State v. Teresa L. Clark ( 2022 )

2022 WI 21SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP1058-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant,
v.
Teresa L. Clark,
Defendant-Respondent.
ON BYPASS FROM THE COURT OF APPEALS
OPINION FILED: April 20, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 15, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Ashland
JUDGE: John P. Anderson
JUSTICES:
HAGEDORN, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., ROGGENSACK and REBECCA GRASSL BRADLEY, JJ.,
joined. ANN WALSH BRADLEY, J., filed a dissenting opinion, in
which DALLET and KAROFSKY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant, there were briefs filed by
Michael C. Sanders, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Michael C. Sanders.
For the defendant-respondent, there was a brief filed by
Garrett M. Gondik and Gondik Law, S.C., Superior. There was an
oral argument by Garrett M. Gondik.
An amicus curiae brief was filed on behalf of Wisconsin State
Public Defender by Katie R. York, appellate division director;
with whom on the brief was Kelli S. Thompson, state public
defender.
2
2022 WI 21NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP1058-CR
(L.C. No. 2018CF171)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant,
FILED
v. APR 20, 2022
Teresa L. Clark, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent.
HAGEDORN, J., delivered the majority opinion of the Court, in which
ZIEGLER, C.J., ROGGENSACK and REBECCA GRASSL BRADLEY, JJ., joined.
ANN WALSH BRADLEY, J., filed a dissenting opinion, in which DALLET
and KAROFSKY, JJ., joined.
APPEAL from an order of the Circuit Court for Ashland County.
Reversed and cause remanded.
¶1 BRIAN HAGEDORN, J. A defendant charged with operating
while intoxicated (OWI) faces an escalating set of penalties
depending on the number of prior convictions. As part of a defense
to an OWI charge, a defendant may challenge a prior conviction——
known as a collateral attack——when the defendant was not
represented and did not knowingly, intelligently, and voluntarily
waive the right to counsel. This court has created a procedure to
No. 2020AP1058-CR
facilitate these challenges. First, by pointing to evidence in
the record, a defendant must establish a prima facie case that the
defendant did not knowingly, intelligently, and voluntarily waive
the right to counsel. Once established, the burden shifts to the
State to prove that the waiver was nonetheless valid.
¶2 The question presented here is whether this same burden-
shifting procedure should apply when the relevant hearing
transcript from the prior conviction is unavailable. We conclude
it should not, and hold that in these circumstances, the defendant
retains the burden to demonstrate the right to counsel was
violated.
¶3 In this case, the circuit court granted Teresa Clark's
motion collaterally attacking two prior convictions, despite the
absence of the relevant transcript. The court explicitly based
its ruling on the burden-shifting regime and the State's failure
to meet its burden to rebut Clark's testimony. In light of our
conclusion that the burden should not shift to the State when no
transcript is available, we reverse the circuit court's order and
remand to the circuit court to allow Clark an opportunity to
satisfy her burden.
I. BACKGROUND
¶4 In 2018, Clark was charged in Ashland County with fourth-
offense counts for both OWI and prohibited alcohol concentration
2
No. 2020AP1058-CR
(PAC).1 Her driving record showed three prior OWI convictions:
one in Chippewa County from 1994, and two in Eau Claire County
from 1995 and 2002. Before the circuit court,2 Clark collaterally
attacked her two Eau Claire County convictions claiming she did
not knowingly, intelligently, and voluntarily waive her right to
counsel. To support her motion, Clark submitted an affidavit
alleging that in both cases she was unrepresented and the Eau
Claire County Circuit Court did not conduct a colloquy with her
regarding the difficulties and dangers of proceeding pro se. The
State acknowledged that Clark's sworn statement entitled her to an
evidentiary hearing.
¶5 Clark's counsel submitted a separate affidavit,
explaining that the relevant documents from both Eau Claire County
convictions no longer existed. The file for the 1995 conviction
was destroyed because 20 years passed since the conviction, and
the transcript for the 2002 case could not be prepared because the
reporter's notes were destroyed 10 years after the conviction.
Both Clark and the State agree that destruction of these records
was consistent with the applicable document retention rules. See
SCR 72.01(18), (47).3
1 Clark was also charged with OWI causing injury and PAC
causing injury, both as second or subsequent offenses.
2 The Honorable John P. Anderson of the Ashland County Circuit
Court presided.
