State v. Cassius A. Foster

2014 WI 131

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP1673-CRNM
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Cassius A. Foster,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION BY THE COURT OF APPEALS
(No cite)
(Ct. App. 2012 – Unpublished)

OPINION FILED: December 26, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 9, 2014

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Monroe
JUDGE: Todd L. Ziegler

JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
filed.)
NOT PARTICIPATING:

ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by John R. Breffeilh, assistant state public defender, and oral
argument by John R. Breffeilh.

For the plaintiff-respondent, the cause was argued by
Thomas J. Balistreri, assistant attorney general, with whom on
the brief was J.B. Van Hollen, attorney general.
 2014 WI 131
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP1673-CRNM
(L.C. No. 2009CF194)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,
FILED
v.
DEC 26, 2014
Cassius A. Foster,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 N. PATRICK CROOKS, J. This is a review of an
unpublished opinion and order of the court of appeals1 accepting

post-conviction counsel's no-merit report and affirming the

circuit court's conviction of the defendant, Cassius A. Foster

(Foster).

¶2 Following a jury trial, Foster was convicted of

operating a vehicle while under the influence of an intoxicant,

1
State v. Foster, No. 2011AP1673-CRNM, unpublished order
(Wis. Ct. App. Dec. 10, 2012).
 No. 2011AP1673-CRNM

sixth offense, in violation of Wis. Stat. § 346.63(1)(a).2 The

circuit court, Monroe County, the Honorable Todd L. Ziegler,

presiding, entered a judgment of conviction on September 23,

2010. The circuit court withheld sentence and placed Foster on

probation for three years, with one year of jail time as a

condition of probation.

¶3 Thereafter, Foster filed a post-conviction motion

seeking resentencing on the basis that his trial counsel was

ineffective for failing to collaterally attack three prior

drunk-driving convictions which enhanced his sentence. The

circuit court ultimately denied the motion. The circuit court

reasoned that Foster was not prejudiced by his trial counsel's

failure to collaterally attack the three prior convictions

because that challenge was unlikely to succeed.

¶4 Foster's post-conviction counsel then filed a no-merit

report with the court of appeals. The court of appeals accepted

the no-merit report and affirmed Foster's conviction.

¶5 Foster, proceeding pro se, filed a petition for review
with this court. His petition focused solely on the issue of

whether he possessed a meritorious claim for ineffective

assistance of counsel.

¶6 While Foster's petition was pending before the court,

the United States Supreme Court decided Missouri v. McNeely, 569

U.S. , 133 S. Ct. 1552 (2013). McNeely abrogated our decision

2
All references to the Wisconsin Statutes are to the 2009-
10 version unless otherwise indicated.

2
 No. 2011AP1673-CRNM

in State v. Bohling, 173 Wis. 2d 529, 547-48, 494 N.W.2d 399

(1993), to the extent that we held the natural dissipation of

alcohol in a person's bloodstream constitutes a per se exigency

so as to justify a warrantless nonconsensual blood draw under

certain circumstances. Because it appeared to us that the

police relied on Bohling to effectuate the search and seizure of

Foster's blood, we granted review.

¶7 Accordingly, this case presents two issues for our

determination: (1) whether the warrantless nonconsensual blood

draw performed on Foster is constitutional in light of the

United States Supreme Court's decision in McNeely, and if not,

whether suppression of the evidence derived from Foster's blood

is the appropriate remedy for that constitutional violation, or

alternatively, whether the good faith exception to the

exclusionary rule applies; and (2) whether the court of appeals

properly accepted post-conviction counsel's no-merit report.

¶8 We hold that McNeely applies retroactively to the

facts of this case and that the warrantless nonconsensual blood
draw performed on Foster violated his right to be free from

unreasonable searches and seizures. However, we decline to

apply the exclusionary rule to suppress the evidence derived

from Foster's blood. Because the police acted in objectively

reasonable reliance upon the clear and settled precedent of

Bohling in effectuating the search and seizure of Foster's

blood, the good faith exception to the exclusionary rule

precludes suppression of the evidence.

3
 No. 2011AP1673-CRNM

¶9 We further hold that the court of appeals properly

accepted post-conviction counsel's no-merit report. The court

of appeals reasonably exercised its discretion in finding no

arguable merit to Foster’s ineffective assistance of counsel

claim on the basis that Foster failed to demonstrate the

requisite prejudice to support that claim.

¶10 Therefore, we affirm the decision of the court of

appeals and uphold Foster's conviction.

I

¶11 On March 6, 2009, at approximately 11:55 p.m., Officer

Jarrod Furlano of the Tomah Police Department stopped Foster's

vehicle for traveling fifty miles per hour in a thirty mile per

hour speed zone. When approached by Officer Furlano, Foster

struggled to lower his window and to produce his driver's

license. Observing that Foster had glassy, bloodshot eyes and

slurred speech, Officer Furlano asked Foster whether he had been

consuming alcohol. Foster responded that he had consumed a

couple beers.
¶12 As a result, Officer Furlano had Foster exit his

vehicle for standardized field sobriety testing. He asked

Foster to perform the "horizontal gaze nystagmus test," the

"walk and turn test," and the "one leg stand test." According

to Officer Furlano, Foster failed all three tests.

¶13 Officer Furlano then placed Foster under arrest and

transported him to Tomah Memorial Hospital for a blood draw.

Foster refused to consent to the draw. Acting without a
warrant, Officer Furlano instructed a registered nurse to draw
4
 No. 2011AP1673-CRNM

Foster's blood. The blood draw occurred at approximately 12:50

a.m. The results showed that Foster's blood-alcohol level was

.112 at the time of the draw.

¶14 On March 20, 2009, Foster was charged with operating a

vehicle while under the influence of an intoxicant (OWI),

seventh offense.3 The State later amended the criminal complaint

on May 28, 2009, to charge Foster with his sixth, not seventh,

OWI.

¶15 On May 27, 2010, a jury convicted Foster of OWI. The

State then introduced certified driving records from Wisconsin,

Oklahoma, and Texas to establish that Foster had five prior

drunk-driving convictions for purposes of sentencing under Wis.

Stat. § 346.65(2)(am)5.4

3
Foster was also charged with operating a motor vehicle
with a prohibited alcohol concentration in violation of Wis.
Stat. § 346.63(1)(b). The circuit court dismissed that charge
at sentencing pursuant to Wis. Stat. § 346.63(1)(c).
4
Wis. Stat. § 346.65(2)(am)5 provides:

Any person violating s. 346.63(1):

(5) Except as provided in pars. (f) and (g), is guilty
of a class H felony and shall be fined not less than
$600 and imprisoned for not less than 6 months if the
number of convictions under ss. 940.09(1) and 940.25
in the person's lifetime, plus the total number of
suspensions, revocations and other convictions counted
under s. 343.307(1), equals 5 or 6, except that
suspensions, revocations or convictions arising out of
the same incident or occurrence shall be counted as
one.

(continued)
5
 No. 2011AP1673-CRNM

¶16 On September 23, 2010, the circuit court entered a

judgment of conviction reflecting Foster's sixth OWI offense.

The circuit court withheld sentence and placed Foster on

probation for three years, with one year of jail time as a

condition of probation.

¶17 Foster then filed a post-conviction motion seeking

resentencing on the basis that his trial counsel was ineffective

for failing to collaterally attack his three prior drunk-driving

convictions from Oklahoma. Underlying Foster's ineffective

assistance claim was his contention that those convictions were

obtained in violation of his constitutional right to counsel;

thus, the prior convictions should not have enhanced his

sentence in this case.

¶18 In support of his motion, Foster submitted an

affidavit alleging the following facts for each prior

conviction: (1) he entered his guilty plea without the advice of

counsel; (2) he did not affirmatively waive his right to

counsel; and (3) he was not advised of his right to counsel.
Foster further averred that he would have asked for a lawyer in

each case because: (1) he did not know how serious the charge

was; (2) he did not know how a conviction would affect him in

the future; (3) he did not know that an attorney could assist

Of Foster's five prior drunk-driving convictions, three were
from Oklahoma and two were from Texas. The Oklahoma convictions
took place in 1991, 1993, and 1994. The Texas convictions
occurred in 1997 and 1998.

6
 No. 2011AP1673-CRNM

him in contesting the charges against him; and (4) he did not

know the difficulties and disadvantages of representing himself.

¶19 On June 15, 2011, the circuit court held a hearing

pursuant to State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905

(Ct. App. 1979),5 wherein Foster's trial counsel testified on the

matter of deficient performance. Trial counsel testified that

she had two reasons for not collaterally attacking Foster's

prior convictions. First, she believed that a collateral attack

was a sentencing issue, not a trial issue, and that Foster could

raise it at sentencing. Second, she withheld a collateral

attack as a matter of trial strategy: Foster's objective was to

negotiate a plea deal, and the State had a policy of withdrawing

a pretrial offer in the face of an evidentiary motion.

¶20 At the Machner hearing, the circuit court also took

testimony and received evidence on the matter of prejudice. In

order to evaluate whether Foster was prejudiced by his trial

counsel's failure to collaterally attack his prior convictions,

the circuit court proceeded under the burden-shifting collateral
attack procedure that we set forth in State v. Ernst, 2005 WI

107, ¶37, 283 Wis. 2d 300, 699 N.W.2d 92. Pursuant to Ernst,

the circuit court determined that Foster's affidavit made a

prima facie showing that his waiver of counsel in the Oklahoma

cases was not a knowing, intelligent, and voluntary one. The

5
In Machner, the court of appeals held that "it is a
prerequisite to a claim of ineffective representation on appeal
to preserve the testimony of trial counsel." State v. Machner,
92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).

7
 No. 2011AP1673-CRNM

circuit court then shifted the burden to the State to prove

otherwise by clear and convincing evidence.

