COURT OF APPEALS

DECISION

DATED AND FILED

January 18, 2023

Sheila T. Reiff

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 WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2021AP1613-CR Cir. Ct. No. 2018CF505

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

ERIC JON LANTZ,

 DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Chippewa County: 

JAMES M. ISAACSON, Judge. Affirmed. 

Before Stark, P.J., Hruz and Gill, 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 WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. Eric Lantz appeals from a judgment convicting 

him of operating a motor vehicle while intoxicated (OWI), as a seventh offense. 
No. 2021AP1613-CR

2

Lantz asserts that the circuit court erred by denying his motion to collaterally 

attack one of his prior OWI convictions. We conclude that the court properly 

denied Lantz’s motion because Lantz failed to make a prima facie showing that his 

right to counsel was violated in the prior case. We therefore affirm.

BACKGROUND

¶2 In 2018, the State charged Lantz with OWI and operating a motor 

vehicle with a prohibited alcohol concentration (PAC), each as a seventh offense. 

The complaint alleged that Lantz had six prior OWI convictions, including an 

Eau Claire County conviction entered on April 30, 1998. Before trial, Lantz 

moved to collaterally attack his 1998 OWI conviction so that it could not be used 

to enhance his sentence in the instant case. In the motion, Lantz asserted that he 

“did not know and understand the information that should have been provided per 

[State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997),] and thus did not 

appropriately waive his right to counsel” in the 1998 case.

¶3 In support of his collateral attack motion, Lantz filed an affidavit 

averring that he was self-represented when he pled guilty to the OWI charge in the 

1998 case. Lantz conceded that he made “a deliberate choice to proceed without 

counsel” in that case. He averred, however, that he was “unaware of the 

difficulties and disadvantages of self-representation and of the seriousness of the 

charge or charges ... which [he] was facing and pled to but was aware of the 

general range of possible penalties.” He further averred that: (1) he did not know 

that an attorney could help him “in identifying the strong and weak legal points of 

[his] case and possibly find a defense or mitigating circumstance”; (2) he was 

unaware that an attorney could assist him in resolving his case via a settlement 

with the prosecutor; and (3) he was unaware that an attorney could assist him in 
No. 2021AP1613-CR

3

“navigating the court system” and “dealing with issues with the Department of 

Motor Vehicles relating to [his] driver’s license.”

¶4 Lantz also averred that at the time of his arrest in the 1998 case, he 

was placed on a probation hold in a previous case and understood, based on 

conversations with his probation agent, that the Department of Corrections would 

not seek to revoke his probation in the prior case if he resolved the 1998 OWI 

case. Lantz further averred:

[M]y recollection is that I was offered a time served 

sentence to resolve my case and accepted the offer without 

discussing the case with an attorney. When I accepted the 

offer from the prosecutor, I was unaware and did not 

understand that the judge could sentence me to something 

other than the offer made by the prosecutor.

¶5 Lantz’s attorney also submitted an affidavit in support of Lantz’s 

collateral attack motion. Counsel averred that he had contacted the Eau Claire 

County Clerk of Court regarding the citation issued to Lantz in 1998, and he was 

informed “that the clerk could not locate any information relating to the 

citation ... nor could the clerk locate any information relating to ... Lantz from

that year.” Counsel was also informed “that any records relating to the 

citation ... had likely been destroyed pursuant to the Eau Claire County Clerk of 

Court’s file retention policy.”

¶6 The circuit court held a hearing on Lantz’s collateral attack motion

in May 2019. During the hearing, defense counsel asserted that Lantz had made a 

“prima facie case” that his right to counsel was violated in the 1998 case. Counsel 

therefore stated that Lantz would rest on the contents of his affidavit, while 

reserving the right to rebut any evidence the State presented. In response, the 

State did not present any evidence showing that Lantz was represented by counsel 
No. 2021AP1613-CR

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in the 1998 case or that he knowingly, intelligently, and voluntarily waived his 

right to counsel in that case. Instead, the prosecutor noted that CCAP1showed

that Lantz had been charged with “numerous felonies and misdemeanors” dating 

back to 1989. Based on “the results that Mr. Lantz has gotten,” the prosecutor 

surmised that attorneys “probably were involved” in some of those prior cases.

