State v. Hammill, 2005AP2560-CR.

Decision Date02 May 2006
Docket NumberNo. 2005AP2560-CR.,2005AP2560-CR.
Citation718 N.W.2d 747
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Joseph J. HAMMILL, Defendant-Appellant.
CourtWisconsin Court of Appeals

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschalger, attorney general, and Juan B. Colas, assistant attorney general.

Before CANE, C.J., HOOVER, P.J., and PETERSON, J.

¶1. PETERSON, J.

Joseph Hammill appeals a judgment convicting him of operating a motor vehicle while under the influence of an intoxicant (OWI), fifth offense, and an order denying his postconviction motion. Hammill argues: (1) the circuit court erroneously counted for penalty enhancement purposes a prior Barron County OWI conviction in which he was deprived of his constitutional right to counsel; (2) his trial counsel was ineffective by arguing the wrong legal standard regarding his collateral attack to the Barron County conviction; and (3) the circuit court erroneously counted a prior Village of Cameron OWI conviction for penalty enhancement purposes because the Village did not have jurisdiction to convict him. We conclude: (1) Hammill failed to make a prima facie case that his right to counsel was violated in the Barron County case and, therefore, the court properly counted the conviction; (2) Hammill has not demonstrated he was prejudiced by his trial counsel's alleged error and, therefore, has not established ineffective assistance; and (3) because Hammill may only attack his prior OWI convictions based on an allegation of a right to counsel deprivation, his collateral attack on the Village of Cameron conviction for lack of jurisdiction fails. We affirm the judgment and order.1

BACKGROUND

¶ 2 On September 2, 2003, Hammill was cited for OWI and operating a motor vehicle with a prohibited alcohol concentration, both as fifth offenses. A jury trial was held, and the jury found Hammill guilty of both charges.

¶ 3 Hammill challenged the number of prior convictions that could properly be counted for sentence enhancement purposes, and an evidentiary hearing was held. Hammill contended his conviction in Barron County case No.1992CT63 could not be counted. The court reporter could not produce a transcript of the plea hearing in that case because the reporter's notes had been destroyed; however, a minute sheet was produced that indicated "defendant waived counsel." Hammill testified that he did not believe he was advised of his rights to a jury trial, to the presumption of innocence, to have each element of the offense proved beyond a reasonable doubt or to have a unanimous verdict of twelve jurors. On cross-examination, Hammill testified that he had no memory of being arrested for or being in court for the Barron County case. He likewise did not remember waiving his right to counsel in the case. The judge's clerk in the Barron County case testified regarding the judge's plea colloquy practices, but conceded she did not specifically remember Hammill's plea hearing in that case. The circuit court found the State had proved beyond a reasonable doubt that Hammill had waived his right to counsel in the Barron County case and, therefore, the conviction counted.

¶ 4 Hammill also challenged a Village of Cameron conviction,2 arguing the conviction was void and thus could not be counted. He contended that he had two OWI-first offense charges pending at the same time, he entered his plea to the Eau Claire County case first and, therefore, the court lacked jurisdiction to convict him of the Village of Cameron OWI-first. The court rejected Hammill's arguments and proceeded to convict and sentence him for OWI-fifth.

¶ 5 Hammill moved for postconviction relief, arguing counsel was ineffective for, among other things, arguing the wrong legal standard under which the court should have examined the validity of Hammill's plea in the Barron County case. The court denied Hammill's motion.

DISCUSSION
Barron County Conviction

¶ 6 A defendant may collaterally attack a prior conviction in an enhanced sentence proceeding only on the ground that the defendant was denied the constitutional right to counsel. State v. Hahn, 2000 WI 118, ¶25, 238 Wis.2d 889, 618 N.W.2d 528. To succeed, the defendant must bring forth evidence to make a prima facie showing that the defendant was deprived of the constitutional right to counsel. State v. Ernst, 2005 WI 107, ¶2, 283 Wis.2d 300, 699 N.W.2d 92. Whether the defendant made the prima facie showing is a question of law that we review independently. Id., ¶ 10. If the defendant makes the prima facie showing, the burden shifts to the State to prove the defendant knowingly, voluntarily, and intelligently waived the right to counsel in the prior proceeding. Id., ¶ 2.

¶ 7 Hammill argues that he made a prima facie showing that he did not knowingly and voluntarily waive his right to counsel. Hammill's argument focuses on distinguishing his case from our decision in State v. Stockland, 2003 WI App 177, 266 Wis.2d 549, 668 N.W.2d 810. In Stockland, the defendant collaterally attacked a prior OWI conviction. However, Stockland only produced a partial transcript of his plea colloquy. That partial transcript indicated that the circuit court had explained rights to all defendants assembled in court the day of Stockland's plea. When Stockland entered his plea, the court reaffirmed that Stockland had heard the court explain his rights earlier and that Stockland understood those rights and wished to proceed with his plea. Because Stockland failed to produce the transcript of the en masse colloquy earlier in the day, we concluded that Stockland did not make a prima facie showing. Id., ¶ 26.

