Rivard’s challenge to the use of a 2006 OWI conviction fails because the record supports the circuit court’s conclusion that Rivard’s waiver of counsel in that case was valid.
Rivard’s challenge focuses on whether the 2006 colloquy regarding his waiver of counsel shows he was “aware of the general range of penalties that could have been imposed….” State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997). (¶¶21-22). While the transcript of colloquy shows the court didn’t specify the minimum and maximum jail terms or the range of fines, other aspects of the record support the conclusion Rivard knew this information. Specifically:
- At the conclusion of the plea hearing in 2006, the court found Rivard had “a full understanding of … the maximum possible penalty he may face….” (¶23)
- Before waiving counsel and pleading guilty in 2006, Rivard spoke with prosecutor off the record to make a deal based in part on the relevant OWI guidelines, which supports the judge’s finding at the conclusion of the plea that Rivard knew the penalties. (¶24)
- The circuit court found Rivard received a copy of the criminal complaint, and that finding is not clearly erroneous. (¶¶25, 28-32). Further, he would have been able to read and understand the penalties spelled out in it, and was advised of the penalties at his initial appearance. (¶¶26-27).
- Though Rivard testified at the hearing on his collateral attack that he did not know the maximum jail term (¶6), the circuit court could and did properly find he lacked credibility due to his lack of memory on many specifics and the contradictions between his testimony and affidavit in support of his collateral attack motion. (¶¶8, 29-31, 33).
A note about the course of events and arguments in this litigation. When Rivard filed his collateral attack motion everyone was under the impression the 2006 transcript was unavailable because the court reporter’s notes had been destroyed. Turns out that wasn’t the case, and a transcript was produced. (¶3). It contradicted many of the claims Rivard made in his affidavit (¶¶2, 5, 7, 13, 30), but it did show the defect regarding a clear statement of the penalties—something Rivard hadn’t even alleged in his affidavit supporting his motion, but which he asserted based on the transcript. (¶¶13-14, 31).
The circuit court found Rivard had made a prima facie showing of a defect in the colloquy (¶8), and the state apparently concedes this on appeal, as it doesn’t argue to the contrary. (¶16). However, the court of appeals says (¶¶15-16) the parties conflated the two steps in the collateral attack process under State v. Ernst, 2005 WI 107, ¶¶25, 27, 283 Wis. 2d 300, 699 N.W.2d 92: first, the defendant must make a prima facie showing that his or her right to counsel in the prior proceeding was violated; if the defendant does that, then the burden shifts to the state to prove by clear and convincing evidence that the defendant’s waiver of their right to counsel was knowing, intelligent and voluntary. It accordingly assumes there was prima facie showing and moves to the second step. (¶18). For future reference, it is advisable to be clear about the separate steps under Ernst when you’re fashioning your collateral attack argument.