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State v. Sybers2/27/2003
. James Sybers appeals the judgment of conviction for driving while intoxicated (OWI) in violation of Wis. Stat. § 346.63(1)(a) second offense, and the order denying his motion for post-conviction relief. He contends his plea of guilty to the charge was not entered knowingly, voluntarily, and intelligently. He also contends his trial counsel did not provide effective assistance of counsel because counsel failed to inform him of a viable defense to the allegation that he refused to submit to a chemical test under Wisconsin's Applied Consent Statute and pressured him into pleading guilty. We conclude that there is no merit to these arguments and we affirm.
BACKGROUND
. Sybers was arrested for OWI on January 31, 2001, after a clerk at a PDQ store and gas station called the police because, based on the clerk's observations of Sybers, the clerk did not think Sybers should be driving. According to the report of the arresting officer, at the police station the officer read the Informing the Accused form to Sybers, and Sybers stated that he was not answering anything until he spoke to a lawyer. When the officer informed him that it would be considered a refusal if he did not answer whether he would consent to a chemical test, Sybers stated that it would be a refusal. Sybers was given the opportunity to provide a breath sample for the Intoxilyzer test but did not provide a sufficient breath sample and the officer therefore marked that he had refused to submit to a chemical test. Sybers was given a notice of intent to revoke operating privileges based on that refusal.
. Sybers requested a hearing on the refusal pursuant to Wis. Stat. § 343.305(9). One of the issues that may be raised at such a hearing is whether there was probable cause to believe the person was operating a motor vehicle while intoxicated. Section 343.305(9)(a)5a.
. On July 9, 2001, Sybers appeared with counsel and entered a plea to OWI, second offense, as part of a plea agreement. Pursuant to that agreement, the State moved to dismiss the refusal allegation and to recommend a sentence of fifteen days in Dane County Jail, $800 fine plus court costs, sixteen-month revocation of Sybers's operating privileges, and mandatory alcohol assessment. After the terms of the plea agreement were stated, the court asked Sybers if he understood it. He said yes. When the court asked if he was in agreement with that, Sybers answered "I don't have much choice." His attorney then stated:
DEFENSE COUNSEL: For the record, if I can interrupt, I think Mr. Sybers believes in his own mind that he was not driving under the influence . However, because there was a refusal, he would face a two year revocation and the equivalent of an OWI conviction on his record. Even if he were to proceed to trial and win, he'd have the equivalent of an OWI conviction and a longer revocation, so I know he's not happy with this disposition in this particular case, but I think he's making a rational choice, and he should understand that what he's doing is waiving his rights to have the State prove him guilty beyond a reasonable doubt, and he'd have all the rights at trial. Whether or not he feels that he's guilty or not, I think it's a rational decision because I think that the facts are pretty much undisputed in terms of whether he - a refusal occurred, so that's sort of the status of where we're at. I normally wouldn't go into that kind of colloquy at a plea hearing.
The court read the charge in the complaint and explained the penalties and asked how Sybers pleaded to the charge. Sybers answered "I guess I have to plead guilty." The following colloquy ensued:
THE COURT: Did you sign this plea questionnaire?
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