3 SCR 72.01 provides:
3
No. 2020AP1058-CR
¶6 Consequently, the State could not produce transcripts
from either the 1995 or 2002 cases at the motion hearing. Instead,
it submitted the only documents available: a complaint, a bond
sheet, a plea hearing minutes sheet, and a sentencing hearing
minutes sheet——all from the 2002 case. Both the plea hearing
minutes sheet and the sentencing hearing minutes sheet had boxes
checked indicating that Clark appeared "Without counsel" and "Def.
advised of his right to attorney/constitutional rights."4 In her
testimony, Clark acknowledged the information in those documents,
but nevertheless maintained that the judges in those cases did not
sufficiently advise her of her right to an attorney.
¶7 The circuit court was skeptical. It stated that Clark's
credibility was "somewhat lacking," and expressed its
[T]he original paper records of any court shall be
retained in the custody of the court for the following
minimum time periods:
. . .
(18) Misdemeanor case files. All papers deposited with
the clerk of courts in every proceeding commenced under
chapter 968 of the statutes for misdemeanor offenses,
including criminal traffic offenses: 20 years after
entry of final judgment.
. . .
(47) Court reporter notes. Verbatim stenographic,
shorthand, audio or video notes produced by a court
reporter or any other verbatim record of in-court
proceedings: 10 years after the hearing.
4 Clark contended that the use of masculine pronouns on both
hearing minutes sheets rendered their reliability suspect because
Clark is a woman.
4
No. 2020AP1058-CR
"suspicion . . . that the chances of what the defense is asking me
to believe [are] not terribly great." Still, the circuit court
determined it had no choice but to grant Clark's motion
collaterally attacking the two convictions. The circuit court
concluded Clark's testimony shifted the burden to the State, which
submitted insufficient evidence to refute Clark's testimony.
Clark's successful collateral attacks effectively reduced her OWI
and PAC charges from fourth-offenses to first-offenses.5
¶8 The State sought and received leave to file an
interlocutory appeal. It then filed a petition for bypass, which
we granted.
II. DISCUSSION
¶9 In Wisconsin, the penalty for an OWI or PAC offense
depends on the defendant's number of prior OWI/PAC convictions.6
For a defendant's first offense, the penalty is a civil forfeiture.
Wis. Stat. § 346.65(2)(am)1. Second and third offenses are
Clark collaterally attacked only two of her three prior OWI
5
convictions. However, the State may charge second-offense OWI
only if the first and second offenses occurred within a ten-year
span. Wis. Stat. § 346.65(2)(am)2. (2019-20). So, although
Clark's 1994 conviction could count toward a fourth-offense OWI
charge, it cannot count toward a second-offense charge. Compare
§ 346.65(2)(am)4. with § 346.65(2)(am)2.
All subsequent references to the Wisconsin Statutes are to
the 2019-20 version.
Wisconsin's OWI and PAC crimes are defined at Wis. Stat.
6
§ 346.63(1)(a) & (b).
5
No. 2020AP1058-CR
misdemeanors. § 346.65(2)(am)2.-3. Fourth offenses and above are
escalating classes of felonies. § 346.65(2)(am)4.-7.
¶10 The United States Supreme Court has held that when a
crime uses prior convictions as a penalty enhancer in this manner,
the defendant has a limited constitutional right to challenge the
underlying convictions. Burgett v. Texas, 389 U.S. 109, 114-15
(1967); Lewis v. United States, 445 U.S. 55, 66-67 (1980). This
constitutional right to "collaterally attack" prior convictions
applies when the defendant alleges that the prior proceedings
involved certain violations of the defendant's right to counsel.7
Custis v. United States, 511 U.S. 485, 487, 496 (1994); see also
State v. Hahn, 2000 WI 118, ¶28, 238 Wis. 2d 889, 618 N.W.2d 528.
In the OWI and PAC context, this means that a defendant has a right
to collaterally attack a prior conviction when the defendant was
not represented and did not knowingly, intelligently, and
voluntarily waive the right to counsel. State v. Ernst, 2005
WI 107, ¶25, 283 Wis. 2d 300, 699 N.W.2d 92.
¶11 At times, we have employed our superintending authority
in an effort to ensure a defendant's right to counsel is protected.