¶21 The State sought to meet its burden by questioning

Foster as to the averments in his affidavit.6 The State also

introduced two certified copies of the "Notice of Rights" form

that Foster signed when he entered his guilty plea to each

Oklahoma offense.7 The forms provided, in relevant part:

I, (being of legal age) the defendant in this matter,
for which if convicted I may be sentenced to jail, was
advised in open court, of my right to be represented
by counsel of my choice, by the Municipal Public
Defender if I so request and qualify as an indigent,
or waive my right to counsel.

. . .

I FURTHER UNDERSTAND . . . THAT a record of any
conviction in traffic cases will be sent to the
Department of Public Safety of Oklahoma to become part
of my permanent driving record.

6
We note that there is no transcript of the proceedings
that took place in the Oklahoma cases.
7
Foster's post-conviction motion alleged that his trial
counsel was ineffective for failing to collaterally attack three
prior convictions from Oklahoma. However, he later conceded
that one of those convictions, an implied consent conviction
from 1991, was not subject to collateral attack because it was a
civil violation that did not implicate his constitutional right
to counsel. See State v. Hahn, 2000 WI 118, ¶28, 238 Wis. 2d
889, 618 N.W.2d 528 (holding that a defendant may not
collaterally attack a prior conviction in an enhanced sentence
proceeding predicated on the prior conviction except where the
challenge is based on a denial of his or her right to counsel).
Therefore, we focus on the Oklahoma convictions from 1993 and
1994, as did the circuit court and the court of appeals.

8
 No. 2011AP1673-CRNM

¶22 Upon questioning, Foster admitted that he checked the

box marked "I waive my right to counsel" on each form. The

transcript from the Machner hearing indicates that the following

exchange ensued:

THE STATE: When you just read to the judge that
document informs you that you had a right to counsel
and that you could have an attorney appointed to you
if you were indigent, that is in direct contravention
with what you testified earlier, correct?

THE DEFENDANT: Right.

THE STATE: And why did you testify earlier that you
have never been advised that an attorney could be
appointed for you?

THE DEFENDANT: That was my memory.

THE STATE: So you don't really remember what happened
then in 1993 and 1994?

THE DEFENDANT: No.
¶23 Based on the State's evidence, Foster's post-

conviction counsel conceded that the State had met its burden of

proof that Foster knowingly, intelligently, and voluntarily

waived his right to counsel in the Oklahoma cases. Post-
conviction counsel then withdrew Foster's motion.

¶24 In any event, the circuit court denied Foster's

motion. The circuit court reasoned that Foster was not

prejudiced by his trial counsel's failure to collaterally attack

the prior convictions because that challenge was unlikely to

succeed. The circuit court explained that the State had offered

sufficient evidence to prove that Foster knowingly,

9
 No. 2011AP1673-CRNM

intelligently, and voluntarily waived his right to counsel and

that such evidence rendered Foster's testimony incredible.

¶25 On October 3, 2011, Foster's post-conviction counsel

filed a no-merit report with the court of appeals pursuant to

Wis. Stat. § (Rule) 809.32 (2011-12). Foster filed a response

to the no-merit report on October 12, 2011. He supplemented

that response on November 7, 2011.

¶26 As we explain in greater detail below, the court of

appeals accepted post-conviction counsel's no-merit report.

Foster then filed a petition for review with this court. In the

wake of the United States Supreme Court's decision in McNeely,

we granted review.

II

¶27 We are asked to decide whether the warrantless

nonconsensual blood draw performed on Foster is constitutional

in light of McNeely. "The application of constitutional

principles to a particular case is a question of constitutional

fact." State v. Dearborn, 2010 WI 84, ¶13, 327 Wis. 2d 252, 786
N.W.2d 97. We accept the circuit court's findings of historical

fact unless they are clearly erroneous. Id. We review the

application of constitutional principles to those historical

facts de novo. Id.

¶28 We are also asked to determine whether the court of

appeals properly accepted post-conviction counsel's no-merit

report. We do so under the erroneous exercise of discretion

standard. See State v. Sutton, 2012 WI 23, ¶¶45-48, 339 Wis. 2d
27, 810 N.W.2d 210. "This court has been reluctant to interfere
10
 No. 2011AP1673-CRNM

with the discretion of the court of appeals." Id., ¶45. "A

reviewing court will sustain a discretionary decision if it

finds that [] the lower court (1) examined the relevant facts,

(2) applied a proper standard of law, and (3) used a

demonstrative rational process in reaching a conclusion that a

reasonable judge could reach." State v. Smythe, 225 Wis. 2d

456, 463, 592 N.W.2d 628 (1999).

¶29 Stated differently, in reviewing a court of appeals'

decision to accept a no-merit report, we do not conduct our own

independent review of the record as required by the United

States Supreme Court in Anders v. California, 386 U.S. 738, 744-

45 (1967) (setting forth the specific procedure that must be

followed to protect a criminal defendant’s right to counsel on

appeal where appellate counsel believes that an appeal is

frivolous). The Anders procedure applies only on direct appeal.

Pennsylvania v. Finley, 481 U.S. 551, 554 (1987); Judicial

Council Note, 2001, Wis. Stat. § (Rule) 809.32 (2011-12).

III
¶30 We begin by addressing whether the warrantless

nonconsensual blood draw performed on Foster is constitutional

in light of McNeely, and if not, whether suppression of the

evidence derived from Foster's blood is the appropriate remedy

for that constitutional violation, or alternatively, whether the

good faith exception to the exclusionary rule applies. We

recently addressed a similar issue in State v. Kennedy, 2014 WI

132, __ Wis. 2d __, __ N.W.2d __, and we apply the same analysis
employed in Kennedy to this case. Therefore, we begin with a
11
 No. 2011AP1673-CRNM

discussion of Wisconsin law on searches and seizures prior to

McNeely. We next consider McNeely and its effect on the instant

matter, determining that the decision applies retroactively and

renders unconstitutional the warrantless nonconsensual draw of

Foster's blood. We then discuss the propriety of remedying that

constitutional violation. We conclude that the good faith

exception to the exclusionary rule precludes suppression of the

blood draw evidence because the police acted in objectively

reasonable reliance on the clear and settled precedent of

Bohling in effectuating the search and seizure of Foster's

blood.

A

¶31 "Both the Fourth Amendment to the United States

Constitution and Article I, Section 11 of the Wisconsin

Constitution protect against unreasonable searches and

seizures." State v. Eason, 2001 WI 98, ¶16, 245 Wis. 2d 206,

629 N.W.2d 625.8 "We have historically interpreted the Wisconsin

8
The Fourth Amendment to the United States Constitution
provides:

[t]he right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized.

Article I, Section 11 of the Wisconsin Constitution states:

[t]he right of the people to be secure in their
persons, houses, papers, and effects against
(continued)
12
 No. 2011AP1673-CRNM

Constitution's protections in this area identically to the

protections under the Fourth Amendment as defined by the United

States Supreme Court." Dearborn, 327 Wis. 2d 252, ¶14.

¶32 Consistent with the United States Supreme Court's

interpretation of the Fourth Amendment, we have adhered to the

basic principle that warrantless searches are per se

unreasonable unless they fall within a well-recognized exception

to the warrant requirement. State v. Mazur, 90 Wis. 2d 293,

301, 280 N.W.2d 194 (1979) (citing Coolidge v. New Hampshire,

403 U.S. 443, 454-55 (1971)). We continue to apply that

principle to the kind of search performed in this case, "which

involved a compelled physical intrusion beneath [Foster's] skin

and into his veins to obtain a sample of his blood for use as

evidence in a criminal investigation." McNeely, 133 S. Ct. at

1558.

¶33 Like the United States Supreme Court, we recognize an

exception to the warrant requirement for a search performed

incident to a lawful arrest. Leroux v. State, 58 Wis. 2d 671,
688, 207 N.W.2d 589 (1973) (citing Ker v. State of Cal., 374

U.S. 23, 41 (1963)). "A lawful arrest gives rise to heightened

concerns that may justify a warrantless search, including the

need to discover and preserve evidence." State v. Payano-Roman,

unreasonable searches and seizures shall not be
violated; and no warrant shall issue but upon probable
cause, supported by oath or affirmation, and
particularly describing the place to be searched and
the persons or things to be seized.

13
 No. 2011AP1673-CRNM

2006 WI 47, ¶31, 290 Wis. 2d 380, 714 N.W.2d 548. "Pursuant to

this rule, law enforcement officers have been permitted to seize

samples of an arrestee's hair, breath, and urine solely on the

basis of lawful arrest." Bohling, 173 Wis. 2d at 537.

¶34 However, "[b]lood constitutes a limited exception to

the foregoing rule." Id. In Schmerber v. California, 384 U.S.

757, 770-71 (1966), the United States Supreme Court held that a

warrantless nonconsensual blood draw performed incident to a

lawful arrest is constitutional only where three conditions are

met: (1) the police have a "clear indication"9 that evidence of

intoxication will be found in the blood; (2) exigent

circumstances exist; and (3) the method chosen to draw the blood

is a reasonable one that is performed in a reasonable manner.

¶35 Regarding the second prong of Schmerber's test, we

note that the exigent circumstances doctrine is an exception to

the warrant requirement that exists independent of the search

incident to arrest exception. State v. Hughes, 2000 WI 24, ¶17,

233 Wis. 2d 280, 607 N.W.2d 621 (citing Payton v. New York, 445
U.S. 573, 575, 583-88 (1980)). The exigent circumstances

doctrine requires an emergency situation which "overcome[s] the

individual's right to be free from governmental interference,"

Id., because, as is relevant here, the delay in obtaining a

9
"Clear indication" is the legal equivalent of "reasonable
suspicion." State v. Seibel, 163 Wis. 2d 164, 173, 471 N.W.2d
226 (1991).

