Bert Roehl appeals an order dismissing his legal malpractice claim against Sharon Gisselman. Roehl’s complaint alleged that Gisselman negligently represented him in a fifth-offense OWI case by failing to collaterally attack one of his previous OWI convictions. The circuit court granted Gisselman’s motion to dismiss, concluding Roehl’s complaint did not state a claim for legal malpractice.
A defendant may collaterally attack a prior conviction in an enhanced sentence proceeding only on the ground that the defendant was denied the constitutional right to counsel. State v. Hahn, 2000 WI 118, ¶25, 238 Wis. 2d 889, 618 N.W.2d 528. Because Roehl does not allege that he was denied counsel in his previous OWI case, he could not have collaterally attacked that conviction in the fifth-offense OWI proceeding. Thus, Gisselman was not negligent for failing to challenge Roehl’s prior conviction because the challenge would have failed. Accordingly, we affirm the order dismissing Roehl’s claim. This opinion will not be published.
2009AP2801 Roehl v. Gisselman
Dist III, Shawano County, Habeck, J., Per Curiam
Attorneys: For Appellant: Lister, Ryan D., Wausau; For Respondent: Gisselman, Sharon M., Wausau