Most notably, in State v. Klessig, we mandated the use of a
colloquy before a defendant may proceed pro se. 211 Wis. 2d 194,
7The right to counsel is protected by both the United States
and Wisconsin constitutions. The Sixth Amendment of the United
States Constitution provides in part: "In all criminal
prosecutions, the accused shall . . . have the Assistance of
Counsel for his defense." And Article I, Section 7 of the
Wisconsin Constitution provides in part: "In all criminal
prosecutions the accused shall enjoy the right to be heard by
himself and counsel . . . ."
6
No. 2020AP1058-CR
206, 564 N.W.2d 716 (1997). Under Klessig, the circuit court must
conduct a colloquy to ensure that the defendant understands the
right to counsel and the drawbacks to proceeding pro se. Id. If
challenged postconviction, the State is required to demonstrate by
clear and convincing evidence that the defendant properly waived
the right to counsel. Id. at 207. If the circuit court conducts
the Klessig colloquy and the defendant expresses a continued desire
to proceed pro se, that will ordinarily suffice. Id. Absent the
colloquy, the State has the burden to show by clear and convincing
evidence that the defendant properly waived the right to counsel.
Id. The Klessig colloquy is not required by the constitution
itself; it is "a court-made procedural rule" aimed at protecting
the right to counsel. Ernst, 283 Wis. 2d 300, ¶18.
¶12 But what happens when a defendant alleges, after the
conviction is final as a matter of law, that no Klessig colloquy
occurred? Our cases discussing the burden of proof in the
collateral attack context have expressly drawn on our plea
withdrawal jurisprudence. Ernst, 283 Wis. 2d 300, ¶31 & n.11. So
we turn there to provide necessary context for the rules we have
adopted and the issue before us in this case.
¶13 When a defendant raises a postconviction challenge to a
guilty or no contest plea, we have adopted a default procedure and
an alternate procedure. See generally State v. Negrete, 2012
WI 92, ¶¶16-19, 343 Wis. 2d 1, 819 N.W.2d 749. The default
procedure, articulated in State v. Bentley, places the burden on
7
No. 2020AP1058-CR
the defendant to prove a plea's deficiency.8 201 Wis. 2d 303, 309-
10, 548 N.W.2d 50 (1996). This makes sense. Once judgment is
entered, the conviction is afforded a "presumption of regularity,"
and the defendant faces a heavy burden to overcome that
presumption.9 Parke v. Raley, 506 U.S. 20, 29 (1992). The Bentley
procedure "embodies the general rule that a defendant seeking to
withdraw a guilty or no contest plea after sentencing must prove
manifest injustice by clear and convincing evidence." Negrete,
343 Wis. 2d 1, ¶29. It is therefore "the starting point from which
we may determine whether any other pleading standards apply." Id.¶14 The alternate procedure, articulated in State v.
Bangert, applies when the defendant identifies a defect in the
relevant proceeding's record.10 131 Wis. 2d 246, 274-75, 389
N.W.2d 12 (1986). Specifically, the Bangert procedure applies
when "a defendant mak[es] 'a pointed showing' of an error in the
plea colloquy by reference to the plea colloquy transcript."
8This procedure is often given the Bentley label, though it
predates our decision in that case. See Nelson v. State, 54
Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972); Levesque v. State, 63
Wis. 2d 412, 420-21, 217 N.W.2d 317 (1974).
9Assigning this burden to the defendant bringing the
collateral attack is consistent with due process. In Parke v.
Raley, the Court explained that "even when a collateral attack on
a final conviction rests on constitutional grounds, the
presumption of regularity that attaches to final judgments makes
it appropriate to assign a proof burden to the defendant." 506
U.S. 20, 31 (1992).
10We created Bangert's burden-shifting procedure "[a]s a
function of our superintending and administrative authority"; it
is not required by our constitution or statutes. State v. Bangert,
131 Wis. 2d 246, 267, 389 N.W.2d 12 (1986).
8
No. 2020AP1058-CR
Negrete, 343 Wis. 2d 1, ¶20 (quoting another source). Under that
procedure, after the defendant identifies a deficiency, the burden
shifts to the State to prove the conviction's sufficiency.11 Id.,
¶19. Unless the State shows "by clear and convincing evidence
that the defendant's plea was made knowingly, intelligently, and
voluntarily," the defendant's plea withdrawal motion will succeed.
Id.
