State v. Socha

Decision Date13 January 2015
Docket NumberNo. 2013AP281–CR.,2013AP281–CR.
Citation864 N.W.2d 120 (Table),360 Wis.2d 489
PartiesSTATE of Wisconsin, Plaintiff–Respondent, v. James J. SOCHA, Defendant–Appellant.
CourtWisconsin Court of Appeals


James J. Socha, pro se, appeals the amended judgment, entered upon a jury's verdict, convicting him of operating a motor vehicle while intoxicated (OWI) as a tenth or subsequent offense. See Wis. Stat. §§ 346.63(1)(a), 346.65(2)(am)7. (2007–08).1 He also appeals the order denying his motion for postconviction relief.2 We affirm.


¶ 2 Socha initially was charged with one OWI count as a tenth or subsequent offense. The complaint was later amended to include one count of operating with a prohibited alcohol concentration.

¶ 3 The State alleged that Socha had at least eleven prior OWI-related offenses. Prior to trial, Socha moved to collaterally attack five of the prior out-of-state convictions based on alleged constitutional violations concerning his right to counsel. In supporting affidavits, Socha averred that he did not have an attorney during the proceedings. No documentation beyond Socha's averments was provided. The trial court denied the motion following a hearing.

¶ 4 Later, Socha, this time pro se, again moved to collaterally attack seven prior out-of-state convictions arguing that they should not be counted for sentence enhancement purposes. The trial court denied the motion in an oral ruling.

¶ 5 A jury found Socha guilty of both counts charged.

¶ 6 Prior to sentencing, Socha asked the trial court to reconsider its oral ruling. The trial court denied this motion as well.

¶ 7 The trial court then imposed sentence for OWI as a tenth or subsequent offense. It dismissed the charge for operating with a prohibited alcohol concentration.

¶ 8 Postconviction, Socha filed a pro se motion for relief, seeking to reopen his sentence and collaterally attack the seven out-of-state convictions. Following briefing, the postconviction court denied Socha's motion.


¶ 9 Socha argues that State v. Hahn, 2000 WI 118, 238 Wis.2d 889, 618 N.W.2d 528, opinion clarified on denial of reconsideration, 2001 WI 6, 241 Wis.2d 85, 621 N.W.2d 902, allows him to collaterally attack prior convictions on grounds other than a violation of his Sixth Amendment right to counsel. Next, Socha contends that the affidavits he submitted below were adequate to establish a prima facie case of invalid waiver of counsel. Finally, he asserts that the record supports only a sentence for a civil first offense of OWI, and as such, this court should commute his sentence. We will address each issue in turn.3

A. Collateral Attack on Prior Convictions

¶ 10 Socha asserts that under Hahn, he is entitled to collaterally attack his prior convictions on grounds other than a violation of his Sixth Amendment right to counsel. Specifically, he submits that his prior convictions in other states were based on constitutionally defective pleas, which were not knowingly, intelligently, and voluntarily entered into.

¶ 11 Whether Socha is entitled to collaterally attack his prior convictions in an attempt to prevent them from being counted for purposes of sentence enhancement is a question of law subject to our independent review. See State v. Peters, 2001 WI 74, ¶ 13, 244 Wis.2d 470, 628 N.W.2d 797.

¶ 12 In Hahn, our supreme court considered whether an offender convicted under Wisconsin's persistent repeater statute could challenge a prior conviction as unconstitutional because it was allegedly based on a guilty plea that was not knowing, intelligent, and voluntary. Id., 238 Wis.2d 889, ¶ 3, 618 N.W.2d 528. In concluding that the offender could not use the enhanced sentence proceeding to make such a challenge, the Hahn court explained:

[W]e conclude that considerations of judicial administration favor a bright-line rule that applies to all cases. We therefore hold that a [trial] court may not determine the validity of a prior conviction during an enhanced sentence proceeding predicated on the prior conviction unless the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior conviction. Instead, the offender may use whatever means available under state law to challenge the validity of a prior conviction on other grounds in a forum other than the enhanced sentence proceeding. If successful, the offender may seek to reopen the enhanced sentence. If the offender has no means available under state law to challenge the prior conviction on the merits, because, for example, the courts never reached the merits of this challenge under State v. Escalona–Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994), or the offender is no longer in custody on the prior conviction, the offender may nevertheless seek to reopen the enhanced sentence. We do not address the appropriate disposition of any such application.

