COA: Collateral attack on prior OWI must allege defendant did not know potential penalties even if plea colloquy was defective; affiant requesting warrant for blood draw need not have witnessed arrest.
State of Wisconsin v. Jonathon L. Sundermeyer, 2024AP2007-CR, 3/3/26, District III (not recommended for publication); case activity
The COA concludes a defective plea colloquy was not sufficient to collaterally attack the defendant’s prior OWI conviction where the defendant did not establish he was unaware of the potential penalties for his prior conviction. The COA also determined an officer’s affidavit in support of a blood draw complies with the constitutional requirement for an an affidavit to be supported by oath or affirmation where the officer was not present when the defendant was arrested for operating while intoxicated (OWI) but relied on information from an officer who was present.
A warrant was issued to draw Jonathon Sundermeyer’s blood after he was arrested for drunk driving. His blood alcohol concentration was .173 and he was charged with OWI and operating with a prohibited alcohol concentration (PAC) as a fifth offense. Sundermeyer pled no contest to operating with a PAC after his motion to strike his 2001 conviction for operating while intoxicated as a penalty enhancer and his motion to suppress the blood test result were denied. (¶¶ 5-8).
Sundermeyer renewed those motions on appeal. He argued the 2001 conviction should not qualify as a penalty enhancer because he was not represented by counsel and did not knowingly, intelligently, and voluntarily waive his right to counsel. Sundermeyer asserted that his waiver was invalid because the circuit court did not inform him of the penalties to which he was exposed and that it was not required to accept the State’s sentencing recommendation. (¶ 13). Although the COA found the circuit court’s plea colloquy in 2001 was deficient, it concluded Sundermeyer did not establish he was unaware of the potential penalties when he waived his right to counsel. (¶ 15). The COA noted that, at the hearing in 2001, the State set forth the penalty it would recommend, referred to the relevant OWI sentencing guidelines, and Sundermeyer advised the circuit court that he understood his discussions with the State. The criminal complaint, moreover, referred to the minimum and maximum penalties and. (¶ 14). Sundermeyer therefore did not make a prima facie case that his waiver was not knowingly entered because he did not allege in his motion that he did not know the potential penalties. (¶ 15).
The COA rejected Sundermeyer’s argument that proof of a deficient plea colloquy is sufficient to prove he did not know the potential penalties because SCOW held in Ernst that a valid collateral attack on a prior conviction requires the defendant to show he did not know the information which should have been provided. (¶ 20). The COA also rebuffed Sundermeyer’s request to remand the case to the circuit court to allow him to amend his pleading because a defendant is required to present all grounds for relief in his initial motion. (¶ 21).
Regarding the warrant for a blood draw, Sundermeyer argued that it was invalid because it was not supported by oath or affirmation of a deputy who was at the scene of the investigative stop. Sundermeyer noted that he was stopped by Deputy Xiong, but the affidavit was signed by Deputy Gazda and notarized by Lieutenant Knoeck. (¶ 26).
The COA recognized that the United States and Wisconsin constitutions require a search warrant to be issued upon probable cause supported by oath or affirmation. (¶ 24). However, Deputy Gazda acknowledged in his affidavit that he relied on another officer’s reports and the COA concluded an officer may rely on the observations, reports, or conclusions of another officer when submitting an affidavit in support of a warrant. (¶ 31). The issue appears to be one of first impression, but the COA compared the case to other contexts where Wisconsin courts consider that a police force acts as a unit. (¶ 31) (citing Mabra).