¶15 In Negrete, we explained that Bangert's procedure is not
warranted when the circumstances justifying its application are
not present:
Where the transcript of the plea hearing is unavailable,
however, Bangert's burden shifting procedure does not
apply, because: (1) the defendant will not be able to
make the requisite showing from the transcript that the
circuit court erred in the plea colloquy, and (2) the
rationale underlying Bangert's burden shifting rule does
not support extending that rule to situations where a
violation is not evident from the transcript. Instead,
the policy of finality counsels that a party seeking to
disrupt a final judgment by withdrawing his plea must
first allege facts which, if true, demonstrate that
manifest injustice has occurred and that relief is
therefore warranted.
Id., ¶31. Thus, in the plea withdrawal context, "where a defendant
is unable to point to a defect evident on the face of a plea
colloquy transcript because such transcript is unavailable, the
more appropriate review . . . is that set forth in Bentley." Id.,
¶33.
The defendant also "must allege that he did not know or
11
understand the information that should have been presented at the
plea hearing." State v. Negrete, 2012 WI 92, ¶30, 343 Wis. 2d 1,
819 N.W.2d 749.
9
No. 2020AP1058-CR
¶16 To summarize, under both the default procedure and the
exception, the defendant seeking to withdraw a plea bears the
initial burden to demonstrate a plea's invalidity. However, if
the defendant points to a defect within the plea colloquy
transcript, such as the absence of a proper colloquy, the defendant
has stated a prima facie challenge to the plea and Bangert's
burden-shifting procedure applies.
¶17 This summary in hand, we return to the burden of proof
for a collateral attack on the grounds that the right to counsel
was violated. In State v. Ernst, we held that a circuit court's
failure to conduct a Klessig colloquy in a prior proceeding could
serve as the basis for a collateral attack. 283 Wis. 2d 300, ¶¶22-
25. In doing so, we expressly adopted the Bangert procedure for
these collateral attack proceedings, concluding there was "no
reason to apply a different procedure" in the collateral attack
context than we would "on a direct attack against a prior
conviction." Id., ¶31. Importantly, Ernst's collateral attack
involved a conviction for which there was a transcript in the
record. See id., ¶6. We did not discuss what our analysis would
look like if no transcript of the prior proceeding was available.
Nevertheless, courts interpreted Ernst to require application of
the burden-shifting procedure in all collateral attack
proceedings. See, e.g., State v. Bohlinger, 2013 WI App 39, ¶¶16,
20-21, 346 Wis. 2d 549, 828 N.W.2d 900.
¶18 We now clarify that the Bangert–type burden-shifting
procedure should apply only where it is most appropriate——i.e.,
where there is a transcript. As we explained in Negrete, without
10
No. 2020AP1058-CR
a transcript, the burden-shifting procedure is unworkable and its
rationale inapplicable. 343 Wis. 2d 1, ¶¶31-32. Whether on direct
appeal or collateral attack, the showing Bangert requires——a
deficiency apparent on the face of a transcript——cannot be made
without a transcript. See id., ¶32. Moreover, automatically
shifting the burden to the State in the absence of a transcript
would put the State "in an untenable position." See State v.
Drexler, 2003 WI App 169, ¶11 n.6, 266 Wis. 2d 438, 669
N.W.2d 182. Notwithstanding the document retention rules we
provided under SCR 72.01(18) and (47), it would require the State
to retain criminal case records and transcripts indefinitely or
risk being caught short-handed in a later OWI prosecution.12 In
Ernst, we said we could not see why "we should apply different
procedures on a direct attack than we do on a collateral attack,"