¶ 8 Hammill attempted, but was unable, to procure a transcript due to the destruction of the court reporter's notes.3 For this reason, we do not conclude, as we did in Stockland, that the mere absence of a transcript defeats Hammill's collateral attack. However, Hammill still carries the burden of making a prima facie showing. Our supreme court explained:

For there to be a valid collateral attack, we require the defendant to point to facts that demonstrate that he or she "did not know or understand the information which should have been provided" in the previous proceeding and, thus, did not knowingly, intelligently, and voluntarily waive his or her right to counsel. Any claim of a violation on a collateral attack that does not detail such facts will fail.

Ernst, 283 Wis.2d 300, ¶ 25, 699 N.W.2d 92 (citations omitted).

¶ 9 The only remaining facts Hammill points to in order to make his prima facie showing are those contained in his testimony at the evidentiary hearing.4 Hammill was asked on direct examination whether he remembered the judge advising him of his right to a trial, to which he responded, "I don't believe he did." Regarding the presumption of innocence, Hammill said, "I don't believe he did on that one." Hammill stated he was not "offer[ed]" the right to a unanimous verdict by a twelve-person jury, testifying "I know that for sure." He remembered being advised of the right to remain silent, but not the right to confront his accusers. Hammill did not think the judge had said anything about the State's burden of proof.

¶ 10 On cross-examination, as relevant to the challenged Barron County conviction, the following exchange occurred:

Q. [Y]ou don't recall anything about being in court on May 13th, '92?

A. No.

Q. Is that a fair statement?

A. Yes.

Q. You don't remember what was said with the Judge, what was said back and forth, because it's too long ago?

A. Yeah.

. . . .

Q. My question to you is do you recall giving up your right to an attorney, or do you not recall that?

A. I do not recall that on this one that you're talking about here.

Q. Is it an accurate statement for me to say that as you sit here today under oath you simply don't recall whether or not you gave up your right to an attorney because it's been so long ago you don't know specifically what was said? Is that fair?

A. Well, I can't remember what was said. That's fair, I guess, if I understand you correctly.

Hammill further testified on cross-examination that he did not remember being arrested for a subsequent OWI in the fall of 1992 or having a jury trial on that charge in January of 1993. However, he indicated the name of his counsel in that case did "ring a bell."

¶ 11 On this record, we conclude Hammill has failed to make a prima facie showing that he did not knowingly and voluntarily waive counsel. His testimony does not contain facts demonstrating he did not know or understand information that should have been provided to him. See Ernst, 283 Wis.2d 300, ¶ 25, 699 N.W.2d 92. Rather, Hammill simply does not remember what occurred at his plea hearing. Having failed to make a prima facie showing, Hammill's collateral attack fails.

Ineffective Assistance of Counsel

¶ 12 Hammill argues he was denied the effective assistance of trial counsel. Our review of an ineffective assistance claim presents a mixed question of fact and law. State v. Erickson, 227 Wis.2d 758, 768, 596 N.W.2d 749 (1999). We do not disturb the circuit court's findings of fact unless they are clearly erroneous. Id. Whether the attorney's conduct amounts to ineffective assistance is a question of law that we review independently. Id.

¶13 To establish ineffective assistance of counsel, a defendant must show both that trial counsel's performance was deficient and that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Performance is deficient if it falls outside the range of professionally competent representation. State v. Pitsch, 124 Wis.2d 628, 636, 369 N.W.2d 711 (1985). Prejudice requires more than just a...

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  • State v. Verhagen
    • United States
    • Wisconsin Court of Appeals
    • January 23, 2013
    ...what occurred during his case, he has failed to make a prima facie showing that his right to counsel has been violated. State v. Hammill, 2006 WI App 128, ¶ 11, 293 Wis.2d 654, 718 N.W.2d 747. To establish a prima facie violation of the right to counsel, the defendant must provide “facts de......
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    ...Lebo's testimony from the evidentiary hearing, we would nevertheless conclude he failed to make a prima facie showing. See State v. Hammill, 2006 WI App 128, ¶¶ 9–11, 293 Wis.2d 654, 718 N.W.2d 747 (considering defendant's testimony at an evidentiary hearing in order to conclude defendant f......
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    ...what occurred during his case, he has failed to make a prima facie showing that his right to counsel has been violated. State v. Hammill, 2006 WI App 128, ¶11, 293 Wis. 2d 654, 718 N.W.2d 747. To establish a prima facie violation of the right to counsel, the defendant must provide "facts de......
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