¶7 The circuit court then interjected, noting that the version of CCAP 

available to the court contained more information than the version available to the 

parties. Specifically, the court stated that its version of CCAP showed that “on 

April 30, 1998, Eau Claire County Case 1998 CM 552, Mr. Lantz appeared with 

Attorney Mary Liedtke and pled to a second offense OWI.” The court continued, 

“CCAP says Mary Liedtke was his attorney of record, and in that case there was a 

plea questionnaire and waiver of rights form filed on that same date with Miss 

Liedtke in the courtroom.” The court then showed the parties a “screen shot” of 

this information from the court’s version of CCAP. That screen shot was not 

marked as an exhibit, however, and it does not appear in the appellate record.

¶8 In response, Lantz’s attorney conceded that the circuit court’s CCAP 

report “does reflect Miss Liedtke entering an appearance on March 27th.” 

Counsel maintained, however, that Lantz “does not recall having an attorney” in 

the 1998 case. Based on the information from the CCAP report, the court denied 

Lantz’s motion to collaterally attack his 1998 conviction.

 

1

 “CCAP is an acronym for Wisconsin’s Consolidated Court Automation Programs. The 

online website reflects information entered by court staff.” Kirk v. Credit Acceptance Corp., 

2013 WI App 32, ¶5 n.1, 346 Wis. 2d 635, 829 N.W.2d 522.
No. 2021AP1613-CR

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¶9 Lantz subsequently moved for reconsideration. When reciting the 

procedural history of the case, Lantz asserted that the circuit court had “made a 

finding” during the May 2019 hearing that Lantz made a prima facie showing that 

his right to counsel was violated in the 1998 case. Lantz then noted that the State 

did not present any evidence during the hearing to rebut his prima facie case, and 

the only evidence disputing his prima facie case came from the court’s 

“independent investigation.” Lantz argued that the court’s independent 

investigation was improper under SCR 60.04 and State v. Vanmanivong, 2003 WI 

41, 261 Wis. 2d 202, 661 N.W.2d 76. Lantz further contended: “Without the 

improperly obtained independent evidence, the Court can reach only one 

conclusion on the record, that [Lantz’s collateral attack] motion should be 

granted.”

¶10 The circuit court held a hearing on Lantz’s motion for 

reconsideration, during which the court indicated that it was hesitant to take 

judicial notice of the CCAP report discussed during the prior hearing. The court 

then directed the prosecutor “to do a thorough check of whatever CCAP you have 

available to you” to determine whether there were records showing that Lantz was 

represented by an attorney in the 1998 case.

¶11 At the next hearing, a different prosecutor appeared on behalf of the 

State and conceded that he had no information regarding the assigned prosecutor’s 

investigation. The circuit court explained, however, that it had consulted with 

colleagues, and “[t]he majority of the reports that I get and the advice I am taking 

is that once I’m given the case number and I look at the case like any other case 

cited as precedent, I am not investigating independent facts.” In other words, the 

court concluded that it had not erred by considering the CCAP report. The court 

therefore denied Lantz’s reconsideration motion.
No. 2021AP1613-CR

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¶12 The case proceeded to a bench trial, and the circuit court found 

Lantz guilty of the OWI charge, as a seventh offense. The PAC charge was 

dismissed and read in for purposes of sentencing. The court ultimately sentenced 

Lantz to three years of initial confinement followed by four years of extended 

supervision, but it stayed his sentence pending appeal. Lantz now appeals, 

arguing that the court erred by denying his motion to collaterally attack his 1998 

OWI conviction.

DISCUSSION

¶13 “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” in the previous case. State v. Hammill, 2006 

WI App 128, ¶6, 293 Wis. 2d 654, 718 N.W.2d 747. To be constitutionally valid, 

a defendant’s waiver of the right to counsel must be entered knowingly, 

intelligently, and voluntarily. Klessig, 211 Wis. 2d at 203-04. Before permitting a 

defendant to proceed without counsel, a circuit court must

conduct a colloquy designed to ensure that the 

defendant: (1) made a deliberate choice to proceed without 

counsel, (2) was aware of the difficulties and disadvantages 

of self-representation, (3) was aware of the seriousness of 

the charge or charges against him, and (4) was aware of the 

general range of penalties that could have been imposed on 

him.

Id. at 206.

¶14 In State v. Ernst, 2005 WI 107, ¶25, 283 Wis. 2d 300, 699 N.W.2d 

92, our supreme court established a burden-shifting procedure for evaluating 

collateral attack motions. Initially, the burden rests with the defendant to make a 

prima facie showing that his or her constitutional right to counsel was violated in a 
No. 2021AP1613-CR

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prior case. Id. To satisfy that burden, the defendant must “point to facts that 

demonstrate that he or she ‘did not know or understand the information which 

should have been provided’ in the previous proceeding and, thus, did not 

knowingly, intelligently, and voluntarily waive his or her right to counsel.” Id.