since doing so "would make the State's burden in a collateral
attack more difficult than in a direct attack." 283 Wis. 2d 300,
¶31 n.11. Because we would not apply Bangert's burden-shifting
procedure without a transcript in the plea withdrawal context,
12 In State v. Drexler, the court of appeals identified this
problem, noting the "practical difficulties . . . that ensue when
a defendant can meet his or her burden of establishing a prima
facie case simply by filing an affidavit providing a self-serving
rendition of events that transpired in court five, ten or even
twenty years earlier." 2003 WI App 169, ¶11 n.6, 266 Wis. 2d 438,
669 N.W.2d 182.
11
No. 2020AP1058-CR
consistency requires that we not apply it without a transcript in
the context of a right to counsel collateral attack either.13
¶19 Clark responds that under State v. Baker, the burden
should automatically shift to the State anytime a defendant makes
a prima facie showing of a constitutional violation in a prior
proceeding, even without a transcript. 169 Wis. 2d 49, 77, 485
N.W.2d 237 (1992). This area of law has developed since Baker was
decided, however. And such a blanket rule conflicts with the
reasoning of our subsequent cases. Baker predated the United
States Supreme Court's direction that it is "appropriate to assign
a proof burden to the defendant" in the collateral attack context.14
Parke, 506 U.S. at 31. It came before we created Klessig's
colloquy requirement. Klessig, 211 Wis. 2d at 206. And it
preceded Ernst, where we held that an insufficient or absent
Klessig colloquy is grounds for collateral attack, adopted the
Bangert procedure for this kind of collateral attack, and explained
that "the State's burden in a collateral attack" should not be
13We do not address whether the burden should remain on the
defendant if the missing transcript was a result of governmental
misconduct.
14 In State v. Baker, we stated that on collateral attack, the
presumption against waiver of counsel conflicts with the
presumption of regularity that attaches to final convictions. 169
Wis. 2d 49, 76-77, 485 N.W.2d 237 (1992). Baker adopted a burden-
shifting framework to "resolve this apparent conflict." Id. at
77. In Parke, however, the Supreme Court rejected Baker's
balancing approach. 506 U.S. at 29-30. The Court expressly
declined to "import" the presumption against waiver into
collateral attack proceedings, holding instead that the
"presumption of regularity that attaches to final judgments"
controls. Id. at 29 (quotation marks omitted).
12
No. 2020AP1058-CR
"more difficult than in a direct attack." 283 Wis. 2d 300, ¶¶22-
25, ¶31 n.11. Finally, Baker came before our holding in Negrete
that the Bangert procedure requires a transcript. Negrete, 343
Wis. 2d 1, ¶16-21. To the extent it is contended Baker stands for
the broad rule Clark advances, that approach is erroneous. It is
inconsistent with subsequent cases and cannot control.15 See
Johnson Controls, Inc. v. Emps. Ins. of Wausau, 2003 WI 108, ¶98,
264 Wis. 2d 60, 665 N.W.2d 257 (explaining that departing from
precedent is warranted when "changes or developments in the law
have undermined the rationale behind a decision" and when "the
precedent has become detrimental to coherence and consistency in
the law").
¶20 To recap, if a defendant collaterally attacking a prior
OWI/PAC conviction cannot point to a defect in the relevant
transcript, the burden-shifting procedure does not apply.
Instead, the defendant must carry the burden to demonstrate that
a violation occurred.
¶21 In the case before us, Clark claims that the Eau Claire
County Circuit Court in 1995 and 2002 failed to conduct the Klessig
colloquy for two of her prior convictions. But the transcript
necessary to substantiate that claim does not exist. Under the
standard we articulate here, the lack of a transcript means that
Clark retains the burden to prove a violation of her right to
counsel occurred. The circuit court shifted the burden to the
15The same is true for Drexler, 266 Wis. 2d 438, ¶¶10-11, to
the extent it is inconsistent with this opinion.
13
No. 2020AP1058-CR
State, however, so we reverse its order granting Clark's motion
collaterally attacking her 1995 and 2002 convictions. We remand
with instructions for the circuit court to afford Clark an
opportunity to satisfy her burden.16
By the Court.——The order of the circuit court is reversed and
the cause is remanded to the circuit court.
In briefing, Clark requested a remand for a new evidentiary
16
hearing in the event we reversed the circuit court's application
of Bangert's burden-shifting procedure. The State did not object
to Clark's request.
14
No. 2020AP1058-CR.awb
¶22 ANN WALSH BRADLEY, J. (dissenting). In State v.
Baker, this court carefully balanced two presumptions: (1) the
presumption of regularity that attaches to a judgment, and (2) the
presumption against waiver of counsel. 169 Wis. 2d 49, 76, 485
N.W.2d 237 (1992). Weighing the concerns attendant to each of
these presumptions and providing direction to future courts in a
case such as this, the court fashioned a procedure on how to
allocate the burden of proof. Namely, the Baker court adopted a
burden-shifting structure.
¶23 Initially, the burden is on the defendant to make a prima
facie showing and then it shifts to the State. "Because the
defendant must overcome the presumption of regularity attached to
the prior conviction, the defendant bears the initial burden of
coming forward with evidence to make a prima facie showing of a
constitutional deprivation in the prior proceeding." Id. at 77.