14
 No. 2011AP1673-CRNM

warrant may result in the loss of evidence. Hughes, 233 Wis. 2d

280, ¶25.

¶36 The United States Supreme Court's mandate that the

exigent circumstances doctrine be satisfied in the context of a

blood draw incident to a lawful arrest is a strong indication

that the Fourth Amendment permits only "minor intrusions into an

individual's body under stringently limited conditions . . . ."

Schmerber, 384 U.S. at 772. The exigency sufficient to justify

the minor intrusion into Schmerber's body concerned the

destruction of evidence: "the percentage of alcohol in the blood

begins to diminish shortly after drinking stops, as the body

functions to eliminate it from the system." Id. at 770.

¶37 In the wake of Schmerber, jurisdictions split "on the

question whether the natural dissipation of alcohol in the

bloodstream establishes a per se exigency that suffices on its

own to justify an exception to the warrant requirement for

nonconsensual blood testing in drunk-driving investigations."

McNeely, 133 S. Ct. at 1558. Thus, when we answered that
question affirmatively in Bohling, 173 Wis. 2d at 539-40, we

were not alone. See, e.g., Gregg v. State, 374 So. 2d 1301,

1303-04 (Miss. 1979) (reasoning that the metabolism of alcohol

in the blood alone constitutes a sufficient exigency to justify

a warrantless search); State v. Baker, 502 A.2d 489, 493 (Me.

1985) (holding same); State v. Woolery, 116 Idaho 368, 370, 775

P.2d 1210 (1989), overruled on other grounds by State v. Wulff,

337 P.3d 575 (Idaho 2014), abrogated by McNeely, 133 S. Ct. 1552
(holding same).
15
 No. 2011AP1673-CRNM

¶38 As a result of our decision in Bohling, a warrantless

nonconsensual blood draw taken at the direction of a police

officer was constitutional in the following circumstances:

(1) the blood draw [was] taken to obtain evidence of
intoxication from a person lawfully arrested for a
drunk-driving related violation or crime, (2) there
[was] a clear indication that the blood draw [would]
produce evidence of intoxication, (3) the method used
to take the blood sample [was] a reasonable one and
performed in a reasonable manner, and (4) the arrestee
present[ed] no reasonable objection to the blood draw.
Bohling, 173 Wis. 2d at 534 (footnote omitted).10 Bohling

remained the law in Wisconsin for twenty years.

B

¶39 In McNeely, the United States Supreme Court resolved

the split among jurisdictions as to whether drunk-driving cases

present a per se exigency sufficient to justify a warrantless

nonconsensual search and seizure of a person's blood. The

United States Supreme Court rejected a categorical rule in favor

of a case-by-case, "totality of the circumstances" assessment of

10
We note that our four factor test in Bohling sets forth
the proper procedure for conducting a warrantless nonconsensual
blood draw in the context of a search incident to a lawful
arrest, consistent with Schmerber v. California, 384 U.S. 757
(1966). In the absence of a lawful arrest, a "warrantless,
nonconsensual blood draw of a suspected drunken driver complies
with the Fourth Amendment if: (1) there was probable cause to
believe the blood would furnish evidence of a crime; (2) the
blood was drawn under exigent circumstances; (3) the blood was
drawn in a reasonable manner; and (4) the suspect did not
reasonably object to the blood draw." State v. Tullberg, 2014
WI 134, ¶31, Wis. 2d , N.W.2d (citing State v.
Erickson, 2003 WI App 43, ¶9, 260 Wis. 2d 279, 659 N.W.2d 407;
Schmerber, 384 U.S. at 769-71).

16
 No. 2011AP1673-CRNM

exigency. McNeely, 133 S. Ct. at 1561. Both the metabolization

of alcohol in the bloodstream and the resulting loss of evidence

are factors to consider in determining whether a warrant is

required. Id. at 1568. However, "[i]n those drunk-driving

investigations where police officers can reasonably obtain a

warrant before a blood sample can be drawn without significantly

undermining the efficacy of the search, the Fourth Amendment

mandates that they do so." Id. at 1561.

¶40 Insofar as McNeely rejects a categorical rule

concerning exigency in drunk-driving cases, the United States

Supreme Court's decision abrogates our holding in Bohling.

Kennedy, Wis. 2d , ¶32 ("In light of the Supreme Court's

decision in McNeely, we recognize our holding in Bohling, that

the rapid dissipation of alcohol alone constitutes an exigent

circumstance sufficient for law enforcement officers to order a

warrantless investigatory blood draw, is no longer an accurate

interpretation of the Fourth Amendment's protection against

unreasonable searches and seizures."). McNeely therefore
creates a new constitutional rule of law for the state of

Wisconsin.

¶41 The retroactivity rule provides that "newly declared

constitutional rules must apply 'to all similar cases pending on

direct review.'" Dearborn, 327 Wis. 2d 252, ¶31 (quotation

omitted). Here, Foster's direct appeal was pending at the time

McNeely was decided. Despite that fact, the State contends that

Foster is not entitled to the benefit of retroactivity. The
State's position is that the retroactivity rule should not apply
17
 No. 2011AP1673-CRNM

to Foster since he did not have the foresight to raise a

"McNeely claim" prior to McNeely being decided. In other words,

according to the State, Foster forfeited his right to rely on

McNeely.11

¶42 We disagree. We are unaware of an exception to the

retroactivity rule for cases in which a criminal defendant fails

to predict the newly declared constitutional rule that is

subject to retroactive application. See Griffith v. Kentucky,

479 U.S. 314, 324-28 (1987) (discussing the exceptions to the

retroactivity rule). The State has not pointed to any such

exception. Therefore, we conclude that McNeely applies

retroactively to this case.

¶43 The question becomes whether the warrantless

nonconsensual draw of Foster's blood is constitutional under

McNeely. There is no dispute that the police relied on Bohling

to effectuate the search and seizure of Foster's blood. As we

understand Foster's challenge to the admissibility of his blood

11
Forfeiture involves a party's failure to timely assert a
right. State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761
N.W.2d 612.

18
 No. 2011AP1673-CRNM

draw results under McNeely, he questions whether exigent

circumstances justified the police's action.12

¶44 Foster points out that the facts of this case are

strikingly similar to those of McNeely.13 As a result, he asks

this court to hold that the blood draw violated his

constitutional right to be free from unreasonable searches and

seizures, just as the United States Supreme Court did in

McNeely.

¶45 We note that the United States Supreme Court did not

decide whether the facts of McNeely constituted sufficient

exigency to justify a warrantless nonconsensual blood draw under

its totality of the circumstances test because the state's

position relied entirely upon a per se rule of exigency in

12
Aside from exigency, Foster does not contest that the
four requirements we set forth in Bohling for conducting a
lawful search and seizure of a person's blood incident to arrest
were satisfied. In other words, Foster does not dispute that:
(1) his blood was taken to obtain evidence of intoxication
incident to a lawful arrest for a drunk-driving related
violation or crime; (2) there was a clear indication that his
blood draw would produce evidence of intoxication; (3) the
method used to perform his blood draw was a reasonable one that
was performed in a reasonable manner; and (4) he presented no
reasonable objection to the blood draw. As we explained in
State v. Kennedy, 2014 WI 132, ¶17, Wis. 2d , N.W.2d ,
McNeely did not abrogate these requirements.
13
Just like the defendant in McNeely, Foster was pulled
over for speeding; he showed signs of intoxication; he
acknowledged drinking; he failed field sobriety tests; he was
arrested; and he refused a blood draw. See Missouri v. McNeely,
569 U.S. , 133 S. Ct. 1552, 1556-57 (2013). Moreover, in this
case, as in McNeely, the police ordered a warrantless draw of
Foster's blood within one hour of the initial traffic stop. Id.

19
 No. 2011AP1673-CRNM

drunk-driving cases. McNeely, 133 S. Ct. at 1567. Thus, "the

arguments and the record [did] not provide the Court with an

adequate analytic framework for a detailed discussion of all the

relevant factors that can be taken into account in determining

the reasonableness of acting without a warrant." Id. at 1568.

¶46 Likewise, in this case, the State does not contend

that exigent circumstances aside from the natural dissipation of

alcohol in the bloodstream justified the police's search and

seizure of Foster's blood. It is the State's burden to prove

that exigent circumstances exist. State v. Robinson, 2010 WI

80, ¶24, 327 Wis. 2d 302, 786 N.W.2d 463. Under McNeely, the

State has failed to meet its burden in this regard. Therefore,

we conclude that the warrantless nonconsensual draw of Foster's

blood was unconstitutional.

C

¶47 "When there has been an unlawful search, a common

judicial remedy for the constitutional error is exclusion."

Dearborn, 327 Wis. 2d 252, ¶15. "The exclusionary rule bars
evidence obtained in an illegal search and seizure from a

criminal proceeding against the victim of the constitutional

violation." State v. Ward, 2000 WI 3, ¶46, 231 Wis. 2d 723, 604

N.W.2d 517. "The exclusionary rule is a judicially created

remedy, not a right, and its application is restricted to cases

where its remedial objectives will best be served." Dearborn,

327 Wis. 2d 252, ¶35. It is well established that the primary

purpose of the exclusionary rule is to deter unlawful police
conduct. Illinois v. Krull, 480 U.S. 340, 347 (1987).
20
 No. 2011AP1673-CRNM

¶48 An exception to the exclusionary rule exists where

"the officers conducting an illegal search 'acted in the

objectively reasonable belief that their conduct did not violate

the Fourth Amendment.'" Dearborn, 327 Wis. 2d 252, ¶33 (quoting

United States v. Leon, 468 U.S. 897, 918 (1984)). We expressly

adopted that "good faith exception" to the exclusionary rule in

Eason, 245 Wis. 2d 206, ¶¶73-74, a case involving the police's

objective, reasonable reliance on a facially valid search

warrant. We later applied the good faith exception to a

different factual scenario in Dearborn, holding "the good faith

exception precludes application of the exclusionary rule where

officers conduct a search in objectively reasonable reliance

upon clear and settled Wisconsin precedent that is later deemed

unconstitutional by the United States Supreme Court." Dearborn,

327 Wis. 2d 252, ¶51.

¶49 In Kennedy, Wis. 2d , ¶37, we relied on Dearborn

to hold that the good faith exception to the exclusionary rule

precluded suppression of the blood draw evidence which resulted
from the assumed unlawful search and seizure of Kennedy's blood.

