State v. Gracia

2013 WI 15, 826 N.W.2d 87, 345 Wis. 2d 488

• Court: Wisconsin Supreme Court
• Decided: January 31, 2013
• Docket: No. 2011AP813-CR & 2011AP814
• Status: Published

Opinions

N. PATRICK CROOKS, J.

¶ 1. This is a review of an unpublished decision of the court of appeals¹ that affirmed the circuit court. This case involves two distinct issues. The first issue is whether a warrantless search of Gracia's bedroom² was a valid exercise of the community caretaker exception to the warrant requirement under the federal and state constitutions.³ The second issue is factually unrelated and involves whether Gracia can successfully collaterally attack his second operating a motor vehicle under the influence (OWI)⁴ from 1998 on the grounds that he did not validly waive his right to counsel.

¶ 2. Gracia moved to suppress evidence obtained during and resulting from the search on the grounds that the police had illegally entered his bedroom despite his objection and without a warrant. The circuit court for Winnebago County, the Honorable Barbara H. Key presiding, denied Gracia's motion to suppress, holding that the police officers were exercising their community caretaker function when they entered Gracia's bedroom after tracking him from a single-car accident, and their actions were constitutionally permitted. Gracia also challenged a prior conviction, claiming that he had not validly waived his right to counsel in that case. The circuit court found that Gracia validly waived his right to counsel during his 1998 no contest plea hearing. Gracia subsequently pleaded no contest to operating with a prohibited alcohol content, fourth offense, in violation of Wis. Stat. § 346.63(l)(b)⁵ with an alcohol fine enhancer under § 346.65(2)(g)l. The court of appeals affirmed on both issues.

¶ 3. We hold that the circuit court properly denied Gracia's motion to suppress. The test for the community caretaker exception was recently laid out by this court in State v. Pinkard and looks at whether a search or seizure took place, whether the police exercised a bona fide community caretaker function, and whether the intrusion was reasonable based on the attendant circumstances. State v. Pinkard, 2010 WI 81, ¶ 29, 327 Wis. 2d 346, 785 N.W.2d 592. Here, the police were following up on a major single-vehicle accident which left the front end of the car driven by Gracia extensively damaged and a traffic pole completely knocked down. They validly entered the home on consent of Gracia's brother and after his brother broke open Gracia's bedroom door, without any prompting by the police, reasonably exercised their community caretaker function when they crossed the threshold into Gracia's bedroom. The police acted on their concern that Gracia might have sustained a significant injury in the auto accident. Given these facts, the warrantless search was reasonable under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Wisconsin Constitution.

¶ 4. We further hold that despite a technically deficient plea colloquy, Gracia knowingly, intelligently, and voluntarily waived his right to counsel before he pleaded no contest to his second OWI in 1998, a violation of Wis. Stat. § 346.63(l)(b) (1997-98), operating with a prohibited alcohol concentration.⁶ He understood the difficulties and disadvantages of self-representation. He had familiarity with the role of lawyers, and he made a cost-benefit decision not to hire an attorney because he was guilty and the district attorney offered him the minimum penalty. The circuit court properly denied the collateral attack of his earlier conviction and thus considered the 1998 conviction in determining that Gracia had three prior relevant convictions.

I. BACKGROUND

¶ 5. This case presents two distinct issues for this court to decide. Each issue has unrelated facts. The first issue is related to a warrantless search, and the second is a collateral attack of a prior conviction. The facts of each will be presented in turn.

¶ 6. The City of Menasha Police Department received a report of a traffic signal down that was impeding traffic. The signal, located on a median, had been completely ripped from the ground, and was lying half in the median and half in the road. It appeared from the scene that a vehicle had struck the signal and then left. At the scene, the police found a mangled license plate lying next to the damaged traffic signal; the license plate number 228JJD was listed as belonging to a 1999 Buick Regal LS.

¶ 7. After some investigation,⁷ the police arrived at a trailer home where Juan G. Gracia ("Gracia") lived, and they found the Buick Regal in the driveway. The Buick had clearly been in an accident. Its front license plate was missing. There was significant front-end damage with pieces of the front bumper missing. There were yellow markings on the side of the door panel. The front end had been caved in, as if the car had struck a pole, and a pair of eyeglasses and a hat sat on the front passenger seat. According to the officers, the damage seemed fresh.

