Wis JI-Criminal SM-16

CONTENTS

Scope

I. Collateral Attack Must Be Allowed When Prior Convictions Are Used

To Support Guilt Or Enhance Punishment.............................................................. 2

II. Collateral Attack Is Allowed Only For Claims That The Defendant Was

Denied The Right To Counsel At The Time Of The Prior Conviction................... 3

III. Procedure................................................................................................................. 4

A. When a transcript is available, and the transcript shows a defect

in the waiver of counsel............................................................................... 5

B. When a transcript is not available or does not show a defect in

the waiver of counsel................................................................................... 7

IV. Common Situations Where the Collateral Attack Issue May Arise........................ 8

A. Priors used to support guilt or enhance punishment – collateral

attack must be allowed................................................................................. 8

B. Priors used to identify members of a potentially dangerous class

– collateral attack is not allowed................................................................. 9

V. Effect of a Successful Collateral Attack on the Original Conviction................... 10

Scope

Under the current criminal statutes, many criminal offense definitions, penalty

enhancers, and penalty schemes are based on the defendant having prior convictions. As

these situations become more common, the propriety of a challenge to the validity of the

priors in a prosecution for a new crime is an increasingly important issue. This is commonly

referred to as “collateral attack” on the prior convictions. It is deemed “collateral” because

the challenge comes not in a direct appeal of the original conviction but in the context of a

later prosecution.

There are two issues that arise with respect to collateral attacks on prior convictions:

(1) What uses of prior convictions require allowing collateral attack?

(2) What types of defects in the prior conviction may be raised in a collateral

attack?

I. Collateral Attack Must Be Allowed When Prior Convictions Are Used To

Support Guilt Or Enhance Punishment

The standard for determining the uses of prior convictions that require allowing

collateral attack may be summarized as follows:

• when priors are used to support guilt or enhance punishment, collateral attack must

be allowed;

• when priors are used to “identify members of a potentially dangerous class,” a

defendant may not collaterally attack a prior.

This difficult distinction was articulated by the United States Supreme Court in Lewis

v. United States, 445 U.S. 55 (1980). In Lewis, the court held that a federal defendant

charged with being a felon in possession of a firearm was not entitled to collaterally attack

the prior conviction relied on to establish his felon status. This was based on the distinction

that the prior conviction in this situation was used in a way that focused “not on reliability,

but on the mere fact of conviction. . . . Enforcement of that essentially civil disability

through a criminal sanction does not ‘support guilt or enhance punishment.’” 445 U.S.

55, 67.

The Wisconsin Court of Appeals commented on the Lewis rule in State v. Foust, 214

Wis.2d 568, 573-4, 570 N.W.2d 905 (Ct. App. 1997), calling it an “elusive” distinction and

“a conundrum.” However, the court found it settled as a matter of state law that prior

criminal convictions for operating under the influence used to establish the defendant’s

present status as, for example, a third-time offender, are used “primarily to enhance

punishment.” The court relied on State v. Baker, 169 Wis.2d 49, 485 N.W.2d 237 (1992),

which allowed collateral attack on prior criminal convictions for operating after revocation

[OAR]. The Baker decision reviewed Lewis and concluded that “the OAR statute uses prior

OAR convictions primarily to enhance punishment, not to identify and classify a defendant

or enforce a civil disability with a criminal sanction.” 169 Wis.2d 49, 64.1

So, Baker and Foust make it clear that the use of prior convictions in the state’s

graduated penalty schemes for operating after revocation and operating under the influence

is “primarily to enhance punishment” and thus appropriate for collateral attack. An

example of the other category – use to identify the defendant as a member of a potentially

dangerous class – may be offered by the criminal offense of violating a temporary

restraining order or injunction in violation of § 813.12. The Wisconsin Court of Appeals

held that a “defendant cannot collaterally attack the validity of a harassment injunction in

a criminal prosecution for the violation of that injunction.” State v. Bouzek, 168 Wis.2d

642, 484 N.W.2d 362 (Ct. App. 1992).

