State v. Calkins5/19/2004
John R. Calkins contends that his current conviction for operating while intoxicated cannot be enhanced by a prior conviction that is invalid because he did not knowingly, voluntarily and intelligently waive his right to counsel in the prior proceeding. However, the record conclusively establishes that Calkins did knowingly, voluntarily and intelligently waive his right to counsel and we affirm.
. Calkins was charged in Kenosha county with his third offense operating a motor vehicle while intoxicated (OWI) in violation of Wis. Stat. § 346.63(1)(a). The criminal complaint alleged two prior convictions for OWI or operating with a prohibited alcohol concentration (PAC) in Walworth county: February 9, 1994, and May 30, 1995. Calkins filed a motion collaterally challenging the 1995 conviction, claiming that the Walworth county trial court failed to conduct a colloquy with him that made him aware of the difficulties and disadvantages of self-representation; therefore, he did not knowingly, intelligently and voluntarily waive his right to counsel. The trial court denied his motion and a motion for reconsideration. Calkins then entered a guilty plea to the third offense OWI and was sentenced by the court.*fn2
. Calkins now appeals the denial of his collateral challenge to his second OWI conviction.
. The State agrees Calkins may collaterally attack his May 30, 1995 conviction on the ground that he did not have counsel and did not knowingly, voluntarily and intelligently waive that right. However, the State contends that he did validly waive that right. Resolution of this issue requires the application of a constitutional standard to undisputed facts and that is a question of law which we review de novo. State v. Foust, 214 Wis. 2d 568, 571-72, 570 N.W.2d 905 (Ct. App. 1997).
. In State v. Peters, 2001 WI 74, 244 Wis. 2d 470, 628 N.W.2d 797, the supreme court affirmed its recent holding in State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, that a defendant may not collaterally attack a prior conviction in a subsequent criminal case where the prior conviction enhances the subsequent sentence, except where the attack is based on an alleged violation of the defendant's right to counsel. It then addressed whether Peters had established that he did not knowingly, voluntarily and intelligently waive his right to counsel in the prior proceeding. In doing so, the court explained that it would not evaluate Peters' claim under the standard set forth in State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), because that case had not been decided when Peters entered his plea in the prior proceeding. Peters, 244 Wis. 2d 470, . Instead, the court evaluated Peters' claim under Pickens v. State, 96 Wis. 2d 549, 563-64, 292 N.W.2d 601 (1980), overruled by State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), because that was the prevailing law at the time Peters entered that plea. Peters, 244 Wis. 2d 470, .
. We conclude that the standard in Pickens, not Klessig, is the proper one to apply to Calkins' May 30, 1995 waiver of counsel. When "collaterally attacking" a prior conviction under this exception, the defendant has the initial burden of coming forward with evidence to make a prima facie showing of a deprivation of his or her constitutional right at the prior proceeding. State v. Baker, 169 Wis. 2d 49, 77, 485 N.W.2d 237 (1992). If the defendant makes a prima facie showing, "the state must overcome the presumption against waiver of counsel and prove that the defendant knowingly, voluntarily, and intelligently waived the right to counsel in the prior proceeding." Id. Whether a party has met its burden of establishing a prima facie case is a question of law that we decid
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