### COURT OF APPEALS DECISION DATED AND FILED July 31, 2024

Samuel A. Christensen Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2023AP862

- CR Cir. Ct. No. 2021CF 860 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

S TATE OF W ISCONSIN ,
P LAINTIFF - R ESPONDENT ,

V .
K YLE T. B RAUN ,
D EFENDANT - A PPELLANT .

APPEAL from a judgment of the circuit court for Waukesha County:
JENNIFER R. DOROW , Judge. Affirmed

.

Before Gundrum, P.J., Neubauer and Grogan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in W IS . S TAT . R ULE 809.23(3).No. 2023AP862

- CR

2 ¶ 1 PER CURIAM. Kyle T. Braun appeals from a judgment of
conviction enter ed after he pled guilty to one count of operating while intoxicated (OWI), fourth offense , in violation of W IS

. S TAT

. § 346.63(1)(a) (2021

- 22)

. 1 Braun contends that the circuit court erred in denying his motion to collaterally
attack his second OWI convic tion so that it would not be factored into his sentence. In the motion, Braun argued that his second conviction, which also rested on a guilty plea, was invalid because he did not knowingly, intelligently, and voluntarily waive his right to counsel before he pled guilty. Because Braun was unable to produce a transcript of the plea hearing for his second conviction or present other evidence sufficient to establish what occurred at the hearing, w e agree with the circuit court that Braun fail ed to show that his second conviction was obtained in violation of his right to counsel. Accordingly, we affirm.

¶ 2 In August 2021, the State charged Braun with OWI , fourth offense, and operating with a prohibited alcohol concentration , fourth offense. 2 As Braun had three prior OWIs, a fourth OWI conviction would constitute a Class H Felony under Wisconsin’s escalating penalty scheme for repeat OWIs. See W IS

. S TAT

. § 346.65(2)(am)4

. Braun moved to collaterally attack and preclude the use of his second OWI conviction in sentencing. He argued his second conviction, which occurred in April 2002, was constitutionally invalid because he did not give a knowing, voluntary, and intelligent w aiver of his right to counsel at his plea hearing. In support of his motion, B raun averred in an affidavit that no colloquy

1 All references to the Wisconsin Statutes are to the 2021

- 22 version unless otherwise noted.

2 The State also charged Braun with OWI causing injury as a second or subsequent offense and operating with a prohibited alcohol concentration causing injury as a second or subsequent offense. T hose charges are not involved in this appeal.No. 2023AP862

- CR

3 about his right to counsel took place at the hearing, contrary to the requirements of State v. Klessig , 211 Wis. 2d 194, 206, 564 N .W.2d 716 (1997)

. Braun also
averred that he had been generally unaware of his right to counsel during his hearing

. ¶ 3 Due to the passage of time since Braun’s second conviction, no transcript of the plea hearing was available . Thus, Braun’s motion rested on his own recollection of the hearing and a screenshot of a CCAP record related to the plea hearing. But when testifying at the motion hearing, Braun struggled to
establish a clear re collection of events. While Braun had averred in his affidavit that no colloquy about his right to counsel took place, he acknowledged on the stand that he did not recall whether or not he was asked about waiving the right to counsel, that it was possible that such a colloquy took place, and that he mig ht have simply forgotten it happened. Braun acknowledged that he “[p]robably” received a copy of the criminal complaint in that case. He testified further that he was “sure” the circuit court had explained the minimum and maximum penalties,
but could not recall what they were. Braun also testified that he had been represented in connection with his first OWI conviction and that from that experience he knew he had a right to an attorney at the second plea hearing.

¶ 4 The only other evid ence of what happened at the 2002 plea hearing consisted of a screenshot of a CCAP record of the hearing, which displayed court notes stating in part: “Def given complaint, advised of charges, penalties and rights,” and “Def. waives counsel.” The State p roduced a copy of the criminal complaint, but of course its contents did not shed light on whether a plea colloquy
occurred.No. 2023AP862

- CR

4 ¶ 5 The circuit court denied Braun’s motion. The court explained that
under State v. Clark , 2022 WI 21, ¶18, 401 Wis. 2d 344, 972 N.W.2d 533 , the absence of the plea hearing transcript meant that Braun retained the burden to establish, by clear and convincing evidence, that no knowing, voluntary, or intelligent waiver of his right to counsel took place. The court r easoned that Braun failed to meet this burden because he “was not able to say with any specificity that