This could be characterized as fitting the Lewis “dangerous class” category, although

the Bouzek decision does not make that explicit. The nature of Bouzek’s challenge is

identified only as the injunction being “overly broad” and “improperly issued.” It probably

did not involve a constitutionally-based challenge, thus failing to meet what is

characterized here as the second part of the standard.

II. Collateral Attack Is Allowed Only For Claims That The Defendant Was Denied

The Right To Counsel At The Time Of The Prior Conviction

Collateral attack is allowed only for claims that the defendant was denied the right to

counsel at the time of the prior conviction.2 Custis v. United States, 511 U.S. 485 (1994);

State v. Hahn, 2000 WI 118, 238 Wis.2d 889, 618 N.W.2d 528. This includes a claim that

the defendant did not knowingly, intelligently, and voluntarily waive his or her

constitutional right to counsel. State v. Ernst, 2005 WI 107, 283 Wis.2d 300, 699 N.W.2d

92.

In Custis v. United States, 511 U.S. 485 (1994), the United States Supreme Court

rejected a claim that the United States Constitution requires allowing collateral attack on

the grounds of ineffective assistance of counsel and the absence of a knowing and

intelligent guilty plea. The court recognized a “sole exception” to the rule prohibiting

collateral attacks – convictions obtained in violation of the right to counsel: “failure to

appoint counsel for an indigent defendant was a unique constitutional defect.” 511 U.S.

485, 496.

The Wisconsin Supreme Court adopted the Custis rule in State v. Hahn, 2000 WI 118,

238 Wis.2d 889, 618 N.W.2d 528. Noting that Custis interpreted the federal constitution,

the court adopted the same conclusion as a matter of state law:3

Although these administrative considerations may weigh differently in different

cases, we conclude that considerations of judicial administration favor a bright-line

rule that applies to all cases. We, therefore, hold that a circuit 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.4

State v. Hahn, 2000 WI 118, ¶28, as modified on reconsideration by 2001 WI 6, ¶2.

In State v. Ernst, 2005 WI 107, 283 Wis.2d 300, 699 N.W.2d 92, the court confirmed

that the right to collateral attack extends to claims of invalid waiver of counsel. The

standards for a valid counsel waiver are set forth in State v. Klessig, 211 Wis.2d 194, 564

N.W.2d 716 (1977). The Klessig standards, though not mandated by the United States

Constitution, are required by the Wisconsin Supreme Court as an exercise of its

superintending power.5

Klessig identified four requirements for a valid waiver of counsel to be covered in a

colloquy conducted by the court. The colloquy must ensure that the defendant:

1) made a deliberate choice to proceed without counsel;

2) was made aware of the difficulties and disadvantages of self-representation;

3) was aware of the seriousness of the charge of charges against him; and,

4) was aware of the general range of penalties that could have been imposed on him.

Klessig, 211 Wis.2d 194, 206. [Cited in Ernst, 2005 WI 107, ¶14.]

For a description of the Klessig requirements and discussion of related issues, see SM-

30 Waiver and Forfeiture of Counsel; Self-Representation; Standby Counsel; “Hybrid

Representation”; Court Appointment of Counsel.

III. Procedure

In State v. Ernst, 2005 WI 107, 283 Wis.2d 300, 699 N.W.2d 92, the court set forth the

procedures to be used when a defendant challenges a prior conviction on a collateral attack.

In State v. Clark, 2022 WI 21, 401 Wis. 2d 344, 972 N.W.2d 533, the court clarified that

the procedure set forth in Ernst applies only in cases in which there is a transcript of the

relevant proceedings from the prior case and the transcript shows a defect in the defendant’s

waiver of the right to counsel in the prior case. If a transcript is unavailable or does not

show a defect in the waiver of the right to counsel, Clark mandates a different procedure.

The two procedures are described below.

While Ernst and Clark were specifically concerned with an alleged deficiency in

obtaining a waiver of counsel, the same general procedure would be suitable for a claim

that counsel was denied.

