On Point: E. Enhancers

State v. Teresa L. Clark, 2022 WI 21, 4/20/22, reversing the circuit court on bypass, case activity (including briefs)

A defendant may collaterally attack a prior OWI conviction if she was not represented by counsel and did not knowingly, intelligently, and voluntarily waive the right to counsel during that proceeding. Once she points to evidence of this claim, the burden shifts to State to prove a valid waiver. In a split opinion, SCOW now holds that if the transcript of the prior OWI hearing is unavailable, the burden doesn’t shift. The defendant must prove that her right to counsel was in fact violated–which is virtually impossible.

State v. Corey Rector, 2020AP1213, certification filed 11/24/21; granted 2/16/22; affirmed 5/23/23; District 2; case activity (including briefs)

Issue (from the certification):

Whether the plain meaning of “separate occasions” in the sex-offender-registration statute means that the two convictions must have occurred at different times in two separate proceedings so that the qualifying convictions occurred sometime before a defendant is convicted in the current case. Stated otherwise, can the qualifying convictions occur simultaneously, as they did in this case, and as Wittrock and Hopkins held?

State v. Scott William Forrett, 2019AP1850-CR, petition for review of a published decision of the court of appeals granted 9/14/21; case activity (including links to briefs)

Issue presented

Wisconsin’s escalating OWI penalty scheme counts a person’s refusal to consent to a blood draw as a basis for enhancing the penalty for future offenses. Is that scheme unconstitutional because it penalizes a defendant’s exercise of the Fourth Amendment right to be free from an warrantless search?

State v. Christopher W. LeBlanc, 2020AP62-CR, District 2, 7/30/21 (not recommended for publication); case activity (including briefs)

If a sentencing court imposes an excessive term of initial confinement (IC) or extended supervision (ES) when sentencing a defendant under Truth-in-Sentencing (TIS), the defendant “is entitled to a new sentencing hearing as a matter of law unless the nonexcessive term of IC or ES is at the maximum, in which case the court has the discretion to commute the excessive component to the maximum term pursuant to Wis. Stat. §973.13 (2019-20) without holding a new sentencing hearing.” (¶1).

State v. Michael James Brehm, 2020AP266, 6/29/21, District 1 (not recommended for publication); case activity

Brehm was arrested after a neighbor called 911 to report that he was firing a gun out his window into the air. Police recovered a gun and Brehm admitted to the shooting. He eventually pleaded guilty to being a felon in possession of a firearm.

State v. Teresa L. Clark, 2020AP1058-CR, bypass granted 4/27/21; case activity

Issue: (adapted from State’s COA brief):

When the State uses a prior OWI conviction to enhance the charge and sentence for a subsequent OWI offense, a defendant may collaterally attack the prior conviction. If the defendant proves that her right to counsel was violated in the prior case, the conviction may not be used to enhance the charge and sentence in the new case. Does the burden shift to the State when there is no transcript available to show that the circuit court violated the defendant’s right to counsel?

County of Green Lake v. Lori Melchert, 2020AP473, District 2, 2/24/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Melchert’s challenge to a prior OWI that was improperly treated as a first offense comes way too late under City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738, and City of Cedarburg v. Hansen, 2020 WI 11, 390 Wis. 2d 109, 938 N.W.2d 463.

State v. Alfonso C. Loayza, 2021 WI 11, 2/11/21, reversing a per curiam decision of the court of appeals; case activity (including briefs)

The supreme court unanimously holds that the state proved by a preponderance of the evidence that Loayza was convicted of OWI in California in 1990, making his current Wisconsin offense a eighth offense.

State v. Jeffrey R. Lindahl, 2019AP997-CR, District 3, 12/15/20 (one-judge decision; ineligible for publication); case activity (including briefs)

In State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, the supreme court held that a collateral attack against a prior conviction used to enhance a penalty must be based on the denial of the right to counsel in the prior case. The court of appeals holds that “denial of the right to counsel” doesn’t include denial of the right to the effective assistance of counsel.

State v. Jack Ray Zimmerman, Jr., 2020AP475, District 2, 11/4/20 (one-judge decision; ineligible for publication); case activity (including briefs)

….not “lifetime since January 1, 1989.”