¶ 8. When the police officers arrived at the trailer home, the lights were off inside, and no one answered the door. As the police were about to leave, a pickup truck arrived driven by Jaime Gracia, who told police he was Gracia's brother and lived at that residence with Gracia. Jaime Gracia stated that his brother should be inside. The officers asked if they could come inside, explaining that they were worried about Gracia's potential injuries and that they needed to make sure he was okay. Jaime Gracia asked them to wait outside and went into the house by himself. After several minutes, he allowed the officers inside and told them that Gracia had locked himself in his bedroom. Jaime Gracia brought the officers to Gracia's bedroom door. Inside his room, Gracia yelled in Spanish and English, telling them to "go away." Both the officers and Jaime Gracia tried the door handle. One of the officers, Officer Lenss, testified that Jaime Gracia then "put his shoulder through the door and opened the bedroom door." Once the door was open, the officers entered the room and made contact with Gracia, who was lying on the bed. The officers observed Gracia's bloodshot eyes, slurred speech, and the strong odor of intoxicants emanating from Gracia. Gracia eventually admitted to driving the Buick. The officers then arrested Gracia for operating a motor vehicle while intoxicated.

¶ 9. Gracia moved to suppress the evidence of his intoxication obtained after the police entered his bedroom. At the suppression hearing, the State argued that the community caretaker exception to the warrant requirement applied. The circuit court agreed and denied the suppression motion.⁸ Gracia pleaded no contest to operating a motor vehicle with a prohibited alcohol content, fourth offense, in violation of Wis. Stat. § 346.63(l)(b) and then appealed. The court of appeals affirmed the circuit court's denial of the suppression motion. On appeal, Gracia also collaterally attacked a prior conviction as the result of an invalid waiver of the right to counsel. Additional relevant facts will be incorporated throughout the opinion.

II. STANDARD OF REVIEW

¶ 10. This court reviews motions to suppress by examining the constitutional challenge to the search. "Whether police conduct has violated the constitutional guarantees against unreasonable searches and seizures is a question of constitutional fact." State v. St. Martin, 2011 WI 44, ¶ 16, 334 Wis. 2d 290, 800 N.W.2d 858 (citations omitted). We defer to the circuit court's findings of facts while "independently applying] those historical facts to the constitutional standard." Id.

¶ 11. We review de novo "[w]hether a defendant knowingly, intelligently, and voluntarily waived his Sixth Amendment right to counsel." State v. Ernst, 2005 WI 107, ¶ 10, 283 Wis. 2d 300, 699 N.W.2d 92. In that review, we apply constitutional principles to the facts of the case. State v. Klessig, 211 Wis. 2d 194, 204, 564 N.W.2d 716 (1997).

III. ANALYSIS

¶ 12. First we determine if the police exercised a valid community caretaker function; if they did not, and no other exception applied, the warrantless search would violate both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Wisconsin Constitution. Second we look at whether Gracia can collaterally attack his 1998 conviction for second-offense OWI on the grounds that he did not knowingly, intelligently, and voluntarily waive his right to counsel because he was not aware of the difficulties and disadvantages of self-representation.⁹

A. Police Search and the Community Caretaker Function

¶ 13. There are two searches in this case — the entry of the trailer and the entry of the bedroom. Because Jaime Gracia consented to the police entry to the trailer and Gracia does not object to that, we look only at the search of the bedroom.¹⁰ Gracia argues that the search of his bedroom was not a valid exercise of the police's community caretaker function. The State asks this court to affirm the circuit court's finding that the community caretaker function was validly exercised in this situation.

¶ 14. The community caretaker exception is analyzed in the same manner under both the state and federal constitutions. State v. Kramer, 2009 WI 14, 315 Wis. 2d 414, ¶ 18, 315 Wis. 2d 414, 759 N.W.2d 598; Pinkard, 327 Wis. 2d 346, ¶ 14. This court looks at "the totality of the circumstances as they existed at the time of the police conduct." Kramer, 315 Wis. 2d 414, ¶ 30.