A. When a transcript is available, and the transcript shows a defect in the

waiver of counsel

If a transcript of the relevant proceedings from the prior case is available, the procedure

set forth in Ernst applies. The procedure is modeled after that used for withdrawal of a plea

of guilty. See State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986).

1. The burden is on the defendant to make a prima facie showing of a

constitutional violation

The defendant must allege that the constitutional right to counsel was violated, either

by denial of counsel or by failure to obtain a knowing, intelligent, and voluntary waiver of

counsel. The allegation must point to specific facts that support the allegation:

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, 2005 WI 107, ¶25 (internal citations omitted). Clark clarified that, in pointing to

facts to support the collateral attack, the defendant must identify in the transcript a defect

in or failure to conduct the colloquy required by State v. Klessig, 211 Wis.2d 194, 564

N.W.2d 716 (1997), when accepting a defendant’s waiver of the right to counsel. The

defendant cannot make a prima facie showing absent a defect in the colloquy, as evidenced

by the transcript. Clark, 401 Wis.2d 344, ¶¶18, 20.

The Ernst decision also stated that “[a]n affidavit from the defendant setting forth such

facts [facts that demonstrated that he or she did not knowingly, intelligently, and

voluntarily waive counsel] would be necessary, in order to establish a prima facie case.”

Ernst, 2005 WI 107, ¶33. In other words, not only must the defendant identify a defect in

or failure to conduct the Klessig colloquy, the defendant must also allege that he or she did

not understand the information that should have been covered in the colloquy. Ernst, 2005

WI 107, ¶26.

Applying this standard in the Ernst case, the court found that the defendant failed to

meet it:

Ernst made no mention of specific facts that show that his waiver was not a

knowing, intelligent, and voluntary one. Instead, Ernst simply relied on the

transcript and asserted that the court’s colloquy was not sufficient to satisfy

Klessig. . . . Since this was a collateral attack, the lack of specific facts resulted in

a failure to establish a prima facie case that Ernst did not knowingly, intelligently,

and voluntarily waive his right to counsel.

Ernst, 2005 WI 107, ¶26.

In State v. Bohlinger, 2013 WI App 39, 346 Wis.2d 549, 828 N.W.2d 900, decided

before Clark, a conviction for 4th offense operating under the influence was reversed, and

the case remanded for an evidentiary hearing on whether the defendant validly waived

counsel during his prosecutions for the 2nd and 3rd offenses. The court held the defendant

made a sufficient prima facie showing that because of cognitive disability, he did not have

the mental capacity to understand the rights he was waiving. Note, however, that while

transcripts from the prior cases were available in Bohlinger, the defendant did not allege

the waiver colloquies were defective, and the court held he was not required to show a

defect in the colloquy to make a prima facie showing. 345 Wis.2d 549, ¶¶17-20. That part

of Bohlinger’s holding is no longer valid in light of Clark.

Also see State v. Hammill, 2006 WI App 128, 293 Wis.2d 654, 718 N.W.2d 747, and

State v. Verhagen, 2013 WI App 16, 346 Wis.2d 196, 827 N.W.2d 891, where the court of

appeals concluded that the defendant failed to make a prima facie showing. Note that

transcripts were not available in either of these cases; thus, after the decision in Clark, the

defendants would not be entitled to the burden-shifting procedure set forth in Ernst but

would bear the burden of showing a constitutional violation.

2. If a prima facie showing is made, an evidentiary hearing should be held,

at which the burden shifts to the state

The burden is on the state to prove by clear and convincing evidence that the defendant

was not denied the right to counsel or that the defendant’s waiver of counsel was

knowingly, intelligently, and voluntarily entered.6 The “court should hold an evidentiary

hearing to allow the State an opportunity to meet its burden.” Ernst, 2005 WI 107, ¶27.

3. At the hearing, the state may call the defendant as a witness

Ernst concluded that the collateral attack situation was the same as that where

withdrawal of a plea of guilty is sought. The defendant may be called as a witness to shed

light on his or her understanding of matters relevant to entering a voluntary and intelligent

plea or a voluntary waiver of counsel. Ernst, 2005 WI 107, ¶31.

