COA holds plea questionnaire and waiver of counsel forms insufficient to shift burden for collateral attack
State v. Matthew John Flynn, 2024AP2306-CR, 12/17/25, District II (ineligible for publication); case activity
Flynn appeals his operating while intoxicated, third offense, conviction and an order denying his collateral attack motion. He argues that the circuit court erred in denying his motion because he alleged sufficient facts to suggest that the prior conviction did not rest upon a knowing, intelligent, and voluntary waiver of his right to counsel. COA affirms.
Flynn filed a motion collaterally attacking a prior OWI conviction from Sheboygan County in 2011. He contended that his plea in the 2011 case, in which he proceeded pro se, was invalid because the plea questionnaire and waiver of attorney form he signed in connection with his plea incorrectly listed the maximum possible penalty he faced as 30 days in jail, when it was six months. Although there was no transcript available, Flynn argued that the plea questionnaire and waiver of attorney form were sufficient to make a prima facie case that his waiver of counsel in the 2011 case was invalid and shift the burden to the state to prove that his waiver was knowing, intelligent, and voluntary. (¶3). He correctly identified the mandatory minimum penalty, and he received the mandatory minimum sentence. (¶4).
Because Flynn could not obtain a transcript, the circuit court denied his motion, relying on State v. Clark, 2022 WI 21, 401 Wis. 2d 344, 972 N.W.2d 533. The court concluded that Flynn had not overcome the presumption that the colloquy that preceded his 2011 plea was conducted properly. (¶¶5-7).
Flynn now argues that Clark “cannot be viewed as barring the use of portions of a record apart from the transcript in order to establish the prima facie burden under either Ernst or Klessig, both of which remain good law.” (¶12). COA disagrees, as Clark “was unequivocal in identifying the availability of a transcript as the determining factor” in whether the burden shifts to the state to prove the waiver was knowing, intelligent and voluntary. The court “sees nothing in Clark to suggest that portions of the record other than the transcript may be used” to shift the burden.
COA reasons as follows:
Flynn offered the plea questionnaire, waiver of attorney form, and his affidavit in which he stated that the circuit court “did not inform [him] of what the maximum penalties for the [OWI] charge were” when he entered his plea and did not “correct the information that [he] had included in” the plea questionnaire and waiver of attorney form. Even if this court were to conclude that these documents were sufficient to overcome the presumption that Flynn’s waiver of counsel was valid, he has not demonstrated that a manifest injustice occurred because the circuit court in the 2011 case accepted his plea. Flynn has not alleged that he was adversely affected by any defect in his plea colloquy; to the contrary, he received the benefit of the plea agreement. Flynn was charged with OWI, second offense, which carried a maximum prison sentence of six months. In accepting the plea, the court sentenced him to the minimum possible term of confinement, five days. His situation is not one in which the court failed to correct his apparent belief that he faced, at most, 30 days’ imprisonment and then sentenced him to a term of confinement longer than that. Instead, Flynn received the shortest possible sentence for his plea.
(¶15) (citations omitted). Moreover, Flynn merely asserted that had he known the correct maximum penalty, he “would have reconsidered whether it was wise to proceed pro se.” COA concludes this is not enough to show a manifest injustice. (¶16).