COURT OF APPEALS
DECISION
DATED AND FILED
December 7, 2010
A.
John Voelker
Acting Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT III
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State of Wisconsin,
Plaintiff-Respondent,
v.
Douglas D. Reese,
Defendant-Appellant.
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APPEAL
from a judgment of the circuit court for Door County: D. Todd
Ehlers, Judge. Affirmed.
Before Hoover, P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. Douglas Reese appeals a judgment
convicting him of fifth-offense driving while intoxicated. He pled no contest after the circuit court
denied his motion to void a prior conviction in Calumet County
for the purposes of penalty enhancement.
Reese contends he was not represented by counsel during his guilty plea
in the Calumet County case and his waiver of counsel
was not knowing, voluntary and intelligent.
Because the State met its burden of showing by clear and convincing
evidence that Reese knowingly, voluntarily and intelligently waived his right
to counsel in the Calumet
County case, we
affirm the judgment.
¶2 A defendant who faces an enhanced sentence based on a prior
conviction may collaterally attack the earlier conviction only upon a claim of
denial of his constitutional right to counsel.
State v. Hahn, 2000 WI 118, ¶¶17, 28, 238 Wis. 2d 889, 618 N.W.2d 528. The defendant must initially make a prima
facie showing that he did not know or understand the information that should
have been provided in the previous proceeding and, as a result, did not
knowingly, voluntarily and intelligently waive his right to counsel. State v. Ernst, 2005 WI 107, ¶25,
283 Wis. 2d
300, 699 N.W.2d 92. Once a prima facie
showing is made, the burden shifts to the State to prove by clear and
convincing evidence that his waiver of counsel was knowing, voluntary and
intelligent. Id. at ¶27. A waiver of counsel is valid if it reflects a
deliberate choice to proceed without counsel as well as the defendant’s
awareness of the difficulties and disadvantages of self-representation, the
charges and the penalties. State
v. Klessig, 211 Wis. 2d
194, 205, 564 N.W.2d 716 (1997).
¶3 Reese was the only witness at the motion hearing at which he
challenged the Calumet
County conviction. He testified he attempted to hire an
attorney, but was unable to do so due to financial constraints. He accepted the plea bargain offered by the State
because the prosecutor informed him there would be no plea bargains at a later
date. He testified the Calumet County
court did not ask him if he was sure he wanted to proceed without an attorney
and did not tell him he had a constitutional right to representation. He further testified he was not informed of
the penalties. He signed a plea questionnaire
and waiver of rights form, but testified he signed the document without reading
it. He testified the Calumet County
court only asked if he signed the plea questionnaire, but not whether he read
it.
¶4 Reese also testified regarding a Brown
County conviction for driving while
intoxicated that resulted from a no contest plea entered three days before the Calumet County plea hearing. He admitted to having counsel at that time
and understanding the legal services provided by an attorney. He testified his Brown County
attorney went over the plea questionnaire and waiver of rights form with
him. Based on Reese’s testimony, the
circuit court found the State met its burden of proving by clear and convincing
evidence that Reese knowingly, voluntarily and intelligently waived his right
to counsel in the Calumet
County case. The court found incredible Reese’s testimony
regarding lack of knowledge of his right to counsel, counsel’s functions and
the potential penalties.
¶5 The record supports the circuit court’s finding that Reese
properly waived his right to counsel in the Calumet County
case. Reese acknowledged his awareness
of his right to an attorney and what an attorney could do for him. He acknowledged reviewing the elements of
driving while intoxicated with an attorney three days earlier in the Brown County
case. He chose to waive representation
by counsel in order to take advantage of the State’s time-sensitive plea
offer. The decision to waive counsel
demonstrated a deliberate, knowing, voluntary and intelligent choice.
¶6 Citing State v. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998), Reese argues the State did not meet its
burden because the circuit court’s finding was based on a “negative inference”
from its finding that Reese’s testimony was not credible. The circuit court’s finding was not based
solely on a negative inference. Rather,
Reese’s own testimony regarding the totality of the circumstances, particularly
his concessions regarding the Brown
County conviction,
support the circuit court’s finding.
Unlike Nichelson, Reese’s own testimony provides positive evidence of
his valid waiver of his right to counsel.
By the Court.—Judgment affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5 (2007-08).