Four-time OWI offender collaterally attacks prior attorney waivers

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A four-time OWI defendant will get another chance to prove he did not knowingly waive his right to legal counsel in two earlier OWI cases, according to a recently issued Wisconsin appellate court opinion.

In the Eau Claire County case State of Wisconsin v. Scott B. Bohlinger, 2012 AP 1060, the three judge appellate panel said that just because a defendant answered simple questions correctly during two colloquies does not mean his waiver of counsel was knowing or intelligently made.

In order for Bohlinger to execute a valid waiver of counsel, although earlier colloquy responses were important, the trial court should have also considered a “range of case-specific factors, including the defendant’s education or sophistication,” which it failed to do, said the appellate court.

In 2011, Bohlinger was charged with his fourth OWI. His court-appointed attorney collaterally attacked his 2008 and 2009 OWI convictions, claiming the defendant had cognitive and learning disabilities that prevented him from making a knowing waiver of counsel.

During a hearing on the collateral attack, defendant’s counsel presented testimony from psychologist Dr. Brian Stress, as well as evidence from a special education teacher who taught Bohlinger in middle and high school.

Language from the 2008 and 2009 OWI attorney waiver colloquies were also read into the record, including the following exchange:

Judge: You’re waiving your right to that lawyer. Did you read the sheet?
Def: Yes.
Judge: Did you understand it?
Def: Yes.
Judge: It tells me you’re 22. You have a high school diploma?
Def: Yup.
Judge: No problem reading or writing the English language?
Def: No.

After reviewing these earlier transcripts and also meeting with Bohlinger in 2011, Stress testified that Bohlinger was not capable of making a knowing and intelligent waiver of his right to counsel in 2008 and 2009.

Stress provided the court with certain apparently compelling numbers: testing showed Bohlinger’s IQ placed him in the second percentile compared to other people his age, with a verbal IQ in the 0.5 percentile. He spelled at a third-grade level and read at a third-grade level, “or less.”

In explaining why Bohlinger generally answered correctly to most colloquy questions, Stress testified that people with the defendant’s cognitive challenges are often “very compliant to authority figures. They basically agree in order to move on.”

It didn’t matter that his examination occurred more than two years after the 2008 and 2009 colloquies, said Stress.

“If you are mildly mentally retarded at 12,” the doctor said, “you are going to be mildly mentally retarded at 45.”

Further testimony from Bohlinger’s special education teacher, Lorraine Smith, reinforced the observations of Stress. Although her routine school-based contact with the defendant ended in 2004, Smith said that Bohlinger did not have the capacity to understand the waiver of counsel.

Although Bohlinger had obtained a special education high school diploma, “he was significantly limited,” Smith said.

The testimony had an impact on the trial court, which concluded that “evidence established that the defendant did not have the cognitive ability to waiver counsel at the time he did.”

However, because Bolinger had not alleged or proven that either the 2008 or 2009 colloquy was defective, the trial court concluded that it could not rely on extrinsic evidence, and denied the motion.

On appeal, the appellate court described that the testimony from Stress, Smith, and other evidence showed that Bohlinger had made his prima facie showing that his Sixth Amendment constitutional right to counsel had been violated.

However, the trial court erred in placing too much stock in the need to find error in the colloquy, and too little stock in “other factors” that a defendant can present to show that he did not knowingly or intelligently waive his right to counsel.

Bohlinger pointed to the 2008 colloquy, where the judge made references to information on a “second sheet,” instead of reciting the information that might have helped Bohlinger understand, or revealed his deficits. Also, the court’s 2009 colloquy transcript indicated that working with an attorney could be useful in order to “help the defendant come up with some good ideas.”

For a defendant who did not have significant intelligence and cognitive disabilities, defense counsel suggested that the earlier colloquies covered the necessary bases; but not for a defendant with Bohlinger’s challenges.

The state suggested that Bohlinger had repeated opportunities to bring his disability to the attention of the court, and even answered “no” when asked if he “was suffering from any kind of mental illness or disorder of any kind.”

Also, Bohlinger’s demeanor at both the 2008 and 2009 colloquies did not give either judge reason to believe he failed to understand the proceedings, the state further asserted.

The court looked to factors established in State v. Klessig, 211 Wis.2d 194 (1997) to indicate whether a defendant had waived counsel, namely: 1) was there a deliberate choice to proceed without counsel, 2) was the defendant aware of the difficulties and disadvantages? 3) was defendant aware of seriousness of charges against him, and 4) was defendant aware of the range of possible sentences.

The court also relied heavily on State v. Ernst, 2005 WI107, which further affirmed a defendant’s ability to collaterally attack prior OWI convictions at a later sentencing hearing.

Alan J. Ernst said that the defendant must point to “specific facts” showing that he did not actually know or understand the information that should have been provided in the earlier proceeding, the court indicated, thus failing to earlier execute a valid waiver.

Although Ernst mentions the role of the colloquy, the court pointed out that Ernst does not mandate that a defective colloquy must “form the basis” of a collateral attack, but can form the basis.

Additionally, the U.S. Supreme Court case Iowa v. Tovar, 541 U.S. 77 (2004) was clear when it described the type of understanding necessary for a defendant to waive right to counsel. Such understanding “depends on a range of case-specific factors,” including defendant education or sophistication.

In addition, Tovar further stands for the proposition that even if transcripts of earlier court proceedings fail to review any constitutional errors, court may still consider factors outside the transcript.

Consequently, the appellate court reversed the trial court’s decision, but remanded the case to the trial court for an evidentiary hearing, because the state now had the obligation to rebut the prima facie evidence.