— what the [court at the plea hearing] said or didn’t say. He just, frankly, wasn’t sure.” The court observed that Braun was “guessing at times or,
kind of, filling in the information” and that “he does not have a very good memory
of what went on ....” Because Braun’s testimony “was vague, was unclear, and was not specific enough as to what colloquy was done or not done,” the court
concluded that Braun had failed to produce clear and convincing evidence and denied his motion. Braun subsequently pled guilty to OWI and was sentenced as a
four

- time offender under W IS

. S TAT

. § 346.65(2)(g)1

. ¶ 6 “We review de novo ‘[w]hether a defendant knowi ngly, intelligently, and voluntarily waived his Sixth Amendment right to counsel.’”
State v. Gracia , 2013 WI 15, ¶11, 345 Wis. 2d 4 88, 826 N.W.2d 87 ( alteration in original; quoting State v. Ernst , 2005 WI 107, ¶1 0, 283 Wis. 2d 300, 699 N.W.2d 92). In doing so, “we apply constitutional principles to the facts of the case.”
Gracia , 345 Wis. 2d 488, ¶11

. This court will uphold the circuit court’s findings of fact unless they are “against the great weight and clear preponderance of the evidence.” P

helps v. Physicians Ins. Co. of Wis. , 2009 WI 74, ¶ 39, 319 Wis. 2d 1, 768 N.W.2d 615 (citation omitted).

¶ 7 A d efendant may collaterally attack prior OWI convictions where “the defendant was not represented and did not knowing ly , intellige nt ly , and
voluntar il y waive the right to counsel. ” Clark , 401 Wis. 2d 344 , ¶10

. To helpNo. 2023AP862

- CR

5 secure a valid waiver, circuit courts must conduct a colloquy that ensures the
defendant : (1) deliberately chooses to proceed without counsel ; (2) is “ aware of
the difficulties and disadvantages of self

- representation ” ; (3) is “ aware of the
seriousness of the charge or charges against him ” ; and (4) is “ aware of the general range of [ potential ] penalties. ” Klessig , 211 Wis. 2d at 206

. The absence of a Klessig colloq uy does not automatically invalidate a prior conviction but may

“ serve as the basis for a collateral attack. ” Clark , 401 Wis. 2d 344, ¶17.

¶ 8 A defendant wishing to collaterally attack a prior conviction has the
bur den of proof and “ ‘ must prove manifest injustice by clear and convincing
evidence. ’ ” Id. , ¶13 ( quoting State v. Negrete , 201 2 WI 92, ¶29, 343 Wis. 2d 1, 819 N.W.2d 749). I f a defendant can point to a defective colloquy in the plea hearing transcript, the burden shifts to the State to prove that the defendant made a knowing, voluntary, and intelligent waiver of their right to counsel. Clark , 401
Wis. 2d 344, ¶ 1 4

. But if the transcript is missing or destroyed , this

“ burden

- shifting procedure does not apply ” and the burden of p roof remains on the
defendant. Id. , ¶20.

¶ 9 On appeal, Braun acknowledges that Clark assigns him the burden
to show a constitutional violation. He argues that “the record, or lack thereof, in tandem with his affidavit and his testimony f rom the motion hearing, satisfy his
burden

.... ” But w hat Braun fails to acknowledge is that Clark assigns him the
burden to establish the absence of a valid waiver through clear and convincing
evidence

. Braun’s argument fails because the evidence he proffers cannot provide the clarity and specificity that Clark requires. When testifying, Braun could not recall in sufficient detail what was said to him at his plea hearing. In his brief, Braun acknowledge s that he had no clear memory of his plea hearing’s events. The CCAP record is of no help either: it summarizes the plea hearing’s events butNo. 2023AP862

- CR

6 does not state whether a colloquy took place . And finally, the criminal complaint in Braun’s second OWI case co ntains no information about the plea hearing. Because neither the record nor Braun’s testimony can show with sufficient clarity or specificity what was said at the plea hearing, Braun has not proved that his
second OWI conviction was obtained in violation of his right to counse l.

By the Court.

— Judgment affirmed.
This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5.