4. The defendant may not claim the privilege against self-incrimination

If called as a witness, the defendant may not validly claim the 5th Amendment privilege

against self-incrimination. Making a prima facie case will require an affidavit from the

defendant alleging facts in support of the constitutional violation. Once a defendant

successfully makes a prima facie showing, the defendant cannot avoid testifying about

circumstances concerning that claim. By raising the issue, the defendant has waived the

privilege. Ernst, 2005 WI 107, ¶33. “Finally, if the defendant refuses to testify under these

circumstances, a circuit court is free to draw the reasonable inference that the State has

satisfied its burden, and that the waiver of counsel was a knowing, intelligent, and

voluntary one.” Ernst, 2005 WI 107, ¶35.

B. When a transcript is not available or does not show a defect in the waiver

of counsel

If a defendant collaterally attacking a prior conviction cannot point to a defect in the

relevant transcript, either because a transcript of the relevant proceeding is not available or

because the colloquy in the transcript is facially valid, the burden-shifting procedure

established in Ernst does not apply. Instead, the defendant carries the burden to demonstrate

that his or her waiver of counsel in the prior proceeding was not knowing, intelligent, and

voluntary. Clark, 401 Wis.2d 344, ¶20.

IV. Common Situations Where the Collateral Attack Issue May Arise

This section lists the situations where the collateral attack issue is addressed by case

law or in the published jury instructions. The situations are divided into two categories:

those where priors are used to support guilt or enhance punishment and where collateral

attack must be allowed; those where priors are used to “identify members of a potentially

dangerous class” and where a defendant may not collaterally attack the prior. Within the

categories, the offenses are listed in the order in which they appear in the statutes. [Some

of the examples do not involve prior convictions but rather are based on a prior court order

or injunction. The Committee believes the same analysis would apply to the court

order/injunction cases.]

A. Priors used to support guilt or enhance punishment – collateral attack must

be allowed

1. Prior convictions for operating after revocation – § 343.44

State v. Baker, 169 Wis.2d 49, 485 N.W.2d 237 (1992), allowed collateral attack on

prior criminal convictions for operating after revocation [OAR]. The Baker decision

concluded that “the OAR statute uses prior OAR convictions primarily to enhance

punishment, not to identify and classify a defendant or enforce a civil disability with a

criminal sanction.” 169 Wis.2d 49, 64.7

2. Prior convictions for operating under the influence – § 346.63

In State v. Foust, 214 Wis.2d 568, 570 N.W.2d 905 (Ct. App. 1997), the court found it

settled as a matter of state law that prior criminal convictions for operating under the

influence used to establish the defendant’s present status as, for example, a third-time

offender, are used “primarily to enhance punishment.” The court relied on State v. Baker,

supra. The same should be true for convictions used to support the application of the 0.02

level of alcohol concentration.

3. Prior convictions used under the “habitual criminality” statute

(“repeater”) – § 939.62

Although there is not a published decision directly on point in Wisconsin, the logic of

the cases discussed above is that collateral attack would be allowed with respect to prior

convictions used to support a repeater allegation under § 939.62. The United States

Supreme Court recognized the propriety of collateral attack in that situation in Burgett v.

Texas, 389 U.S. 109 (1967).

4. Prior convictions used under the “persistent repeater” statute (“three

strikes”) – § 939.62(2m)(b)1.

In State v. Hahn, 2000 WI 118, 238 Wis.2d 889, 618 N.W.2d 528, the court allowed

collateral attack on a prior conviction used as the basis for a “persistent repeater” or “three

strikes” determination under § 939.62(2m)(b)1.

5. Prior convictions used at sentencing

In United States v. Tucker, 404 U.S. 443 (1972), the United States Supreme Court held

that convictions obtained in violation of the right to counsel could not be relied on as prior

convictions at sentencing in a later prosecution.8 That the priors were obtained in violation

of the right to counsel had been established in a collateral attack in the state courts.