¶24 If such a showing is made, the burden then shifts to the
State: "If the defendant makes a prima facie showing of a
violation of the right to counsel, the state must overcome the
presumption against waiver of counsel and prove that the defendant
knowingly, voluntarily, and intelligently waived the right to
counsel in the prior proceeding." Id.¶25 Casting Baker aside, the majority leaves in its stead a
hurdle that is nigh insurmountable for a defendant. The majority
dismisses the presumption against waiver of counsel with a wave of
the hand, tucking it away in a footnote, and failing to weigh it
against the competing presumption of regularity.
1
No. 2020AP1058-CR.awb
¶26 The majority's error is twofold. First, it tries to put
a square peg in a round hole, applying the law of plea withdrawal
to a collateral attack without the careful balancing of interests
the Baker court conducted, and that remains required. Second, the
majority foists upon Clark and similarly situated defendants a
nearly impossible burden where a transcript is unavailable through
no fault of their own.
¶27 Accordingly, I respectfully dissent.
I
¶28 In 2018, Teresa Clark was charged with OWI and PAC, both
as a fourth offense. Majority op., ¶4. She sought to collaterally
attack two of her prior convictions, from 1995 and 2002, asserting
that each of those convictions occurred without counsel and that
she did not knowingly, intelligently, and voluntarily waive the
right to counsel. Id.¶29 To support her motion to collaterally attack these prior
convictions, Clark submitted an affidavit. Id. In the affidavit,
Clark averred that she was unrepresented in the two cases subject
to her collateral attack, and that at no time did the judge perform
a colloquy regarding the disadvantages of proceeding pro se, the
seriousness of the charges, or the range of penalties to which she
was subject. She further alleged that at no point did the judge
perform a colloquy to ensure that she was making a deliberate
choice to proceed without counsel.
¶30 However, the relevant files and transcripts for Clark's
prior convictions no longer exist. Id., ¶5. The file for the
1995 conviction has been destroyed because 20 years have elapsed
2
No. 2020AP1058-CR.awb
since the conviction, and the court reporter's notes for the 2002
case have likewise been destroyed because 10 years have passed
since that conviction. Id.
¶31 There is no allegation that the destruction of these
records demonstrates anything untoward. Indeed, Clark and the
State agree that the destruction of these records was consistent
with supreme court rules regarding document retention. Id.; see
SCR 72.01(18), (47).
¶32 In response to Clark's motion, the State submitted
several documents from the 2002 case that had not been destroyed:
a complaint, bond sheet, plea hearing minutes sheet, and sentencing
hearing minutes sheet. Majority op., ¶6. The minutes sheets from
both the plea hearing and sentencing hearing had boxes checked
indicating that Clark appeared without counsel and had been
"advised of his right to attorney/constitutional rights." Id.1
¶33 After an evidentiary hearing at which Clark testified,
the circuit court granted Clark's motion to collaterally attack
her prior convictions. It concluded that Clark's testimony that
she did not knowingly, intelligently, and voluntarily waive her
right to counsel shifted the burden to the State, and that the
State submitted insufficient evidence to refute Clark's testimony.
Id., ¶7.
¶34 The majority now reverses the circuit court, determining
that the usual burden-shifting procedure does not apply when a
1 As the majority observes, "Clark contended that the use of
masculine pronouns on both hearing minutes sheets rendered their
reliability suspect because Clark is a woman." Majority op., ¶6
n.4.
3
No. 2020AP1058-CR.awb
transcript of a prior conviction is unavailable. Id., ¶2.
Instead, "in these circumstances, the defendant retains the burden
to demonstrate the right to counsel was violated." Id.
¶35 In the majority's view, the usual "burden-shifting
procedure should apply only where it is most appropriate——i.e.,
where there is a transcript." Id., ¶18. It posits that "without
a transcript, the burden-shifting procedure is unworkable and its
rationale inapplicable" and that "automatically shifting the
burden to the State in the absence of a transcript would put the
State 'in an untenable position.'" Id. (citing State v. Drexler,
2003 WI App 169, ¶11 n.6, 266 Wis. 2d 438, 669 N.W.2d 182).
II
¶36 The majority's first error is in applying the law of
plea withdrawal to a collateral attack while neglecting the careful
balancing of interests that is necessary to resolve this case, and
which the Baker court conducted. From 1992 until today, Baker
established the burdens on various parties in the case of a
collateral attack. 169 Wis. 2d at 77. Baker, like this case,
involved a missing transcript——the court there noted that the
transcript had been "lost." Id. at 58.
