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State v. Kidd6/6/2002
. This is an appeal from a judgment convicting Michael Kidd of operating a motor vehicle while intoxicated, contrary to Wis. Stat. § 346.63(1)(a) and operating a motor vehicle with a prohibited blood alcohol content, contrary to § 346.63(1)(b). Because Kidd had three prior convictions, he was subject to more severe penalties under Wis. Stat. § 346.65(2)(d) than for his first, second or third convictions. The trial court denied Kidd's motion to invalidate two of his prior convictions, and sentenced him as a fourth offender. We conclude that Kidd has made a prima facie showing that two of his prior convictions were obtained without an adequate inquiry into whether Kidd's waiver of his Sixth Amendment right to counsel was knowing and voluntary. We therefore reverse and remand with instructions to hold an evidentiary hearing at which the State will be required to prove that Kidd knowingly, intelligently and voluntarily waived his right to counsel.
. Kidd and the State agree that Kidd has a limited right to collaterally attack prior convictions if he asserts that the convictions were obtained through a violation of his constitutional right to counsel. State v. Peters, 2001 WI 74, , 244 Wis. 2d 470, 476, 628 N.W.2d 797. Kidd has done so. He argues that his right to counsel was violated because he did not waive it knowingly, intelligently, and voluntarily. The parties also agree that because Kidd was convicted of two counts of operating a motor vehicle while intoxicated in 1991, the standard we are to use to determine whether this right was violated is found in Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980). Under Pickens, for a waiver of the right to counsel to be valid, "the record must reflect" that the defendant: (1) made a deliberate choice to proceed without counsel, (2) was aware of the difficulties and disadvantages of self-representation, (3) was aware of the seriousness of the charge or charges against him or her, and (4) was aware of the general range of penalties that could have been imposed on him or her. Id. at 563-64. Kidd focuses on the second element, arguing that his right to counsel was violated in two previous drunk driving cases because the record does not reflect that he was aware of the difficulties and disadvantages of self-representation.
. Non-waiver of the right to counsel is presumed, and waiver must be affirmatively shown to be knowing and voluntary. Pickens, 96 Wis. 2d at 555. However, the initial burden is on the defendant to make a prima facie showing that the trial court accepted his plea without determining that the plea was knowing, intelligent and voluntary. See State v. Baker, 169 Wis. 2d 49, 77, 485 N.W.2d 237 (1992). If a defendant makes this showing, and:
lleges that he in fact did not know or understand the information which should have been provided at the plea hearing, the burden will then shift to the state to show by clear and convincing evidence that the defendant's plea was knowingly, voluntarily, and intelligently entered, despite the inadequacy of the record at the time of the plea's acceptance. Id.
. Kidd's two 1991 pleas to operating while intoxicated took place in Dane and Richland counties. In both instances, waiver of counsel questionnaires had not yet come into use. In Dane County, Kidd was told of his right to an attorney and that if he could not afford one, an attorney would be appointed at county expense. Kidd replied that he understood that, and did not want an attorney. In Richland County, Kidd was told the same information. But, telling a defendant of his or her right to an attorney without explaining that an attorney might help him does not convey much information. If a defendant is not aware of the
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