We explained that the police reasonably relied on the clear and

settled law of Bohling to effectuate that search and seizure.

Accordingly, we saw no reason to depart from Dearborn and our

application of the good faith exception. Kennedy, __ Wis. 2d

__, ¶37.

¶50 Here, Foster offers several reasons that the

exclusionary rule is the appropriate remedy for the unlawful
search and seizure of his blood. First, he argues that
21
 No. 2011AP1673-CRNM

application of the exclusionary rule will deter future Fourth

Amendment violations——not by the police, but by the courts.

Foster's argument is atypical in this regard; deterrence

arguments usually center on the actions of police. He contends

that suppression in this case would deter state courts in the

future from interpreting Fourth Amendment rights too narrowly in

close cases. Specifically, he argued in his brief to this court

that it would strengthen the rule of law "if, in such

situations, state courts were encouraged to choose the more

expansive reading of the Fourth Amendment's protection."

¶51 Second, Foster contends that suppression is warranted

to preserve judicial integrity. He maintains that we failed to

follow the controlling precedent of Schmerber when we decided

Bohling, and as a result, our decision in Bohling was void ab

initio.14 According to Foster, it would serve the interests of

judicial integrity to hold that there is no basis for good faith

reliance on a void decision from this court, just as there is no

basis for good faith reliance on an unauthorized, defective
arrest warrant. See State v. Hess, 2010 WI 82, ¶60, 327 Wis. 2d

524, 785 N.W.2d 568 (holding that the good faith exception to

the exclusionary rule cannot save evidence seized based on a

warrant the judge had no authority to issue).

¶52 Third, Foster argues for a bright line rule excepting

bodily intrusion searches from the application of the good faith

14
Ab initio is defined as "[f]rom the beginning." Black's
Law Dictionary 4 (7th ed. 1999).

22
 No. 2011AP1673-CRNM

exception, on the grounds that this will maintain the sanctity

of an individual's body.

¶53 The State contends that the good faith exception to

the exclusionary rule applies. The State offers clear and

established precedent to support the application of the good

faith exception, namely, Dearborn. Thus, any departure from

that established precedent would require us to create a new rule

or exception.

¶54 The State also argues that application of the

exclusionary rule would serve no remedial purpose. With respect

to deterring police misconduct, the State maintains that

suppression would have the opposite effect: it would encourage

the police to ignore the law. As far as judicial integrity is

concerned, the State contends Bohling could be reasonably relied

upon because it represented a legitimate interpretation of

Schmerber, which was subject to two interpretations until

McNeely resolved the conflict.

¶55 Finally, the State argues that Bohling authorized the
police to perform a reasonable search and seizure of Foster's

blood. Therefore, there is no basis in existing law for

excluding bodily intrusion searches from the application of the

good faith exception, as Foster advocates.

¶56 We agree with the State and hold that the good faith

exception to the exclusionary rule applies because the police

conducted the search and seizure of Foster's blood in

objectively reasonable reliance on the clear and settled
precedent of Bohling. Foster's first two arguments in favor of
23
 No. 2011AP1673-CRNM

suppression rely heavily on the notion that we disregarded

controlling precedent when we decided Bohling. However, as we

explained in Bohling, Schmerber was susceptible to two

reasonable interpretations. Bohling, 173 Wis. 2d at 539. Other

courts agreed. See McNeely, 133 S. Ct. at 1558 n.2. Until the

United States Supreme Court in McNeely spoke definitively on the

issue of a per se exigency in drunk-driving cases, we were not

precluded from exercising our own judgment on the constitutional

matter. See Ward, 231 Wis. 2d 723, ¶38.

¶57 "Our decisions interpreting the United States

Constitution are binding law in Wisconsin until this court or

the United States Supreme Court declares a different opinion or

rule." Id. As a result, we reject Foster's contention that our

decision in Bohling was void ab initio,15 and we decline to find

that considerations of judicial integrity require exclusion of

the blood draw evidence.

¶58 Finally, we are unconvinced that we should adopt a

rule excluding bodily intrusion searches from the application of
the good faith exception to the exclusionary rule. While

intrusions into the human body implicate significant privacy

concerns, they are permissible under reasonable circumstances.

Schmerber, 384 U.S. at 770-72. Consistent with that principle,

Bohling authorized the search and seizure of Foster's blood.

15
Foster's reliance on State v. Hess, 2010 WI 82, 327 Wis.
2d 524, 785 N.W.2d 568 is therefore misplaced.

24
 No. 2011AP1673-CRNM

Thus, we see no reason to depart from Dearborn and our

application of the good faith exception.16

IV

¶59 We now turn to Foster's contention that the court of

appeals erred in accepting post-conviction counsel's no-merit

report, as he possesses a meritorious claim for ineffective

assistance of counsel. In finding that there was no arguable

merit to Foster's ineffective assistance claim, the court of

appeals reasoned that Foster was not prejudiced by his trial

counsel's failure to collaterally attack his prior convictions

because that challenge was unlikely to succeed.17 Underlying the

court of appeals' decision finding no prejudice was its

16
Other courts have applied the good faith exception to the
exclusionary rule to preclude suppression in light of McNeely's
retroactive effect. See, e.g., State v. Reese, 2014 WI App 27,
¶22, 353 Wis. 2d 266, 844 N.W.2d 396 (holding that the
warrantless nonconsensual blood draw evidence should not be
excluded in light of McNeely because the police followed clear
and settled law at the time of the search and seizure); United
States v. Lechliter, 3 F. Supp. 3d 400, 408-09 (D. Md. 2014)
(holding same); State v. Edwards, 2014 S.D. 63, ¶19, 853 N.W.2d
246 (holding same).
17
Foster's post-conviction motion for resentencing alleged
that his trial counsel was ineffective. Nevertheless, his
responses to the no-merit report claimed that both trial counsel
and post-conviction counsel were ineffective. In its opinion
and order, the court of appeals focused solely on the issue of
whether trial counsel’s allegedly deficient performance
prejudiced Foster, determining that it did not. However, we
presume that the court of appeals also considered the issue of
post-conviction counsel's alleged ineffectiveness and reached
the same result. See State v. Allen, 2010 WI 89, ¶¶72, 82, 328
Wis. 2d 1, 786 N.W.2d 124. Since both claims depend on a
finding of prejudice, we review them as one.

25
 No. 2011AP1673-CRNM

conclusion that, at the Machner hearing, the State had

affirmatively proved there was no basis for Foster's collateral

attack.

¶60 We begin our analysis by explaining Wisconsin's no-

merit procedure. We then discuss the procedure that a defendant

must follow in order to succeed on a collateral attack in an

enhanced sentence proceeding on the ground that he or she was

denied the constitutional right to counsel, as it informs our

decision on whether the court of appeals reasonably determined

that there was no arguable merit to Foster's ineffective

assistance claim. Finally, we address the parties' arguments

concerning the propriety of the court of appeals' decision to

accept the no-merit report in light of these legal principles.

We conclude that the court of appeals reasonably exercised its

discretion in accepting the no-merit report.

A

¶61 In Anders, 386 U.S. at 744-45, the United States

Supreme Court established a procedure that must be followed to
preserve a criminal defendant's Sixth Amendment18 right to

counsel on appeal where appellate counsel believes that an

appeal lacks any arguable merit. That procedure entails the

following:

18
The Sixth Amendment to the United States Constitution
provides in part:

In all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for
his defence.

26
 No. 2011AP1673-CRNM

[I]f counsel finds his case to be wholly frivolous,
after a conscientious examination of it, he should so
advise the court and request permission to withdraw.
That request must, however, be accompanied by a brief
referring to anything in the record that might
arguably support the appeal. A copy of counsel's brief
should be furnished the indigent and time allowed him
to raise any points that he chooses; the court—not
counsel—then proceeds, after a full examination of all
the proceedings, to decide whether the case is wholly
frivolous. If it so finds it may grant counsel's
request to withdraw and dismiss the appeal insofar as
federal requirements are concerned, or proceed to a
decision on the merits, if state law so requires. On
the other hand, if it finds any of the legal points
arguable on their merits (and therefore not frivolous)
it must, prior to decision, afford the indigent the
assistance of counsel to argue the appeal.
Anders, 386 U.S. at 744.

¶62 Wisconsin Stat. § (Rule) 809.32 codifies the procedure

of Anders. The rule imposes a few additional requirements on

counsel. Sutton, 339 Wis. 2d 27, ¶30. However, the essential

requirement is as follows:

After submission of the no-merit report and the
response, if the defendant provides one, the court of
appeals follows the requirement of Anders: it "not
only examines the no-merit report but also conducts
its own scrutiny of the record to find out whether
there are any potential appellate issues of arguable
merit."
State v. Allen, 2010 WI 89, ¶21, 328 Wis. 2d 1, 786 N.W.2d 124

(quoting State v. Fortier, 2006 WI App 11, ¶21, 289 Wis. 2d 179,

709 N.W.2d 893). If the court of appeals determines that an

appeal is frivolous, it "shall affirm the judgment of conviction

or final adjudication and the denial of any postconviction or

postdisposition motion and relieve the attorney of further

27
 No. 2011AP1673-CRNM

responsibility in the case." Wis. Stat. § (Rule) 809.32(3)

(2011-12).