¶37 At the outset of its analysis, the Baker court observed
that there are two competing presumptions at work when a defendant
collaterally attacks a prior conviction on the basis of a violation
of the right to counsel: the presumption of regularity of a
4
No. 2020AP1058-CR.awb
judgment2 and the presumption against waiver of counsel.3 Id. at
76.
¶38 To resolve this "apparent conflict of presumptions," the
court adopted the following allocation of the burdens of production
and persuasion. "Because the defendant must overcome the
presumption of regularity attached to the prior conviction, the
defendant bears the initial burden of coming forward with evidence
to make a prima facie showing of a constitutional deprivation in
the prior proceeding." Id. at 77. In the event the defendant
makes such a showing, the burden shifts to the State: "If the
defendant makes a prima facie showing of a violation of the right
to counsel, the state must overcome the presumption against waiver
of counsel and prove that the defendant knowingly, voluntarily,
and intelligently waived the right to counsel in the prior
proceeding." Id.¶39 Paying little mind to the presumption against the waiver
of counsel, the majority jettisons this careful balancing, and
instead erroneously applies the law of plea withdrawal to
collateral attacks based on a violation of the right to counsel.
2"[U]pon collateral attack a judgment carries with it a
presumption of regularity." State v. Baker, 169 Wis. 2d 49, 76,
485 N.W.2d 237 (1992); see also Parke v. Raley, 506 U.S. 20, 29
(1992) (indicating that such a presumption, which attaches to final
judgments, is "deeply rooted in our jurisprudence").
3Courts are to "indulge in every reasonable presumption
against waiver of counsel." Baker, 169 Wis. 2d at 76 (citing
Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938)). Waiver may not
be presumed from a silent record, but rather "the record must
disclose unequivocal, express waiver." Spencer v. State, 85
Wis. 2d 565, 571, 271 N.W.2d 25 (1978).
5
No. 2020AP1058-CR.awb
In doing so, it declares that Baker "cannot control." Majority
op., ¶19.
¶40 The majority mistakenly discounts the important
presumption against waiver of counsel. Yet, it is the presumption
against waiver of counsel that distinguishes a collateral attack
based on a violation of the right to counsel from a run-of-the-
mill plea withdrawal.
¶41 In this case and for future collateral attacks where a
transcript is missing, the majority adopts the procedure outlined
in State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996). But
Bentley is not a good fit because it did not consider the
presumption against waiver of counsel.
¶42 Indeed, the Bentley court had no need to consider the
presumption against waiver of counsel and to balance the competing
presumptions as the court in Baker did. Which makes sense, for
the simple reason that a claim that the right to counsel was not
knowingly, intelligently, and voluntarily waived would never arise
in a Bentley case.
¶43 The Bentley framework applies when an error extrinsic to
the plea colloquy is raised. State v. Howell, 2007 WI 75, ¶74,
301 Wis. 2d 350, 734 N.W.2d 48. Examples of such an error are a
claim of ineffective assistance of counsel or an assertion of
coercion. Id. A claim that the right to counsel was not knowingly,
intelligently, and voluntarily waived generally involves a defect
in the colloquy itself and follows a completely different
framework——if the defendant makes a prima facie case of a defective
colloquy, then the burden is shifted to the State to demonstrate
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that the plea was knowingly, intelligently, and voluntarily
entered despite the inadequacy of the record at the time of the
plea's acceptance. State v. Bangert, 131 Wis. 2d 246, 274, 389
N.W.2d 12 (1986).
¶44 The presumption against waiver of counsel should retain
vitality and should apply equally to defendants whose transcripts
still exist and to those whose transcripts have been destroyed.4
But without any modicum of analysis of the presumption against
waiver of counsel, the majority changes its operation with regard
to the subset of defendants who no longer have access to
transcripts from their previous cases. The Baker court got it
right, and we should not be so cavalierly departing from that
decision.
The majority posits that Parke, 506 U.S. 20, rejected the
4
idea that the presumption against waiver of counsel applies to a
collateral attack. Majority op., ¶19 n.14. Parke is
distinguishable.
The defendant in Parke admitted that he was represented by
counsel at the proceedings subject to collateral attack and
presented no evidence in support of his motion other than his
statement on the stand that he "could not remember whether he was
specifically told about the rights he waived by pleading guilty."