¶ 15. This court recently interpreted the community caretaker function of police in Pinkard, 327 Wis. 2d 346. That case laid out a three-step test, with four relevant factors in deciding the third step, placing the burden of proof on the State. Id., ¶ 29. The steps are as follows:

(1) [WJhether a search or seizure within the meaning of the Fourth Amendment has occurred; (2) if so, whether the police were exercising a bona fide community caretaker function; and (3) if so, whether the public interest outweighs the intrusion upon the privacy of the individual such that the community caretaker function was reasonably exercised within the context of a home.

Id., ¶ 29. In examining the third step, "we balance the public interest or need that is furthered by the officers' conduct against the degree and nature of the intrusion on the citizen's constitutional interest." Id., ¶ 41. The four factors considered in this balancing test are as follows:

(1) [T]he degree of the public interest and the exigency of the situation; (2) the attendant circumstances surrounding the search, including time, location, the degree of overt authority and force displayed; (3) whether an automobile is involved; and (4) the availability, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished.

Id., ¶ 42 (citations omitted).

¶ 16. The parties do not dispute that the entry into the bedroom constituted a search within the meaning of the Fourth Amendment. The parties disagree on the second and third steps of the community caretaker test.

¶ 17. The second step requires determining whether the officers had an objectively reasonable basis to believe Gracia was hurt and in need of assistance, so that they were exercising a bona fide community caretaker function. Pinkard, 327 Wis. 2d 346, ¶ 29. To make that determination, we look at the totality of the circumstances at the time of the conduct. Id., ¶ 31.

¶ 18. Gracia argues that the police did not have an objectively reasonable basis to believe Gracia needed assistance. Gracia cites Cady v. Dombrowski, 413 U.S. 433 (1973), reviewing a writ of habeas corpus from a conviction upheld in State v. Dombrowski, 44 Wis. 2d 486, 171 N.W.2d 349 (1969), for the proposition that for police conduct to be a bona fide community caretaker function it must be "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady, 413 U.S. at 441. Gracia acknowledges that in Kramer, 315 Wis. 2d 414, we interpreted the "totally divorced" language in Cady as requiring only an objectively reasonable basis, but Gracia argues that the subjective intent of police that included a desire to, in part, investigate the reason for the crash, cuts against the reasonableness of the officers' belief that Gracia was hurt. See Id., ¶ 31.

¶ 19. As we explained in Kramer, "in a community caretaker context, when under the totality of the circumstances an objectively reasonable basis for the community caretaker function is shown, that determination is not negated by the officer's subjective law enforcement concerns." Id., ¶ 30. Kramer described the nature of police work as "multifaceted" and explained that "the officer may have law enforcement concerns, even when the officer has an objectively reasonable basis for performing a community caretaker function." Id., ¶ 32. Furthermore, Kramer underscored the perverse nature of not allowing police to have any investigatory purpose while carrying out their community caretaker function:

[T]o interpret the "totally divorced" language in Cady to mean that an officer could not engage in a community caretaker function if he or she had any law enforcement concerns would, for practical purposes, preclude police officers from engaging in any community caretaker functions at all. This result is neither sensible nor desirable.

Id., ¶ 34. In light of "the multifaceted nature of police work," in the totality of the circumstances, the officers' subjective intent does not invalidate an otherwise reasonable exercise of the community caretaker function.¹¹

¶ 20. Gracia argues that the officers did not have an objectively reasonable basis to believe he was hurt. He thinks that this case is more like State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242, 793 N.W.2d 505, than State v. Pinkard because the only evidence the officers used to determine Gracia might have been hurt was a damaged car. In Ultsch, the police investigated a traffic accident where a driver had smashed into a brick wall and fled the scene in the vehicle. 331 Wis. 2d 242, ¶ 2. The police found the damaged car at the end of a long driveway. Id., ¶ 2. When the police saw someone leaving the house who turned out to be Ultsch's boyfriend, they did not express any concern about the driver's safety. See id., ¶ 3. The police eventually went to the house, entered the unlocked front door, and found their way to the driver's bedroom where she was sleeping. Id., ¶ 4. They transported her to the sheriffs department where they performed both field sobriety and chemical breath tests, after which they arrested her. Id., ¶ 5. The circuit court denied her motion to suppress evidence on the grounds that the police were exercising a bona fide community caretaker function. Id., ¶¶ 6-7. The court of appeals disagreed, holding that it did not believe that the police had "an objectively reasonable basis to believe Ultsch was in need of assistance." Id., ¶¶ 21, 30 (citations omitted).