To be distinguished is State v. Orethun, 84 Wis.2d 487, 267 N.W.2d 318 (1978), a

decision upholding an OAR conviction despite the fact that a speeding conviction upon

which the revocation was based had been reversed. In terms of the categories outlined here,

the prior conviction only identified the defendant as a member of a class – those whose

privileges could be revoked – and did not support guilt or enhance punishment.

B. Priors used to identify members of a potentially dangerous class – collateral

attack is not allowed

1. Contempt of court: punitive sanction – § 785.01

The Committee’s conclusion is stated as follows in the Comment to Wis JI-Criminal 2031, Contempt of Court: Punitive Sanction: “It apparently is not appropriate to

challenge the validity of the order in the context of the criminal prosecution based on failure

to obey that order.” The basis for this conclusion was a civil case holding that regardless

of the legality of an order, a party is bound to comply with it until it is set aside through

regular appeal channels. Getka v. Lader, 71 Wis.2d 237, 238 N.W.2d 87 (1976). Of course,

the fact that there was a court order and that the defendant violated a provision of that order

are elements of the crime.

2. Violation of injunction or restraining order – §§ 813.12, 813.122,

813.123, 813.125

“A defendant cannot collaterally attack the validity of a harassment injunction in a

criminal prosecution for the violation of that injunction.” State v. Bouzek, 168 Wis.2d 642,

484 N.W.2d 362 (Ct. App. 1992). See the discussion in the Comment to Wis JI-Criminal 2040, Violating a Temporary Restraining Order or an Injunction.

3. Felon in possession of a firearm – § 941.29

In Lewis v. United States, 445 U.S. 55 (1980), the United States Supreme Court held

that a defendant charged under the federal counterpart to § 941.29 was not allowed to

collaterally attack the prior conviction relied on to establish his felony status. The

conclusion in Lewis was based on the distinction that the prior conviction in this situation

was used in a way that focused “not on reliability, but on the mere fact of conviction. . .

Enforcement of that essentially civil disability through a criminal sanction does not

‘support guilt or enhance punishment.’” 445 U.S. 55, 57.

4. Escape – § 946.42

The Committee’s conclusion is stated as follows in footnote 4, Wis JI-Criminal 1774,

Jail or Prison Escape: “Although there apparently is no Wisconsin law on the subject, the

Committee is of the opinion that the legality of the underlying conviction and sentence is

not an issue where the charge is escape after conviction or sentence. Thus, it should be no

defense that the defendant’s underlying conviction is subject to challenge.”

V. Effect of a Successful Collateral Attack on the Original Conviction

One of the Committee’s assumptions when SM-16 was originally drafted was that a

successful collateral attack affects only the use of the attacked prior conviction in the

current proceeding. That is, the court in the current case has no authority to take any other

action with respect to the prior; it remains a valid conviction for all other purposes unless

additional action is taken in the court that entered the conviction.

In State v. Deilke, 2004 WI 104, 274 Wis.2d 595, 682 N.W.2d 945, a defendant in a

2001 prosecution for 5th offense operating under the influence moved to collaterally attack

prior convictions from 1993, 1994, and 2000 on the ground that they were obtained in

violation of his right to counsel. The state conceded that the record did not show a valid

waiver of counsel, and the trial court granted Deilke’s motion. The State then moved to

reopen those priors, and the motion was granted in two of the three cases.9 The Wisconsin

Supreme Court held that Deilke’s successful collateral attack violated a term of the plea

agreements on which those convictions were based. This was a breach of the plea

agreement, and the breach was material because it deprived the state of a benefit for which

it had bargained – using those convictions as predicates for higher penalties for future

violations. So, the state could seek to reopen the convictions and, when successful, could

reissue those original charges and try, or negotiate with, Deilke again. The court’s decision

did not address the basis for the court’s authority to reopen those final judgments.10

Deilke involved unique facts in that all the prior convictions and the current prosecution

were in the same county. The decision allows options for the prosecution that are beyond

the scope of this Special Material. It does not affect the substance of the analysis provided

here, which focuses on the validity of the prior convictions in a new prosecution.