¶63 Importantly, we "cannot assume that the court of

appeals disregarded its duties under Anders when deciding a no-

merit appeal." Allen, 328 Wis. 2d 1, ¶82. Therefore, we

presume that the court of appeals considered all issues of

arguable merit when conducting such a review even though it did

not spell everything out in its opinion. Id., ¶72.

B

¶64 To succeed on a claim for ineffective assistance of

counsel, a defendant must show both that counsel's performance

was deficient and that it prejudiced the defense. State v.

Carter, 2010 WI 40, ¶21, 324 Wis. 2d 640, 782 N.W.2d 695 (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)). As

explained, the court of appeals focused exclusively on the

prejudice prong of the Strickland test, determining that Foster

was not prejudiced by his trial counsel's failure to

collaterally attack his prior convictions because that attack
was unlikely to succeed.19 Accordingly, Foster's challenge to

the court of appeals' decision accepting the no-merit report

hinges on the likely success of a collateral attack on his prior

convictions.
19
To prove prejudice, a defendant must demonstrate that
"'there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different.'" State v. Carter, 2010 WI 40, ¶37, 324 Wis. 2d
640, 782 N.W.2d 695 (quoting Strickland v. Washington, 466 U.S.
668, 694 (1984)).

28
 No. 2011AP1673-CRNM

¶65 In State v. Hahn, 2000 WI 118, ¶28, 238 Wis. 2d 889,

618 N.W.2d 528, we held that a criminal defendant may

collaterally attack a prior conviction in an enhanced sentence

proceeding on the basis that he or she was denied the

constitutional right to counsel. We later set forth a procedure

that a defendant must follow in order to succeed on that type of

collateral attack. Ernst, 283 Wis. 2d 300, ¶37. We find it

helpful to briefly discuss the Ernst procedure.

¶66 For there to be a valid collateral attack, a criminal

defendant must "make a prima facie showing that his or her

constitutional right to counsel in a prior proceeding was

violated." Id., ¶25. General allegations will not suffice; "we

require the defendant to 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. (quoting State v. Hampton, 2004 WI 107,

¶46, 274 Wis. 2d 379, 683 N.W.2d 14). "Any claim of a violation
on a collateral attack that does not detail such facts will

fail." Ernst, 283 Wis. 2d 300, ¶25.

¶67 If the defendant makes out a prima facie case, "the

burden shifts to the State to prove by clear and convincing

evidence that the defendant's waiver of counsel was knowingly,

intelligently, and voluntarily entered." Id., ¶27. In

explaining the State's burden of proof, we cited favorably to

our decision in State v. Bangert, 131 Wis. 2d 246, 275, 389
N.W.2d 12 (1986), for the proposition that "the state will be
29
 No. 2011AP1673-CRNM

required to show that the defendant in fact possessed the

constitutionally required understanding and knowledge which the

defendant alleges the inadequate plea colloquy failed to afford

him." (emphasis added). If the State fails to meet its burden,

the defendant's collateral attack will prevail. Id.

C

¶68 We now turn to the parties' arguments concerning the

propriety of the court of appeals' decision to accept the no-

merit report in light of the foregoing legal principles.

¶69 Foster asserts that there is arguable merit to his

ineffective assistance of counsel claim20 and thus the court of

appeals erred in accepting the no-merit report. Specifically,

he contends that he was prejudiced by his trial counsel's

failure to collaterally attack his prior convictions because

that challenge was likely to succeed. Given the evidence

adduced at the Machner hearing, Foster believes that he would

have prevailed on a collateral attack because the State could

not prove that, at the time he allegedly waived counsel, he was

20
Like the circuit court and the court of appeals, Foster
focuses exclusively on the prejudice prong of his claim for
ineffective assistance. Since we are not required to perform an
independent review of the record under Anders, our discussion is
limited to whether the court of appeals reasonably determined
that there was no arguable merit to Foster's ineffective
assistance claim on the basis that he was not prejudiced by his
trial counsel's failure to collaterally attack his prior
convictions.

30
 No. 2011AP1673-CRNM

aware of the general range of penalties that he faced.21 The

United States Supreme Court has held that a defendant must

possess such knowledge in order to validly waive his or her

right to counsel. Iowa v. Tovar, 541 U.S. 77, 81 (2004).

¶70 According to the State, the court of appeals properly

accepted the no-merit report on the basis that Foster failed to

demonstrate prejudice for purposes of his claim for ineffective

assistance. The State argues that Foster is unlikely to succeed

on a collateral attack because he has not made a prima facie

showing of an invalid waiver of counsel in the prior

proceedings, as required by Ernst. Relying on Posnanski v. City

of West Allis, 61 Wis. 2d 461, 466, 213 N.W.2d 51 (1973), the

State asserts that the incredible nature of Foster’s testimony

at the Machner hearing "erased" Foster's allegations made in

support of his prima facie case. The result, per the State's

reasoning, is that it never had the burden to prove that Foster

knowingly, intelligently, and voluntarily waived his right to

counsel.

21
Foster first raised this argument in his briefs before
this court. He sometimes conflates this issue with a separate
one, namely, whether he was aware of the seriousness of the
charges in the prior proceedings. See State v. Klessig, 211
Wis. 2d 194, 206, 564 N.W.2d 716 (1997) (identifying the
"seriousness of charges" and the "general range of penalties" as
separate issues). However, a fair reading of Foster's argument
reveals that he is challenging the court of appeals' decision
solely on the basis that there is no evidence to suggest that he
was aware of the general range of penalties that he faced at the
time he waived his right to counsel in the prior proceedings.

31
 No. 2011AP1673-CRNM

¶71 Alternatively, the State asks that we treat Foster's

inability to recall the events of the prior drunk-driving

proceedings at the Machner hearing as a refusal to testify.

Under Ernst, Foster’s refusal to testify would allow a court to

"draw the reasonable inference that the State has satisfied its

burden, and that the waiver of counsel was a knowing,

intelligent, and voluntary one." Ernst, 283 Wis. 2d 300, ¶35.

¶72 We agree with the State that the court of appeals

properly accepted the no-merit report on the basis that Foster

failed to demonstrate prejudice for purposes of his ineffective

assistance claim. In reaching that result, however, we do not

adopt the State's reasoning, which would require us to perform

an independent review of the record.22 Because it is apparent

that the court of appeals examined all of the relevant facts and

exercised reasonable and lawful discretion in determining that

there was no arguable merit to Foster's ineffective assistance

claim, we affirm the court of appeals.

¶73 The court of appeals clearly examined the relevant
facts necessary to make its determination that there was no

arguable merit to Foster's ineffective assistance claim. In

22
The court of appeals did not employ the State's reasoning
in reaching its conclusion that Foster had not demonstrated
prejudice for purposes of ineffective assistance. In finding no
prejudice, the court of appeals reasoned that Foster was
unlikely to succeed on a collateral attack of his prior
convictions because the State had affirmatively proved, per
Ernst, that there was no basis for making such a challenge. As
explained, our review is limited to whether that decision
constituted an erroneous exercise of discretion.

32
 No. 2011AP1673-CRNM

evaluating whether Foster was prejudiced by his trial counsel's

failure to collaterally attack his prior convictions, the court

of appeals appropriately reviewed the circuit court's findings

of fact with respect to the likely success of that challenge.

The court of appeals specifically referenced the circuit court's

findings of fact in its decision and order, including those

related to the incredible nature of Foster's testimony and the

validity of the waiver forms that Foster admitted to signing at

the prior proceedings.

¶74 The court of appeals then correctly deferred to the

aforementioned factual findings in reaching its decision on the

no-merit issue. See Carter, 324 Wis. 2d 640, ¶19 (explaining

that an appellate court will uphold a circuit court's findings

of fact with respect to ineffective assistance unless they are

clearly erroneous). Based on those factual findings, the court

of appeals reasonably concluded that Foster had failed to meet

his burden of proving prejudice for purposes of his claim for

ineffective assistance. Stated differently, the evidence
supports the court of appeals' reasonable determination that

Foster had not affirmatively established that his trial

counsel's allegedly deficient performance adversely affected his

sentence.

¶75 Although Foster contends that the court of appeals did

not reach a reasonable conclusion in accepting the no-merit

report because it failed to recognize a deficiency in the

record, namely, the absence of evidence indicating that he was
aware of the general range of penalties he faced at the time he
33
 No. 2011AP1673-CRNM

waived his right to counsel in the prior proceedings, we

disagree.

¶76 We explained in Ernst that a defendant must allege

specific facts to demonstrate that he or she did not know or

understand the information that should have been provided in the

previous proceeding. Ernst, 283 Wis. 2d 300, ¶25. Only then is

the State required to show that "'the defendant in fact

possessed the constitutionally required understanding and

knowledge which the defendant alleges the inadequate plea

colloquy failed to afford him.'" Id., ¶31 (quoting Bangert, 131

Wis. 2d at 275) (emphasis added).

¶77 In this case, Foster raised an assortment of issues in

his affidavit in support of his post-conviction motion for

resentencing. However, he did not allege that he was unaware of

the general range of penalties that he faced at the time he

waived his right to counsel in the prior proceedings.

Accordingly, Foster failed to make a prima facie showing on that

issue. That means the burden never shifted to the State to
prove otherwise by clear and convincing evidence. To hold that

the State had the burden to affirmatively prove that Foster

possessed such knowledge where Foster did not allege a

deficiency in that regard is to ignore the legal principle that

we presume a proper waiver of counsel in situations involving

collateral attacks. Ernst, 283 Wis. 2d 300, ¶31 n.9.

¶78 Because the court of appeals carefully examined the

relevant facts and exercised reasonable and lawful discretion in
determining that there was no arguable merit to Foster's
34
 No. 2011AP1673-CRNM

ineffective assistance claim, we affirm its decision to accept

post-conviction counsel's no-merit report.

