceedings involved certain violations of the defendant's right to counsel.7 Custis v. United States, 511 U.S. 485, 487, 496, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) ; see also State v. Hahn, 2000 WI 118, ¶28, 238 Wis. 2d 889, 618 N.W.2d 528. In the OWI and PAC context, this means that a defendant has a right to collaterally attack a prior conviction when the defendant was not represented and did not knowingly, intelligently, and voluntarily waive the right to counsel. State v. Ernst, 2005 WI 107, ¶25, 283 Wis. 2d 300, 699 N.W.2d 92.

¶11 At times, we have employed our superintending authority in an effort to ensure a defendant's right to counsel is protected. Most notably, in State v. Klessig, we mandated the use of a colloquy before a defendant may proceed pro se. 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997). Under Klessig, the circuit court must conduct a colloquy to ensure that the defendant understands the right to counsel and the drawbacks to proceeding pro se. Id. If challenged postconviction, the State is required to demonstrate by clear and convincing evidence that the defendant

972 N.W.2d 537

properly waived the right to counsel. Id. at 207, 564 N.W.2d 716. If the circuit court conducts

401 Wis.2d 352

the Klessig colloquy and the defendant expresses a continued desire to proceed pro se, that will ordinarily suffice. Id. Absent the colloquy, the State has the burden to show by clear and convincing evidence that the defendant properly waived the right to counsel. Id. The Klessig colloquy is not required by the constitution itself; it is "a court-made procedural rule" aimed at protecting the right to counsel. Ernst, 283 Wis. 2d 300, ¶18, 699 N.W.2d 92.

¶12 But what happens when a defendant alleges, after the conviction is final as a matter of law, that no Klessig colloquy occurred? Our cases discussing the burden of proof in the collateral attack context have expressly drawn on our plea withdrawal jurisprudence. Ernst, 283 Wis. 2d 300, ¶31 & n.11, 699 N.W.2d 92. So we turn there to provide necessary context for the rules we have adopted and the issue before us in this case.

¶13 When a defendant raises a postconviction challenge to a guilty or no contest plea, we have adopted a default procedure and an alternate procedure. See generally State v. Negrete, 2012 WI 92, ¶¶16-19, 343 Wis. 2d 1, 819 N.W.2d 749. The default procedure, articulated in State v. Bentley, places the burden on the defendant to...

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1 practice notes
  • State v. Baur, 2021AP55-CR
    • United States
    • Court of Appeals of Wisconsin
    • August 25, 2022
    ...purposes in his current OWI case.[2] During the pendency of this appeal, the Wisconsin Supreme Court issued an opinion in State v. Clark, 2022 WI 21, 401 Wis.2d 344, 972 N.W.2d 533, which addresses the same issues raised in this case. Based on Clark, which is dispositive of the issues in th......
1 cases
  • State v. Baur, 2021AP55-CR
    • United States
    • Court of Appeals of Wisconsin
    • August 25, 2022
    ...purposes in his current OWI case.[2] During the pendency of this appeal, the Wisconsin Supreme Court issued an opinion in State v. Clark, 2022 WI 21, 401 Wis.2d 344, 972 N.W.2d 533, which addresses the same issues raised in this case. Based on Clark, which is dispositive of the issues in th......

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