Hahn, 238 Wis.2d 889, ¶ 28, 618 N.W.2d 528 (footnote omitted; emphasis added), as clarified by 2001 WI 6, 241 Wis.2d 85, 621 N.W.2d 902.

¶ 13 It is the next-to-last sentence of this passage that Socha relies on, referring to it as “the sub[-]rule modification” of Hahn's bright-line rule. However, even if the language on which Socha relies can be construed to modify Hahn's bright-line rule, Socha has failed to establish how the modified language applies to him. He simply states, without further explanation or analysis, that he has no allowable mechanism to directly attack his prior convictions and is not in custody on them. No details are provided in his appellate briefs as to what, if any, attacks on his seven prior offenses from Illinois and Ohio were made. This court need not consider arguments that either are unsupported by adequate factual and legal citations or are otherwise undeveloped. See Dieck v. Unified Sch. Dist. of Antigo, 157 Wis.2d 134, 148 n. 9, 458 N.W.2d 565 (Ct.App.1990) (unsupported factual assertions); State v. Pettit, 171 Wis.2d 627, 646, 492 N.W.2d 633 (Ct.App.1992) (we need not address inadequately briefed issues).

¶ 14 In any event, we are wholly unconvinced that the circumstances presented here, which mirror those before the court in Hahn, warrant a deviation from the bright-line rule. As summed up by the State: “The [Hahn ] court made explicit that a person cannot base a collateral attack on a claim that his or her plea was not knowing intelligent, and voluntary-the exact claim that Socha is attempting to make in this case.” We see no basis on which to arrive at a conclusion different than the one the Hahn court arrived at. See generally State v. Hammill, 2006 WI App 128, ¶ 17, 293 Wis.2d 654, 718 N.W.2d 747 (“Hahn is a broad, bright-line rule. Since Hammill's challenge to his Village of Cameron conviction is not based on the denial of his right to counsel, the challenge is barred by Hahn. ”).

B. Prima facie case of Invalid Waiver of Counsel

¶ 15 In the trial court, Socha also attempted to collaterally attack five out-of-state convictions by arguing that he was not represented by counsel during those proceedings. On appeal, he argues that the trial court erred when it denied his motion. We are not convinced.

¶ 16 Socha has not shown that his prior convictions were for crimes to which the right to counsel attached. See State v. Baker, 169 Wis.2d 49, 77, 485 N.W.2d 237 (1992) ([T]he defendant bears the initial burden of coming forward with evidence to make a prima facie showing of a constitutional deprivation in the prior proceeding.”). He has not shown that the prior convictions were for felonies, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), or that he was imprisoned as a result of a misdemeanor conviction, see Scott v. Illinois, 440 U.S. 367, 373–74, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). Consequently, this alone is enough for us to conclude that the collateral attacks must fail. See Hahn, 238 Wis.2d 889, ¶ 28, 618 N.W.2d 528 (collateral attacks limited to violations of constitutional right to counsel).

C. Counting Prior Convictions

¶ 17 Next, we consider whether Socha's prior out-of-state convictions were properly counted as offenses. This involves the interpretation and application of statutes to undisputed facts, which again is a question of law subject to our independent review. See State v. White, 177 Wis.2d 121, 124, 501 N.W.2d 463 (Ct.App.1993).

¶ 18 In determining the prior convictions to be counted as offenses, Wis. Stat. § 343.307 provides:

(1) The court shall count the following to determine the length of a revocation under s. 343.30(1q)(b) and to determine the penalty under ss. 114.09(2) and 346.65(2) :
(d) Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws.

(Emphasis added.) Here, Socha argues that the State failed to prove substantial similarity between the statutes he was convicted of violating in Ohio and Illinois and Wisconsin's OWI statute.

¶ 19 During the proceedings below, both before and after he was convicted, Socha submitted affidavits in which he affirmed that he was convicted of driving under the influence in Ohio on November 7, 1989, January 9, 1991, January 21, 1992, and in two cases on April 28, 1992. Socha further affirmed in affidavits that he pled guilty to driving under the influence and was sentenced in two cases in Illinois on May 4, 2000.4 Additionally, the record reveals numerous other instances where despite challenging their validity, Socha acknowledged that the convictions existed.

¶ 20 In State v. Puchacz, 2010 WI App 30, 323...

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