V

¶79 We hold that McNeely applies retroactively to the

facts of this case and that the warrantless nonconsensual blood

draw performed on Foster violated his right to be free from

unreasonable searches and seizures. However, we decline to

apply the exclusionary rule to suppress the evidence derived

from Foster's blood. Because the police acted in objectively

reasonable reliance upon the clear and settled precedent of

Bohling in effectuating the search and seizure of Foster's

blood, the good faith exception to the exclusionary rule

precludes suppression of the blood draw evidence.

¶80 We further hold that the court of appeals properly

accepted post-conviction counsel's no-merit report. The court

of appeals reasonably exercised its discretion in finding no

arguable merit to Foster's ineffective assistance of counsel

claim on the basis that Foster failed to demonstrate the
requisite prejudice to support that claim.

¶81 Therefore, we affirm the decision of the court of

appeals and uphold Foster's conviction.

By the Court.—The decision of the court of appeals is

affirmed.

35
 No. 2011AP1673-CRNM.ssa

¶82 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). I

conclude that the majority opinion has erred in its analysis of

the court of appeals' decision accepting the no-merit report.

For this reason, I dissent.

¶83 Before I write on the no-merit issue, which is an

issue peculiar to the instant case but takes up a lesser part of

the majority opinion, I write on the majority opinion's lengthy

discussion of the constitutionality of warrantless,

nonconsensual blood draws performed on persons suspected of

driving under the influence of an intoxicant in light of

Missouri v. McNeely, 133 S. Ct. 1552 (2013).

¶84 The majority opinion is part of a trilogy of cases

addressing McNeely. In addition to the instant case, the court

addresses McNeely in State v. Kennedy, 2014 WI 132, ___ Wis. 2d

___, ___ N.W.2d ___, and State v. Tullberg, 2014 WI 134, ___

Wis. 2d ___, ___ N.W.2d ___, all released on the same date and

referencing each other.

¶85 I examine two problems I see arising from the three
opinions. These problems should have been worked out before

releasing the opinions, but the new procedure for circulating

and mandating opinions does not automatically allow for

conferences on opinions. Because of the new procedure, the

three opinions were on different orbits, with each draft opinion

a moving target of revisions and with no opportunity for

considering and conferencing the three opinions together.

1
 No. 2011AP1673-CRNM.ssa

¶86 For the text of our new procedure and some comments,

see my concurrence in State v. Gonzalez, 2014 WI 124, ¶¶25-40,

___ Wis. 2d ___, ___ N.W.2d ___.

I

¶87 With regard to the constitutionality of warrantless,

nonconsensual blood draws performed on drunk-driving suspects, I

agree that a warrantless nonconsensual blood draw is

unconstitutional in the absence of exigent circumstances or some

other exception to the warrant requirement. Thus, I agree with

the majority opinion that the blood draw in the instant case was

unconstitutional.

¶88 I also reluctantly agree with the majority opinion

that the unconstitutional blood test results are nevertheless

admissible under the good faith exception to the exclusionary

rule. My reluctance is based on the concerns expressed in my

dissent in State v. Dearborn, 2010 WI 84, ¶¶52-82, 327

Wis. 2d 252, 786 N.W.2d 97 (Abrahamson, C.J., dissenting). As

in Dearborn, I conclude that admitting evidence seized
unconstitutionally undermines the integrity of the judicial

process.

¶89 I briefly state the factual posture of our three

McNeely cases to keep the cases in focus. The instant case and

Kennedy have essentially the same fact pattern. Indeed, the

majority opinion in the instant case states: "We recently

addressed a similar issue in State v. Kennedy, 2014 WI 132, ___

Wis. 2d ___, ___ N.W.2d ___, and we apply the same analysis

2
 No. 2011AP1673-CRNM.ssa

employed in Kennedy to this case."1 Nevertheless, the majority

opinion does not leave the issue there; it restates the Kennedy

opinion, possibly making changes as it goes.

¶90 In both Kennedy and the instant case, the defendant

was arrested for driving under the influence.2 In both cases, a

warrantless, nonconsensual blood draw was performed. In the

instant case, the blood draw was performed about one hour after

the traffic stop took place; in Kennedy, the blood draw was

performed just under three hours after the accident took place.3

The outcome of both cases rests on the good faith exception.

¶91 In Tullberg, the defendant was not arrested. The

blood draw was performed approximately two and a half hours

after the accident took place.

1
Majority op., ¶30.
2
In State v. Kennedy, 2014 WI 132, ___ Wis. 2d ___, ___
N.W.2d ___, the court assumes but does not decide that Kennedy
was under arrest when he was placed in the squad car. Kennedy,
2014 WI ___, ¶20. In any event, the court in Kennedy concludes
that there was probable cause to arrest the defendant for
driving under the influence. Kennedy, 2014 WI 132, ¶20. This
satisfies the arrest requirement in State v. Bohling, 173
Wis. 2d 529, 533-34 494 N.W.2d 399 (1993), abrogated on other
grounds by Missouri v. McNeely, 133 S. Ct. 1552 (2013).
3
Wisconsin Stat. § 885.235(1g) provides in part:
"[E]vidence of the amount of alcohol in the person's blood at
the time in question, as shown by chemical analysis of a sample
of the person's blood . . . is admissible . . . if the sample
was taken within 3 hours after the event to be proved." After
the three-hour mark, expert testimony is required before the
results of testing conducted on the blood sample can be admitted
as evidence.

3
 No. 2011AP1673-CRNM.ssa

¶92 One troublesome area in the three cases is reconciling

the four-part test in State v. Erickson, 2003 WI App 43, 260

Wis. 2d 279, 659 N.W.2d 407, and another four-part test in State

v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), abrogated on

other grounds by Missouri v. McNeely, 133 S. Ct. 1552 (2013).

¶93 The Erickson test for the constitutionality of a

warrantless, nonconsensual blood draw performed on a drunk

driving suspect is as follows:

A warrantless, nonconsensual blood draw of a suspected
drunken driver complies with the Fourth Amendment if:
(1) there was probable cause to believe the blood
would furnish evidence of a crime; (2) the blood was
drawn under exigent circumstances; (3) the blood was
drawn in a reasonable manner; and (4) the suspect did
not reasonably object to the blood draw.4
¶94 The Bohling test for the constitutionality of a

warrantless, nonconsensual blood draw performed on a drunk-

driving suspect under exigent circumstances is as follows:

(1) [T]he blood draw is taken to obtain evidence of
intoxication from a person lawfully arrested for a
drunk-driving related violation or crime, (2) there is
a clear indication that the blood draw will produce
evidence of intoxication, (3) the method used to take
the blood sample is a reasonable one and performed in
a reasonable manner, and (4) the arrestee presents no
reasonable objection to the blood draw.5

4
State v. Tullberg, 2014 WI 134, ¶31, ___ Wis. 2d ___, ___
N.W.2d ___ (citing State v. Erickson, 2003 WI App 43, 260
Wis. 2d 279, 659 N.W.2d 407).
5
State v. Bohling, 173 Wis. 2d 529, 533-34, 494 N.W.2d 399
(1993).

4
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¶95 The two tests are different. Bohling applies when

there is a lawful arrest or probable cause to arrest.6 Erickson

makes no reference to arrest.

¶96 Tullberg applies the Erickson test because in both

Tullberg and Erickson there was no arrest.7 In the instant case,

the court differentiates between Bohling and Erickson by looking

to whether the defendant was arrested.8 Kennedy also relegates

the Erickson test to the no-arrest situation.9

¶97 The distinction between arrest and no-arrest

situations in the Bohling and Erickson tests is questionable

because the Bohling test applies when there is either an arrest

or probable cause to arrest. In Tullberg, the court concludes

there was probable cause to arrest.10 Thus, the Bohling test

could have been applied in Tullberg. This conclusion is

supported by the repeated declaration in Tullberg and Kennedy

that the circumstances giving rise to probable cause to search

6
See Bohling, 173 Wis. 2d at 534 n.1 ("Probable cause to
arrest substitutes for the predicate act of lawful arrest.").
7
See Tullberg, 2014 WI 134, ¶31.
8
Majority op., ¶38 n.10.
9
See Kennedy, 2014 WI 132, ¶17 (describing Erickson as a
non-arrest case).
10
Tullberg, 2014 WI 134, ¶¶37, 40. Too often, the Tullberg
opinion discusses probable cause without specifying whether it
is referring to probable cause to search or probable cause to
arrest.

5
 No. 2011AP1673-CRNM.ssa

the body by a blood draw are one and the same as those

establishing probable cause to arrest.11

¶98 The facts supporting probable cause to search and

probable cause to arrest may be the same in the drunk-driving

context. However, the Erickson language ("probable cause to

believe the blood would furnish evidence of a crime") differs

from the Bohling language ("there is a clear indication that the

blood draw will produce evidence of intoxication"). In State v.

Seibel, 163 Wis. 2d 164, 179, 471 N.W.2d 226 (1991), the court

held that the clear indication factor of the Bohling test means

"blood may be drawn incident to an arrest if there is a

reasonable suspicion that the blood contains evidence" of a

crime. The court thus held in Seibel that probable cause to

search is not necessarily required to support a warrantless

blood draw. The instant case reaffirms this holding in Seibel.12

11
See Tullberg, 2014 WI 134, ¶55 ("When there is probable
cause for a blood draw, as there is in the case at issue, there
also is probable cause to arrest for operating while
intoxicated."); Kennedy, 2014 WI 134, ¶17 ("[W]hether there is a
'clear indication that the blood draw will produce evidence of
intoxication[ ]' in this case is also satisfied by the same
facts that support a finding of probable cause to arrest.");
Kennedy, 2014 WI 132, ¶18 ("Rather where law enforcement
officers have probable cause to search a suspect's blood for
evidence of a drunk-driving related violation or crime, they
will necessarily satisfy the first two Bohling factors."). But
see Kennedy, 2014 WI 132+, ¶18 n.7 ("While probable cause to
search for evidence of a drunk-driving related violation or
crime is sufficient to satisfy the first two factors of Bohling,
the converse is not necessarily true. The fact of an arrest, or
probable cause to arrest, for a drunk-driving related violation
or crime alone will not permit an investigatory blood draw.").
12
Majority op., ¶34 n.9.

