Motor Vehicles — prior convictions — collateral attacks

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Wisconsin Court of Appeals

Criminal

Motor Vehicles — prior convictions — collateral attacks

Where the defendant is mentally retarded and cognitively disabled, he made a prima facie showing that he did not knowingly waive his right to counsel in his prior drunk driving convictions.

“Bohlinger submitted ample evidence to make a prima facie showing that he did not execute knowing, intelligent, and voluntary waivers of counsel in the 2008 and 2009 cases. His affidavit averred that he has trouble reading and understanding information and that he did not understand the information provided to him during the 2008 and 2009 proceedings. Stress testified that Bohlinger suffers from ‘mild mental retardation or cognitive disability’ and, therefore, did not have the mental capacity to understand the rights he was waiving. Similarly, Smith testified Bohlinger was not capable of reading and understanding the waiver of attorney form he signed and did not have the capacity to understand court proceedings without an attorney. Bohlinger therefore pointed to specific facts showing that he did not have the mental capability to understand the information the courts provided about his right to an attorney and, consequently, did not execute knowing, intelligent, and voluntary waivers of counsel. Even the circuit court admitted that the evidence showed Bohlinger did not have the cognitive capability to waive his right to counsel. Accordingly, Bohlinger made a prima facie showing that his waivers of counsel in the 2008 and 2009 cases were invalid.”

Reversed and Remanded.

Recommended for publication in the official reports.

2012AP1060-CR State v. Bohlinger

Dist. III, Eau Claire County, Lenz, J., Cane, J.

Attorneys: For Appellant: Perrin, Shirlene R., Hudson; For Respondent: King, Gary M., Eau Claire; Larson, Sara Lynn, Madison