On Point

COA clarifies state’s burden to show valid waiver of counsel on a collateral attack motion in decision recommended for publication

State v. Robert M. Christianson, 2024AP1884-CR, 2/12/26, District IV (recommended for publication); case activity (including briefs)

Christianson pleaded no contest to OWI 8th after the circuit court rejected his collateral challenges to 3 prior OWI convictions. On appeal, he renews his arguments that the three convictions are invalid because he did not have legal counsel, he did not knowingly, intelligently, and voluntarily (“KIV”) waive his right to counsel, and the court handling the case failed to find that he was competent to proceed without counsel in each case. COA concludes that Christianson made a prima facie showing that he was denied his constitutional right to counsel in all three cases, but the state met its burden to show that he nonetheless validly waived his right to counsel in 2 of the 3 cases, and the circuit court properly found that he was competent to proceed without counsel.

Christianson filed a motion collaterally attacking: (1) a 1999 Minnesota conviction; (2) a 2000 Wisconsin conviction; and (3) a 2001 Wisconsin conviction. (¶4). Christianson filed an affidavit and various documents, including transcripts, from each case. (¶5). The circuit court held an evidentiary hearing at which Christianson testified and the relevant documents were entered into evidence. (¶6). Christianson was in special education and has a learning disability that interferes with his reading comprehension. (¶7). The circuit court concluded that Christianson knowingly, intelligently, and voluntarily waived his right to counsel in all three cases, and “implicitly determined that Christianson was competent to proceed without counsel in all three cases.” (¶9).

In its analysis of each of the three challenged priors, COA seeks to clarify the various burdens in determining whether pleas were KIV under Klessig and Ernst in the context of a collateral attack. The takeaway is that COA distinguishes between the Klessig requirement that the circuit court insure that the defendant’s waiver is KIV by conducting “a colloquy designed to ensure 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 [the defendant], and (4) was aware of the general range of penalties that could have been imposed on [the defendant]” and the constitutional requirements that must be met for a waiver to have been KIV. (¶¶11, 15). While this might sound like the same requirement, COA concludes that it is not, as Klessig goes beyond the federal case law on the subject; the Klessig colloquy is “‘not constitutionally required’ but is ‘a court-made procedural rule’ imposed pursuant to the court’s ‘superintending and administrative authority[.]'” (¶16).

Thus, a defendant can meet his or her burden to make a prima facie showing by establishing that the circuit court did not provide a Klessig colloquy, and “point[ing] to facts” showing that the defendant did not understand the information that should have been provided. (¶15).  However, when the burden shifts to the state, it need not prove that the defendant understood all of the information normally provided in a Klessig colloquy. Rather, the state must show that the defendant knew and understood the information that is sufficient to satisfy the constitutional requirement in Iowa v. Tovar, 541 U.S. 77 (2004), which only includes: “the nature of the charges against the defendant, the defendant’s right to be counseled regarding the defendant’s plea, and the range of penalties that could be imposed on the defendant following entry of a guilty or no-contest plea.” (¶¶16-18).

COA then considers the record made regarding each of the challenged priors and concludes that Christianson made a prima facie showing that he was denied the right to counsel as to each case. It further concludes, as to the 1999 Minnesota conviction, that the state failed to show that Christianson understood the nature of the charges against him, his right to be counseled regarding his plea, and the range of penalties that could be imposed following his plea. Despite the state having provided evidence that Christianson signed two forms that informed him of his right to counsel, and that the circuit court at the motion hearing found Christianson’s testimony that he “probably” did not understand those forms “suspect,” the state did not to show by clear and convincing evidence either that Christianson “kn[e]w[] what he [was] doing” when the court accepted his plea, or that Christianson was informed of his right to counsel as to that charge because he was not represented by counsel and did not actually enter a plea to that charge. (¶34).

As to the 2000 and 2001 Wisconsin convictions, COA concludes that the state met its burden because the evidence showed that Christianson signed plea (in the 2000 case) and waiver of counsel (in both) questionnaires, and at the plea hearings was informed of the penalties that could be imposed and the elements of the charges, and was asked about his understanding of the waiver form. (¶¶40-53, 60-66).

COA then briefly addresses the competency requirement, noting that “Christianson does not make an argument that the circuit court erred in determining that he was competent to proceed without counsel in the prior cases, separate from his arguments about whether he knowingly, intelligently, and voluntarily waived his right to counsel in those cases” but instead “argues that the . . . courts in the three prior cases failed to find that Christianson was competent to proceed without counsel.” (¶71). Rather than reject Christianson’s competency argument as undeveloped, COA explains why Christianson fails to show that the circuit court’s “implicit determination here, that he was competent in each of the prior cases,” is “totally unsupported by the facts apparent in the record.” (¶71). COA relies on the circuit court’s finding that the documents Christianson signed in the prior cases did not show that he had “issues with his competence to proceed,” and its finding that he had “plenty of experiences with the court,” and Christianson’s failure to identify a specific problem that would prevent him from presenting a defense. (¶¶73-74).

In the conclusion, and without any analysis or citation, COA affirms in part, reverses in part, and remands to the circuit court for resentencing, “this time treating the OWI as a seventh offense.”