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Court rules conviction is second, not first, OWI

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Ellsworth, 54011
Ellsworth Wisconsin 126 S. Chestnut St. 54011

A drunk driving conviction in his home state will be counted, and a Wisconsin appeals court upheld a Pierce County court's finding that a Minnesota man is guilty of operating while intoxicated, second offense.

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The decision was filed Oct. 3 by Wisconsin's District III Court of Appeals.

Matthew G. Devinny, 25, Inver Grove Heights, Minn., was charged with drunk driving after being arrested by River Falls police Nov. 20, 2005.

In January of this year, Devinny filed a motion to attack a five-year-old drunk driving conviction in Minnesota. Pierce County Judge Robert Wing denied that motion.

On March 29, Devinny was found guilty of operating while intoxicated and was sentenced as a second-time OWI offender. He was fined $894.

In asking the Wisconsin judge to throw out the Minnesota conviction, Devinny claimed a Minnesota public defender did not represent him and never "discussed...the dangers or disadvantages of representation."

According to the appeals court ruling, a defendant who faces an enhanced sentenced because of a prior conviction may "collaterally attack" that earlier conviction if he was denied the right to an attorney at the first proceedings.

But, said the court, the defendant must "point to facts that demonstrate that he or she 'did not know or understand the information which should have been provided'..."

According to the record, Devinny met with Minnesota public defender William F. Young before a November 2000 hearing. In an affidavit, Devinny said Young explained the rights Devinny would give up by pleading guilty.

Young helped Devinny fill out a plea form, indicating he waived his right to counsel. In court, the Minnesota judge asked Devinny if he had met with the public defender and saw a video about his constitutional rights. Devinny said he had. He also said he had no questions about his rights or the charges.

"While Devinny's affidavit claims the public defender did not explain to him 'the dangers or disadvantages of representation,' he fails to claim he was actually ignorant of these facts," ruled the appeals court.

The higher court concluded Devinny had failed to make his case and upheld Judge Wing's judgment.

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