¶ 21. Although some of the facts here appear similar to those in Ultsch, the officers in this case had an objectively reasonable basis to believe Gracia needed assistance. First, there was more damage to Gracia's vehicle than there was to Ultsch's. In Ultsch, the damage was confined to the left front fender and was described by the court of appeals as "limited damage." Id., ¶¶ 19, 28. Here, not only was a traffic signal completely knocked down, but the front end of the vehicle was essentially caved in, pieces of the bumper were left at the scene, and the front license plate was entirely ripped off. Second, the police consistently stated their concern for Gracia in this case, whereas in Ultsch, the police did not even tell Ultsch's boyfriend about their suspicion that Ultsch might be injured and in need of assistance. Although it is only one factor to be taken into consideration in judging the objective beliefs of police, the subjective intent of the officers is relevant. In this situation, the police immediately told Gracia's brother about their concern for Gracia's safety.

¶ 22. There were other facts supporting an objectively reasonable view that Gracia was hurt. As discussed above, the damage at the scene of the accident and to the car observed at Gracia's house was extensive. In addition, Gracia's brother appeared concerned about Gracia's safety. After going into the house without police, he returned to the front door and allowed the police inside the house, and he subsequently broke open the door to Gracia's bedroom. The brother's actions provide further support that there was a genuine belief that Gracia might be in need of assistance. For all of these reasons, the police were exercising a bona fide community caretaker function.

¶ 23. Even if the police have a bona fide purpose, the third step of the analysis requires that the community caretaker function be reasonably exercised by the officers. Pinkard, 327 Wis. 2d 346, ¶ 29. This determination is made by "balancing a public interest or need that is furthered by the officer's conduct against the degree of and nature of the restriction upon the liberty interest of the citizen," Kramer, 315 Wis. 2d 414, ¶ 40, and the four factors discussed earlier guide the determination. None of the factors is, by itself, dispositive. See generally, id.

¶ 24. In Pinkard the community caretaker function was reasonably exercised by the officers because the public interest in the search outweighed Pinkard's privacy interests. In Pinkard, the police got an anonymous tip that there were two people sleeping near what appeared to be illegal drugs. Pinkard, 327 Wis. 2d 346, ¶ 2. The police went to investigate the tip and confirmed its accuracy. Id., ¶ 3. After announcing their presence with no reaction from the occupants, who appeared to be sleeping, the police entered the house. Id., ¶ 4. Once inside, police found a digital scale and drugs, along with a firearm. Id., ¶ 5. Pinkard moved to suppress the evidence because there was no warrant. Id., ¶ 6. The circuit court found that the police conduct was a valid exercise of the community caretaker function, and we agreed. Id., ¶¶ 7,11. We will now examine the four factors in regard to Gracia's situation.

¶ 25. The first factor in the balancing test is the degree of the public interest and the exigency of the situation. Id., ¶ 42. The public has a substantial interest in ensuring the safety of drivers in serious traffic accidents. See State v. Ziedonis, 2005 WI App 249, ¶ 29, 287 Wis. 2d 831, 707 N.W.2d 565 (finding a significant public interest in a situation where "the officers did not know the physical condition of the person and reasonably concluded that the situation was an emergency.") There was also some exigency in this situation. The police promptly began investigating the accident and were at Gracia's home within about 45 minutes of the accident being reported. If Gracia had been seriously injured in the accident, quick medical assistance would have been necessary.

¶ 26. The second factor looks at the circumstances surrounding the search, including the "time, location, the degree of overt authority and force displayed." Pinkard, 327 Wis. 2d 346, ¶ 42. This factor also weighs in favor of the reasonable exercise of the community caretaker function in this case. Although the search took place in a private place, the privacy interests infringed upon were minimized by the facts of this situation. The police displayed significantly less overt authority here than in Ultsch. The police entered Gracia's home on the consent of his brother, Jaime Gracia, and did not enter Gracia's bedroom to check on him until his brother broke open Gracia's door.¹² The police were escorted by a seemingly concerned co-tenant the entire time they were in Gracia's home. In contrast, the police in Ultsch entered the house without permission and then walked around unattended until they found Ultsch sleeping in bed. 331 Wis. 2d 242, ¶ 4. Furthermore, here the officers did not use any force throughout the entire interaction. Both the brother and the police tried the handle of the bedroom door, but when the door did not open, the police made no further attempts to gain entry. The only person to use any force in this situation was Gracia's brother, but since there was no evidence that the police encouraged that behavior, his actions should not be imputed to the police. No one argues that the officers brandished their weapons or threatened anyone involved. Essentially, the officers found themselves in front of an open door and walked across the threshold to check on someone they thought was injured from a serious car accident, which was not unreasonable.