(citation omitted). “Any claim of a violation [of the right to counsel] on a 

collateral attack that does not detail such facts will fail.” Id. If the defendant 

makes a prima facie showing that his or her right to counsel was violated in a prior 

case, the burden shifts to the State to prove by clear and convincing evidence that 

the defendant’s waiver of counsel in the prior case was knowing, intelligent, and 

voluntary. Id., ¶27.

¶15 Our supreme court recently clarified, however, that the 

burden-shifting procedure established in Ernst does not apply in cases, like this 

one, where “the relevant hearing transcript from the prior conviction is 

unavailable.” State v. Clark, 2022 WI 21, ¶2, 401 Wis. 2d 344, 972 N.W.2d 533. 

Instead, in a case where the relevant hearing transcript is unavailable, “the 

defendant retains the burden to demonstrate the right to counsel was violated.” Id.

¶16 Lantz filed his brief-in-chief in this appeal, and the State filed its 

response brief, before the supreme court issued its decision in Clark. In his 

brief-in-chief, Lantz asserted that the circuit court found that he made a prima 

facie showing that his right to counsel was violated in the 1998 case. Lantz then 

argued that the State “effectively conceded” during the May 2019 hearing “that it 

could not present any evidence refuting Lantz’s assertion that he did not have 

counsel and did not validly waive his right to counsel in the 1998 Eau Claire 

County case.” Given that concession, Lantz asserted that “[t]he only possible 

evidentiary basis remaining was the court’s own investigation.” Lantz then argued

that the court’s independent investigation was improper; that the CCAP report was 
No. 2021AP1613-CR

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inadmissible; and that, regardless, the report was never admitted into evidence. 

Lantz therefore contended that the State failed to meet its burden of proof, and, as 

a result, the court erred by denying his collateral attack motion.

¶17 In its response brief, the State argued that contrary to Lantz’s 

assertion, the circuit court never found that Lantz had made a prima facie showing 

that his right to counsel was violated in the 1998 case. The State further argued

that Lantz’s affidavit was insufficient to make the required prima facie showing. 

In the alternative, the State argued that even if Lantz made a prima facie showing 

that his right to counsel was violated in the 1998 case, the CCAP report showed

that Lantz was, in fact, represented by counsel in that case.

¶18 Lantz filed his reply brief after our supreme court issued its decision 

in Clark. In his reply brief, Lantz did not dispute the State’s assertion that the 

circuit court never found that he made a prima facie showing that his right to 

counsel was violated in the 1998 case. Lantz’s reply brief also failed to address 

the State’s argument that Lantz did not make the required prima facie showing. 

Instead, Lantz argued in his reply brief that this court should remand for an

evidentiary hearing to give him “an opportunity to meet the new and higher 

burden established by [Clark].”

¶19 We agree with the State that Lantz failed to make a prima facie 

showing that his right to counsel was violated in the 1998 case.2 As an initial 

 

2

 As the State correctly notes, the circuit court never found that Lantz made the required 

prima facie showing. In support of his assertion that the court made such a finding, Lantz merely 

notes that the court held a hearing on his collateral attack motion. However, a circuit court has 

discretion to hold an evidentiary hearing on a defendant’s motion, even when the motion is 

facially insufficient. See State v. Velez, 224 Wis. 2d 1, 17, 589 N.W.2d 9 (1999). Thus, the mere 

fact that the court held a hearing on Lantz’s collateral attack motion does not show that the court 

found that Lantz had made a prima facie case.

(continued)
No. 2021AP1613-CR

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matter, we note that the State expressly argued in its response brief that Lantz 

failed to make a prima facie showing that his right to counsel was violated in the 

1998 case, and Lantz did not respond to that argument in his reply brief. We 

therefore deem Lantz to have conceded the State’s argument that he did not make 

the required prima facie showing. See Charolais Breeding Ranches, Ltd. v. FPC 

Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted

arguments may be deemed conceded).

