Defendant, state agree that judge erred in denying hearing

Grogan

By Gretchen Schuldt

The Court of Appeals this week reversed a judge's decision in a case in which the state and the defense, in a relatively rare occurrence, agreed that the judge messed up.

Winnebago Circuit Judge Daniel J. Bissett denied Peter John Long's motion to reopen a case after Long argued that his lawyer told him that the default judgment he accepted for refusing to take sobriety tests would result in a three-year suspension of his driver's license. Instead, it resulted in a lifetime license revocation.

"The state believes Long is entitled to an evidentiary hearing on his motion because he pled sufficient facts which, if true, entitle him to relief," District II Court of Appeals Judge Shelley A. Grogan wrote in her decision. "This court agrees and reverses and remands for an evidentiary hearing."

Long was arrested for Operating While Intoxicated – 10th offense after police saw his motorcycle on a curb and found Long sleeping in a ditch about 300 yards away. Long refused to perform field sobriety tests or take a chemical test, according to the decision.
 
The OWI case against Long was dismissed after a preliminary hearing because a court commissioner found that the state did not provide sufficient evidence to establish probable cause, Grogan wrote. The case against him for refusing the tests, however, went on.

​"According to Long’s motion, his attorney advised him that he could simply ‘default’ (not show up) and that the only consequence would be a three-year revocation of his driver’s license," Grogan wrote. 

The Department of Transportation, however, notified Long after the default judgment was entered that his license would be revoked permanently. Long, representing himself, sought to reopen the judgment, writing that his acceptance of the default was “due to incorrect advice and mistake by paid counsel.”

Bissett refused the request, saying there was "no basis stated" to reopen the case. Long tried again, filing another motion with greater detail. Bissett again denied it, this time by stamping it "denied." Long filed for reconsideration; Bissett denied that request without explanation.

"Long alleged facts that, if true, warrant relief, and therefore the circuit court should have held a hearing on his motion," Grogan wrote.

The state, in its appellate brief, agreed. Lifetime driver's license revocation was a collateral consequence of a refusal finding, Winnebago County Assistant District Attorney Adam J. Levin wrote.

When a defendant is misadvised of even collateral consequences of a conviction, "Wisconsin courts have permitted defendants to withdraw pleas that were based on a misunderstanding of the consequences,"  he said.

Besides alleging that his lawyer provided incorrect information about the consequences of refusing the tests, Long argued that that the underlying OWI was dismissed for lack of probable cause, Grogan said.

"He believes that as a result, he has a meritorious defense to the refusal citation," she wrote. "​Based on these facts, Long is entitled to a hearing on his motion."

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