6
 No. 2011AP1673-CRNM.ssa

¶99 I dissented in Seibel, stating that the "clear

indication" language in Schmerber v. California, 384 U.S. 757

(1966), which was the source of the clear indication factor in

Bohling,13 "should be read to require the police to meet at least

the probable cause standard before they can order a blood test

as a search incident to arrest."14 In my view, McNeely reaffirms

the requirement that warrantless, nonconsensual blood draws

performed on drunk-driving suspects be supported by probable

cause to search.

¶100 McNeely does not squarely address whether probable

cause to search is required to support warrantless,

nonconsensual blood draws in the drunk-driving context.

However, McNeely does state that "[i]n those drunk-driving

investigations where police officers can reasonably obtain a

warrant before a blood sample can be drawn without significantly

undermining the efficacy of the search, the Fourth Amendment

mandates that they do so."15

¶101 To obtain a warrant, probable cause to search the body
is of course required.16 McNeely permits an exception to the

13
See Bohling, 173 Wis. 2d at 537.
14
State v. Seibel, 163 Wis. 2d 164, 186, 471 N.W.2d 226
(1991) (Abrahamson, J., dissenting).
15
Missouri v. McNeely, 133 S. Ct. 1552, 1561 (2013). See
also majority op., ¶39 (quoting this passage in McNeely).
16
U.S. Const. amend. IV ("The right of the people to be
secure in their persons . . . against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause . . . .").

7
 No. 2011AP1673-CRNM.ssa

warrant requirement when exigent circumstances mean the act of

obtaining a warrant would "significantly undermin[e] the

efficacy of the search . . . ." McNeely does not permit an

exception to the warrant requirement when there is no probable

cause to search the body by taking a blood draw and thus no

possibility of obtaining a warrant in the first place.

¶102 In light of McNeely, does the court still believe the

Bohling test's "clear indication" factor requires only a

"reasonable suspicion" that the blood draw will produce evidence

of intoxication? If not, is Erickson the new test?

¶103 I turn now to a second issue in the three opinions:

exigent circumstances. The instant opinion concludes that

because the State does not contend that exigent circumstances

existed aside from the natural dissipation of alcohol in the

blood, the State has failed to meet its burden and the

warrantless blood draw was unconstitutional.17 I agree with this

analysis.

¶104 Although the relevant facts are the same in Kennedy,
namely that the State does not contend that exigent

circumstances existed aside from the natural dissipation of

alcohol in the blood, Kennedy does not treat the exigent

circumstance issue in the same way as the instant opinion.

Kennedy does not conclude that the State has failed to meet its

burden. Rather, Kennedy keeps the issue alive (see Kennedy,

2014 WI 132, ¶¶6, 34), declaring that the court assumes,

17
Majority op., ¶46.

8
 No. 2011AP1673-CRNM.ssa

"without deciding, that the warrantless investigatory blood draw

performed on Kennedy was not supported by exigent

circumstances." Kennedy intimates that exigent circumstances

might very well have existed by declaring that "[o]ur holding in

this case must not be read to affirmatively conclude that

exigent circumstances did not support the warrantless

investigatory blood draw . . . ."18 Kennedy seems to be champing

at the bit to determine that exigent circumstances were present,

regardless of whether the State carried its burden, but the

court restrains itself.

¶105 Finally, Tullberg addresses the exigent circumstances

exception to validate the warrantless, nonconsensual search of

the defendant's blood. The validity of the warrantless,

nonconsensual blood draw in Tullberg turns on probable cause to

search the body (by a blood draw) and exigent circumstances.19

¶106 As I see Tullberg, the court once again whittles down

what constitutes exigent circumstances.20 The State did not

demonstrate specific, articulable facts showing that the warrant
process would significantly undermine the efficacy of the

State's search of the defendant's body for blood and thus that

the warrantless search was imperative under the circumstances.21

18
Kennedy, 2014 WI 132, ¶34 n.13.
19
Tullberg, 2014 WI 134, ¶31.
20
See State v. Subdiaz-Osorio, 2014 WI 87, 357 Wis. 2d 41,
849 N.W.2d 748 (Abrahamson, C.J., dissenting).
21
See McNeely, 133 S. Ct. at 1561.

9
 No. 2011AP1673-CRNM.ssa

¶107 In Tullberg, the officer who ordered the blood draw

never tried to get a warrant. The officer did not think one was

needed in light of Bohling. The circuit court addressed the

procedure for getting a warrant, but did not estimate the time

it would take to get one.22

¶108 For the reasons set forth, I am concerned that the

three opinions have not been carefully integrated.23

II

¶109 I turn to the majority opinion's analysis of the court

of appeals' decision to accept the no-merit report.

¶110 When a no-merit report is submitted as it was in the

instant case, the court of appeals must independently examine

the record to determine whether there are arguably meritorious

grounds for appeal.24 If there are not, the court of appeals may

22
Tullberg, 2014 WI 134, ¶48 n.25. This footnote in
Tullberg is based on the circuit court's comments, not on
testimony of either a State or defense witness. This court has
held that a "circuit court may not rely on its own personal
observations of events not contained in the record." State v.
Anson, 2005 WI 96, ¶33, 282 Wis. 2d 629, 698 N.W.2d 776. For
additional discussion of when a presiding judge can take
judicial notice and when he or she is testifying as a witness,
see State v. Novy, 2013 WI 23, ¶¶114-119, 346 Wis. 2d 289, 827
N.W.2d 610 (Abrahamson, C.J., concurring).
23
The majority opinion's reliance in the instant case on a
court of appeals case (State v. Reese, 2014 WI App 27, ¶22, 353
Wis. 2d 266, 844 N.W.2d 396) is not persuasive. See majority
op., ¶58 n.16. The defendant in Reese has filed a petition for
review, which is pending. On June 12, 2014, the court issued an
order holding the petition for review pending this court's
disposition of the instant case, Kennedy, and Tullberg.
24
See Anders v. California, 386 U.S. 738, 744 (1967).

10
 No. 2011AP1673-CRNM.ssa

accept the no-merit report.25 If there are, the court of appeals

must consider them. This procedure "assures that indigent

defendants have the benefit of what wealthy defendants are able

to acquire by purchase——a diligent and thorough review of the

record and an identification of any arguable issues revealed by

that review."26

¶111 In Anders v. California, 386 U.S. 738, 744 (1967),

which established this no-merit procedure, the United States

Supreme Court held as follows:

[I]f counsel finds [a defendant's] case to be wholly
frivolous, after a conscientious examination of it, he
should so advise the court and request permission to
withdraw. That request must [] be accompanied by a
brief referring to anything in the record that might
arguably support the appeal. . . . [T]he court——not
counsel——then proceeds, after a full examination of
all the proceedings, to decide whether the case is
wholly frivolous. If it so finds it may grant
counsel's request to withdraw and dismiss the
appeal . . . . [I]f it finds any of the legal points
arguable on their merits . . . it must . . . afford
the indigent the assistance of counsel to argue the
appeal.
¶112 Wisconsin Stat. § 809.32 outlines the Anders procedure

followed by Wisconsin courts. Wisconsin Stat. § 809.32(3)
states in relevant part:

In the event that the court of appeals determines that
further appellate proceedings would be frivolous and
without any arguable merit, the court of appeals shall
affirm the judgment of conviction or final

25
See Anders, 386 U.S. at 744.
26
State ex rel. Flores v. State, 183 Wis. 2d 587, 626, 516
N.W.2d 362 (1994) (Abrahamson, C.J., concurring) (citing McCoy
v. Court of Appeals, 486 U.S. 429, 439 (1988)).

11
 No. 2011AP1673-CRNM.ssa

adjudication and the denial of any postconviction or
postdisposition motion and relieve the attorney of
further responsibility in the case.
¶113 In the present case, the defendant's appellate counsel

submitted a no-merit report to the court of appeals. The

defendant filed a brief in response, asserting several potential

grounds for appeal. The court of appeals accepted the no-merit

report, stating: "After our independent review of the record,

we conclude there is no arguable merit to any issue that could

be raised on appeal."27

¶114 The defendant then filed a petition for review of the

court of appeals' opinion and order.

¶115 It will be helpful in understanding the following

discussion to know that the defendant's waiver of counsel in

three prior Oklahoma cases is at issue in the instant case

because those convictions were considered at sentencing.

¶116 The defendant argued at various points that the prior

convictions should have been collaterally attacked by Wisconsin

counsel (and thus not considered at sentencing in the instant

case) either because the defendant did not knowingly,

intelligently, and voluntarily enter his pleas in those cases or

because the defendant did not knowingly, intelligently, and

voluntarily waive counsel before entering the pleas. The

defendant has claimed ineffective assistance of counsel in the

instant case based on the failure of Wisconsin counsel to bring

a collateral attack.

27
State v. Foster, No. 2011AP1673-CRMN, unpublished opinion
& order at 1 (Wis. Ct. App. Dec. 10, 2012).

12
 No. 2011AP1673-CRNM.ssa

¶117 This summary simplifies a somewhat complex set of

facts. The defendant has been represented by numerous attorneys

in the course of this litigation. He has raised ineffective

assistance of counsel claims against several of them at

different points. Additional details are unnecessary to this

discussion.

¶118 I conclude that the majority opinion commits three

errors in affirming the court of appeals' opinion and order

accepting the no-merit report.