¶20 Regardless, even absent Lantz’s concession, we conclude the record 

shows that Lantz failed to make a prima facie showing that his right to counsel 

was violated in the 1998 case. As noted above, to make a prima facie showing 

that his or her right to counsel was violated in a prior proceeding, a defendant must 

“point to facts that demonstrate that he or she ‘did not know or understand the 

information which should have been provided’ in the previous proceeding and, 

thus, did not knowingly, intelligently, and voluntarily waive his or her right to 

counsel.” Ernst, 283 Wis. 2d 300, ¶25 (citation omitted). Here, although Lantz 

asserted in his affidavit that he was “unaware of the difficulties and disadvantages 

of self-representation and of the seriousness of the charge or charges ... which 

[he] was facing,” he did not allege any facts demonstrating that unawareness or 

explaining what caused him to be unaware of the relevant information. 

 

In any event, whether a defendant has made a prima facie showing of a violation of the 

right to counsel is a question of law that we review independently. State v. Ernst, 2005 WI 107, 

¶10, 283 Wis. 2d 300, 699 N.W.2d 92. As such, we may independently determine whether Lantz 

made the required prima facie showing. Furthermore, it is well established that we may affirm a 

circuit court’s decision on different grounds. See State v. Smiter, 2011 WI App 15, ¶9, 331 

Wis. 2d 431, 793 N.W.2d 920 (2010). Here, regardless of whether the circuit court found that 

Lantz made a prima facie showing that his right to counsel was violated in the 1998 case, we 

independently conclude that Lantz failed to make the required prima facie showing.
No. 2021AP1613-CR

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¶21 Notably, Lantz did not aver that the circuit court in the 1998 case 

failed to conduct a Klessig colloquy—or conducted a defective Klessig colloquy—

before allowing him to represent himself. Absent any claim of a defective Klessig 

colloquy, and absent a transcript of the relevant hearing, we cannot simply assume

that the court in the 1998 case failed to conduct a proper colloquy. See Parke v. 

Raley, 506 U.S. 20, 30 (1992) (“On collateral review, we think it defies logic to 

presume from the mere unavailability of a transcript ... that the defendant was not 

advised of his [or her] rights.”).

¶22 Because Lantz has not alleged that the circuit court failed to conduct 

an adequate Klessig colloquy during the 1998 case, we assume that the court 

conducted a proper colloquy, during which it adequately advised Lantz of the 

seriousness of the charge and the difficulties and disadvantages of 

self-representation. Although Lantz averred in his affidavit that he did not 

understand that information, he has not alleged specific facts demonstrating any

reason for his alleged lack of understanding. He has not, for instance, pointed to 

any extraneous limitation that would have prevented him from understanding the 

information that the court provided, such as a learning disability, mental illness, or 

inability to understand English. See, e.g., State v. Bohlinger, 2013 WI App 39, 

¶20, 346 Wis. 2d 549, 828 N.W.2d 900, abrogated on other grounds by Clark, 

401 Wis. 2d 344 (concluding a defendant made a prima facie showing that his 

right to counsel was violated by submitting evidence that he had a cognitive 

disability that prevented him from understanding the information provided to him 

during a Klessig colloquy).

¶23 On this record, we cannot conclude that Lantz made a prima facie 

showing that his right to counsel was violated in the 1998 case. Lantz’s affidavit

merely asserted, in a general fashion, that Lantz did not understand the seriousness 
No. 2021AP1613-CR

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of the charge in the 1998 case or the difficulties and disadvantages of 

self-representation. Lantz did not, however, allege any specific facts to support 

that claim or explain why he did not understand the relevant information. “Any 

claim of a violation [of the right to counsel] on a collateral attack that does not 

detail such facts will fail.” Ernst, 283 Wis. 2d 300, ¶25. Because Lantz failed to 

make a prima facie showing that his right to counsel was violated in the 1998 case, 

the circuit court properly denied his motion to collaterally attack the 1998 

conviction.3

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.

 

3

 In light of our conclusion that Lantz failed to make the required prima facie showing, 

we need not address the parties’ arguments regarding whether the circuit court properly 

considered the CCAP report. See Patrick Fur Farm, Inc. v. United Vaccines, Inc., 2005 WI 

App 190, ¶8 n.1, 286 Wis. 2d 774, 703 N.W.2d 707 (court of appeals decides cases on the 

narrowest possible grounds). Our conclusion that Lantz failed to make a prima facie showing 

also obviates the need to remand this matter for an evidentiary hearing in light of the supreme 

court’s decision in State v. Clark, 2022 WI 21, 401 Wis. 2d 344, 972 N.W.2d 533.