on review of unpublished court of appeals decision; for Gracia: Tracey A. Wood; case activity
Warrantless Entry – Community Caretaker / OWI Enhancer – Collateral Attack
Issues (Composed by On Point):
Whether the community caretaker doctrine supported entry into Gracia’s bedroom after the police linked him to a serious traffic accident.
Whether Gracia’s waiver of counsel in a prior OWI conviction used as a penalty enhancer was valid, notwithstanding absence of full compliance with Wis JI—Criminal SM-30.
Note: petitions for review aren’t available on-line, so this post assumes that Gracia has renewed in the supreme court both issues, as raised in the court of appeals. (If you’re interested in tracking either of these putative issues, you may want to check the briefs after filing in the supreme court, accessible at the case activity link above.)
As to the first issue, it is assumed that the argument will turn on State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242, 793 N.W.2d 505 (distinguished by court of appeals on basis that there, police never evinced concern for occupant, while here they did); and State v. Pinkard, 2010 WI 81, 327 Wis. 2d 346, 785 N.W.2d 592 (deemed more or less controlling by court of appeals for the similar reason that there, police entry was animated by concern for occupant’s well-being).
As to the second issue: Gracia’s argument, at least as raised in the court of appeals, is that the court in the prior proceeding didn’t warn him of the dangers and disadvantages of self-representation. (“In the case at bar, once the trial judge in 1998 determined Gracia had not even consulted with an attorney, there was no colloquy relating to the fact that an attorney may find defenses to the charge, may discover a way to mitigate the case, or may ease the sentencing ramifications. … At a bare minimum, when a court hears a defendant say he did not even try to consult with an attorney because of a belief there is nothing attorneys can do in cases like his, the court should point out that attorneys do sometimes help in these cases; and the defendant should be given another chance to actually contact an attorney.”) Agreeing that “(t)his is one part of the Wis JI—Criminal SM-30 that the 1998 court did not convey to him,” the court of appeals nonetheless held that Gracia needed only “a general understanding of the difficulties and disadvantages of proceeding pro se”; and that the record supported an inference of such awareness.