¶119 First, the majority opinion errs in reviewing the

court of appeals' decision to accept the no-merit report under

the erroneous exercise of discretion standard.28 Whether the

court of appeals properly accepted the no-merit report (that is,

whether there were arguably meritorious grounds for the

defendant to appeal) is a question of law for the court of

appeals to decide.

¶120 As discussed above, the court of appeals is required

to "conduct a full examination of all the proceedings [] to
determine if the appeal would indeed be wholly frivolous" before

accepting a no-merit report.29 Whether an appeal would be

28
See majority op., ¶9 (stating that "[t]he court of
appeals reasonably exercised its discretion in finding no
arguable merit to Foster's ineffective assistance of counsel
claim"); ¶28 (stating that the erroneous exercise of discretion
standard of review applies).
29
State ex rel. Seibert v. Macht, 2001 WI 67, ¶14, 244
Wis. 2d 378, 627 N.W.2d 881 (internal quotation marks omitted).

13
 No. 2011AP1673-CRNM.ssa

frivolous is a question of law.30 This court reviews questions

of law independently of the circuit court and court of appeals.31

Thus, whether the court of appeals properly accepted the no-

merit report presents a question of law this court decides

independently of the circuit court and court of appeals. The

majority opinion errs in applying the erroneous exercise of

discretion standard to review the court of appeals' conclusion

of law that there is no arguable merit to any of the defendant's

potential grounds for appeal.

¶121 The majority opinion cites State v. Sutton, 2012 WI

23, ¶¶45-48, 339 Wis. 2d 27, 810 N.W.2d 210, to support its

conclusion that the court of appeals reasonably exercised its

discretion.32 But Sutton addressed a much narrower issue and

does not dictate the standard of review to be applied in the

present case. The discretionary decision in Sutton was whether

the court of appeals should accept a no-merit report when the

record revealed an arguably meritorious claim that had not been

preserved.33 We stated that the court of appeals has discretion

30
Howell v. Denomie, 2005 WI 81, ¶9, 282 Wis. 2d 130, 698
N.W.2d 621 ("[A]n appellate court decides whether an appeal is
frivolous solely as a question of law.").
31
Seibert, 244 Wis. 2d 378, ¶8.
32
See majority op., ¶28.
33
State v. Sutton, 2012 WI 23, ¶¶39-44, 48, 339 Wis. 2d 27,
810 N.W.2d 210 ("The court of appeals did not have to accept the
no-merit report that outlined an unpreserved error at the
circuit court. It is well-accepted appellate practice that an
appellate court has discretion to reach the merits of an
unpreserved issue." (Emphasis added.)).

14
 No. 2011AP1673-CRNM.ssa

in a no-merit proceeding to decide whether to disregard the fact

that the defendant failed to preserve an issue and to "reach the

merits of [that] unpreserved issue."34 The instant case does not

involve this kind of discretionary decision.

¶122 Even in Sutton, where the discretionary decision

rested on a mistake of law, this court remanded the matter to

the court of appeals to reject the no-merit report.35 In the

instant case, the court of appeals' decision was based on an

error of law. As I discuss next, the court of appeals

incorrectly treated the circuit court's determination that the

defendant's waivers of counsel in three prior Oklahoma cases

were knowing, intelligent, and voluntary as a finding of fact

rather than a conclusion of law.36 Under the standard of review

employed by the majority opinion, applying an incorrect legal

standard, as the court of appeals did here, is an erroneous

exercise of discretion that requires reversal.37

¶123 The majority opinion's second error is its failure to

acknowledge that the court of appeals treated the circuit
court's determination that the defendant's waivers of counsel in

three prior Oklahoma cases were knowing, intelligent, and

34
State v. Sutton, 2012 WI 23, ¶39, 339 Wis. 2d 27, 810
N.W.2d 210.
35
See Sutton, 339 Wis. 2d 27, ¶¶49-50.
36
State v. Foster, No. 2011AP1673-CRMN, unpublished opinion
& order at 5 (Wis. Ct. App. Dec. 10, 2012).
37
LeMere v. LeMere, 2003 WI 67, ¶14, 262 Wis. 2d 426, 663
N.W.2d 789.

15
 No. 2011AP1673-CRNM.ssa

voluntary as a finding of fact rather than a conclusion of law.38

The court of appeals' opinion and order states:

[The defendant] argues that the waivers of counsel
were not made knowingly and intelligently. As we
described above, the circuit court has already
determined otherwise. On appeal, we affirm that
finding of fact unless it is clearly erroneous. [The
defendant's] response does not give us any reason to
believe the findings were clearly erroneous.39
¶124 Whether the defendant's waivers of counsel were

knowing, intelligent, and voluntary is a question of

constitutional fact, not a question of fact.40 When reviewing a

question of constitutional fact, an appellate court accepts the

circuit court's findings of historical facts unless clearly

erroneous, but independently applies constitutional principles

to those facts.41 In other words, the ultimate question of

whether the defendant's waivers of counsel were constitutionally

38
State v. Foster, No. 2011AP1673-CRMN, unpublished opinion
& order at 5 (Wis. Ct. App. Dec. 10, 2012).
39
State v. Foster, No. 2011AP1673-CRMN, unpublished opinion
& order at 5 (Wis. Ct. App. Dec. 10, 2012) (citations omitted).
40
State v. Ernst, 2005 WI 107, ¶10, 283 Wis. 2d 300, 699
N.W.2d 92 ("Whether a defendant knowingly, intelligently, and
voluntarily waived his Sixth Amendment right to counsel requires
the application of constitutional principles to the facts.").
41
See, e.g., State v. Hoppe, 2009 WI 41, ¶45, 317
Wis. 2d 161, 765 N.W.2d 794 (applying the two-step
constitutional fact analysis to the question of whether a
defendant's plea was entered knowingly, intelligently, and
voluntarily); Ernst, 283 Wis. 2d 300, ¶10 (noting that
"[w]hether a defendant knowingly, intelligently, and voluntarily
waived his Sixth Amendment right to counsel requires the
application of constitutional principles to the facts").

16
 No. 2011AP1673-CRNM.ssa

valid is a question of law the court of appeals should have

decided independently of the circuit court.

¶125 The majority opinion ignores this error by the court

of appeals without any explanation. The majority opinion does

so despite the fact that an error of law is grounds for reversal

even under the erroneous exercise of discretion standard.

"Discretionary decisions must be arrived at by application of

the proper legal standards; the failure to apply the correct

legal standards is an erroneous exercise of discretion."42

¶126 The majority opinion's third error is ignoring the

court of appeals' failure to review one of the defendant's

potential grounds for appeal.

¶127 In his brief to this court, the defendant raises a

second claim of ineffective assistance of counsel in Wisconsin.

The defendant asserts that when he entered pleas in the three

prior Oklahoma cases, he was not aware of "the general range of

penalties" he would face. Thus, the pleas were not knowing,

intelligent, and voluntary, and the resulting convictions should
have been collaterally attacked in Wisconsin.

¶128 This claim is distinct from the defendant's earlier

claim of improper waiver of counsel in the same three prior

Oklahoma cases. Even if the defendant properly waived counsel

before entering his pleas in those cases, the pleas may not have

been knowing, intelligent, and voluntary if he was unaware of

42
LeMere, 262 Wis. 2d 426, ¶14.

17
 No. 2011AP1673-CRNM.ssa

"the potential punishment if convicted."43 But see State v.

Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, modified on

reconsideration, 2001 WI 6, 241 Wis. 2d 85, 621 N.W.2d 902

(governing the bases of an offender's challenge at sentencing to

a prior conviction).

¶129 The court of appeals erred in overlooking the

defendant's second claim of ineffective assistance of Wisconsin

counsel, and the majority opinion errs in ignoring the court of

appeals' oversight.

¶130 If the defendant has arguably meritorious grounds for

appeal, he must be permitted to bring that appeal and to be

represented in the process. Under Anders, the court of appeals

must independently and thoroughly review the record for any

arguably meritorious grounds for appeal.44

¶131 Because the court of appeals employed an incorrect

legal standard in reviewing one of the defendant's potential

43
Wis. Stat. § 971.08(1)(a). This statute does not govern
the defendant's pleas entered in Oklahoma, not Wisconsin.
However, Wis. Stat. § 971.08 codifies the federal constitutional
requirements for a knowing, intelligent, and voluntary plea,
which do apply in Oklahoma. See State v. Brown, 2006 WI 100,
¶23, 293 Wis. 2d 594, 716 N.W.2d 906 ("The duties established in
Wis. Stat. § 971.08 . . . are designed to ensure that a
defendant's plea is knowing, intelligent, and voluntary. The
faithful discharge of these duties is the best way we know for
courts . . . to avoid constitutional problems.").
44
See Pennsylvania v. Finley, 481 U.S. 551 (1987) (because
a defendant has no constitutional right to counsel in state
postconviction proceedings, the Anders procedure does not apply
in such proceedings); State v. Mosley, 102 Wis. 2d 636, 662-63,
307 N.W.2d 200 (1981) (the Anders procedure applies only at the
first level of appeal).

18
 No. 2011AP1673-CRNM.ssa

claims and overlooked another potential claim, it did not

conduct a proper Anders review and thus did not validly accept

the no-merit report. The case should be remanded to the court

of appeals for a proper Anders review.45 I agree with the

defendant that the defendant's deadlines to file a notice of

appeal or motion for postconviction relief should be reinstated.

¶132 For the reasons set forth, I dissent.

¶133 I am authorized to state that Justice ANN WALSH

BRADLEY joins this dissent except for the discussion of the

Tullberg opinion at ¶¶105-107.

45
See State v. Sutton, 2012 WI 23, ¶46, 339 Wis. 2d 27, 810
N.W.2d 210 (2012) (remanding to the court of appeals because
"the court of appeals did not have a proper view of the law").

19
 No. 2011AP1673-CRNM.ssa

1