Parke, 506 U.S. at 24. He accordingly argued that "imposing even
a burden of production on him is fundamentally unfair because a
constitutionally protected right is in question." Id. at 31(internal quotation omitted). The Parke court determined: "On
collateral review, we think it defies logic to presume from the
mere unavailability of a transcript (assuming no allegation that
the unavailability is due to governmental misconduct) that the
defendant was not advised of his rights." Id. at 30.
Clark is not asking this court to engage in a similar
presumption. In contrast here, rather than contesting the burden,
Clark accepts her burden of production, and indeed met it with an
affidavit and testimony that establish a prima facie violation of
the right to counsel.
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III
¶45 The majority's second error lies in foisting upon Clark
and similarly situated defendants a nearly impossible burden.
Making things worse is the fact that defendants are saddled with
this burden due to no fault of their own but merely because of the
operation of document retention rules which likely are outdated
given the reality of today's electronic filing and storage.
Indeed, given the vast amounts of electronic data that can be
stored in a relatively small physical area and the complications
that may arise due to the destruction of case files, it may be
time for this court to consider revisiting the record retention
rules that caused the scenario we face here.
¶46 Decrying the hardship that would be placed on the State
by applying the usual burden-shifting framework, the majority
laments that "automatically shifting the burden to the State in
the absence of a transcript would put the State 'in an untenable
position.'" Majority op., ¶18 (citing Drexler, 266 Wis. 2d 438,
¶11 n.6). But what about the defendant? The majority's position
puts the defendant in a similarly untenable position.
¶47 The State contends, and the majority apparently agrees,
that Clark should be required to "show" that she did not waive
counsel in the prior proceeding and that it is not enough for her
to merely "say" it. But how is she supposed to "show" it without
a transcript? Paying no mind, the majority besets a burden that
is nearly impossible for a defendant to overcome.
¶48 Admittedly, Clark's testimony and affidavit are "self-
serving." But in this type of case that is all we have. Assuming
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No. 2020AP1058-CR.awb
that Clark is telling the truth (as apparently the circuit court
determined) and that she did not validly waive her right to counsel
in the prior proceeding, how else is she to convey that to the
court other than by affidavit and her testimony? Yet the
majority's approach casts aspersions on a defendant's testimony
simply because of its source, in effect per se discounting the
testimony of a defendant who may be vindicated by the transcript's
corroboration of the defendant's memory.
¶49 And what did Clark do to have this steep hill placed in
front of her? Nothing. The documents she needs to prove her case
were destroyed not because of anything Clark did, but because of
the passage of time and the force of somewhat arbitrary rules of
government regulation.
¶50 Chief Justice Abrahamson placed a fine point on the
problem with such a procedure in her dissent in State v. Negrete,
2012 WI 92, ¶58, 343 Wis. 2d 1, 819 N.W.2d 749 (Abrahamson, C.J.,
dissenting). There, Chief Justice Abrahamson wrote:
Everyone agrees that it is unfortunate that there is no
transcript of Negrete's 1992 plea hearing. But whose
fault is that? If there is "fault," it lies somewhere
in the judicial system, not with Negrete. Yet, the
majority opinion places the burden caused by the missing
transcript entirely on Negrete. Negrete is asked to
prove by clear and convincing evidence that the warnings
were not given despite not having had the opportunity to
put forth any evidence beyond his written assertions
that the required warnings were not given and he did not
know the consequences of his plea. The majority places
an insurmountable hurdle in front of Negrete.
Id. (internal citation omitted).
¶51 The same is true of Clark in this case, and of other
defendants who will encounter destroyed files and deleted court
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No. 2020AP1058-CR.awb
reporter's notes. A defendant should not be made to bear the
burden of a problem created by document retention rules, and a
defendant's testimony should not be immediately discounted just
because the usual procedure would be too difficult for the State.
¶52 It is not hard to imagine the procedure the majority
adopts today potentially visiting fundamental injustice upon a
defendant who was denied the right to counsel in a previous
proceeding. Without a transcript to provide corroboration and
unable to demonstrate the violation of the right to counsel with
anything other than the defendant's testimony, such a defendant is
left only to hope in vain that anyone will listen. And the majority
fosters summary dismissal of such fundamental entreaties.
¶53 For the foregoing reasons, I respectfully dissent.
¶54 I am authorized to state that Justices REBECCA FRANK
DALLET and JILL J. KAROFSKY join this dissent.
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