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  • April 26, 2022

    Missing Transcript Does Not Shift Burden to Prosecution in Collateral Attack on Conviction

    The Wisconsin Supreme Court has ruled that a defendant collaterally attacking a prior conviction based on a claimed violation of her right to counsel bears the burden of proving that violation, even where no transcript of the prior trial exists.

    Jeff M. Brown

    Cabinet Drawer Full of Government Records

    April 26, 2022 – The Wisconsin Supreme Court has ruled that a defendant collaterally attacking a prior conviction based on a claimed violation of her right to counsel bears the burden of proving that violation, even where no transcript of the prior trial exists.

    In State v. Clark, 2022 WI 21 (April 20, 2022), the supreme court held (4-3) that the standard for adjudicating a collateral attack on a plea should apply to a collateral attack on a conviction based on an alleged violation of the right to counsel.

    Justice Brian Hagedorn wrote the majority opinion, joined by Chief Justice Annette Ziegler, Justice Patience Roggensack, and Justice Rebecca Grassl Bradley. Justice Ann Walsh Bradley dissented, joined by Justices Rebecca Dallet and Jill Karofsky.

    Collateral Attack

    In 2018, the Ashland County District Attorney charged Teresa Clark with fourth-offense counts for operating while intoxicated (OWI) and prohibited alcohol concentration.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Clark had three prior OWI convictions: one in Chippewa County in 1994 and two in Eau Claire County in 1995 and 2002.

    In the Ashland County Circuit Court, Clark collaterally attacked the two Eau Claire convictions. She claimed that she didn’t knowingly, intelligently, and voluntarily waive her right to counsel.

    Records Destroyed

    Clark’s lawyer submitted an affidavit, explaining that records from the two Eau Claire convictions no longer existed.

    Under document retention rules, records related to the 1995 conviction were destroyed because the conviction was 20 years old and a transcript could not be generated because the court reporter’s notes had been destroyed 10 years after the conviction.

    With no transcripts available for the 1995 and 2002 convictions, the state presented the only documents that it could find: a complaint, bond sheet, plea hearing minutes sheet, and a sentencing minute sheet from the 2002 case.

    Burden Shifted to Prosecution

    On the plea hearing minutes sheet and the sentencing hearing minutes sheet, a box had been ticked showing that Clark appeared “without counsel” and “Def. advised of his right to attorney/constitutional rights.”

    Clark acknowledged the information in the documents from the 2002 conviction. But she maintained that both the judge in the 1995 case and the judge in the 2002 case failed to sufficiently advise her of her right to counsel.

    The circuit court ruled that Clark’s testimony meant that the burden of proof shifted to the state, which was unable to refute Clark’s testimony because the records from the 1995 and the 2002 cases had been destroyed.

    As a result, the circuit court granted Clark’s motion collaterally attacking the convictions, and reduced the OWI and PAC charges from fourth offenses to first offenses.

    Burden-shifting Rule Doesn’t Apply

    In his opinion for the majority, Justice Hagedorn explained that supreme court cases addressing the burden of proof born by a defendant collaterally attacking a conviction have historically drawn on cases addressing the burden of proof born by a defendant seeking to withdraw a plea deal.

    Under the plea withdrawal cases, Hagedorn explained, the defendant bears the burden of showing that the plea was not made knowingly, intelligently, and voluntarily.

    But if the defendant identifies a defect in the transcript of the required plea colloquy, Hagedorn noted, under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), the burden shifts to the state to show by clear and convincing evidence that the defendant made the plea knowingly, intelligently, and voluntarily.

    That burden-shifting rubric should apply only where a transcript is available, Justice Hagedorn wrote, because without a transcript “the burden-shifting procedure is unworkable and its rationale inapplicable.”

    With no transcript, Hagedorn explained, it would be impossible to demonstrate a mistake apparent on the face of the transcript.

    “Automatically shifting the burden to the State in the absence of a transcript would put the State ‘in an untenable position,’” Justice Hagedorn wrote.

    “Instead, the defendant must carry the burden to demonstrate that a violation occurred.”

    Dueling Precedents

    Clark argued that under State v. Baker, 169 Wis. 2d 49, 485 N.W.2d 237 (1992), the burden should shift to the state whenever a defendant makes a prime facie showing of a constitutional violation in a prior proceeding.

    But decisions handed down by the supreme court subsequent to Baker undercut that argument, Justice Hagedorn explained.

    Hagedorn cited State v. Ernst, 283 Wis. 2d 300, 699 N.W.2d 92 (2004) and State v. Negrete, 343 Wis.2d 1, 819 N.W.2d 749 (2012).

    In Ernst, the supreme court held that the burden born by the state facing a collateral attack on a conviction shouldn’t “be more difficult than in a direct attack.”

    In Negrete, the supreme court held that the burden-shifting procedure mandated by Bangert applied only if there was a transcript.

    Insurmountable Burden for Defendants

    In her dissent, Justice A.W. Bradley argued that by “[c]asting Baker aside,” the majority had “erected “a hurdle that is nigh insurmountable for a defendant.”

    It was a mistake to apply case law adjudicating a collateral attack on a plea bargain to a case involving a collateral attack based on an alleged violation of a defendant’s right to counsel, Justice A.W. Bradley argued.

    By doing so, A.W. Bradley explained, the majority “jettisons” the balance between the presumption against the waiver of counsel and the presumption in the finality of convictions that lies at the heart of the holding in Baker.

    Justice A.W. Bradley also criticized the majority for ignoring that applying the burden-shifting procedure in the absence of a transcript put Clark in a position no less untenable than applying the procedure would put the state.

    “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?”



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