¶ 27. The third factor is irrelevant because the search was not of an automobile, so we look next at the fourth factor: the possible alternatives and their effectiveness to the actual intrusion by police. See Pinkard, 327 Wis. 2d 346, ¶ 42. Here, one possible alternative would have been to have Gracia's brother evaluate and monitor his safety. While this appears sensible, the effectiveness of such an alternative is questionable in this situation. Gracia's brother was very excited by this situation — so excited that he forcibly broke open Gracia's bedroom door. It is unclear that he would have been able to safely administer care to an injured person or to get the help needed. Additionally, police officers are trained to deal with situations like this, they were already there, and they believed that Gracia might be injured; therefore, although an alternative existed, it did not itself make this an unreasonable exercise of the community caretaker doctrine.

¶ 28. Gracia emphasizes the fact that while inside his bedroom, he yelled for the persons outside the door to "go away." Gracia believes that this shows that the officers' community caretaker purpose was not bona fide, and also that it made what the police did unreasonable. Therefore, he says, the second and third steps of the community caretaker exception analysis are not satisfied. While the fact that Gracia told the police to go away does make this case distinguishable from Pinkard (where the occupants of the house were unresponsive to the police yelling), it does not necessarily lead to the conclusion that the police could not exercise a community caretaker function under such circumstances. Gracia's responsiveness is not dispositive. In Pinkard, the only reason the police had for thinking that the people needed assistance was the fact that they were sleeping next to drugs. See id., ¶ 39. Here, as noted earlier, there was a serious car accident that the police were looking into. Pinkard stressed the importance of the occupants' unresponsiveness because in that case, if the people were alert, there would have been no reason at all to think they would need any assistance. Here, Gracia could still have been seriously hurt even though he wanted police to go away.¹³

¶ 29. The facts of this case, when balanced in light of the totality of the circumstances, lead us to the conclusion that this was a reasonable exercise of the community caretaker function. The police were in the home by consent with legitimate concern for Gracia. Although Gracia yelled through the door for them to "go away," Gracia's brother broke open the bedroom door. The police crossed the threshold and immediately noticed Gracia's intoxication. This is somewhat akin to a plain view situation: the person the police were concerned about was right in front of them, and they talked to him.¹⁴ This was a very different situation than if the police themselves had broken open the bedroom door to check on someone they thought was injured.

¶ 30. Under the totality of the circumstances, the community caretaker exception to the warrant requirement resulted in permissible police conduct. The community caretaker function was reasonably exercised by the police officers because the public interest in the search outweighed Gracia's privacy interests.

B. Collateral Attack of 1998 Conviction

¶ 31. Due to the fact that the charge was fourth-offense OWI, Gracia also collaterally attacks his 1998 no contest plea on the grounds that he did not knowingly, intelligently, and voluntarily waive his right to counsel.

¶ 32. At the July 6, 1998, plea hearing in the circuit court for Outagamie County, the Honorable Michael W Gage presiding, Gracia pleaded no contest to second-offense operating with a prohibited alcohol content. At the plea hearing, the ordinary question-answer colloquy found in Wis JI-Criminal SM-30 was not used. Instead, the judge asked questions of Gracia and learned the following facts: Gracia was 23 years old at the time, had graduated from high school, had attended some college, had been working the same job for three years, and was earning $11.50 per hour. The judge also talked to Gracia about his rights, explaining that Gracia had a right to an attorney. He asked if Gracia had decided to proceed pro se, explaining that Gracia may earn enough money to hire an attorney. He further explained that Gracia may qualify for appointment of an attorney, and if he did not qualify, Gracia could still get an appointed lawyer but would need to reimburse the court for the costs of the appointed attorney. The judge also confirmed that Gracia had not looked into obtaining counsel.

¶ 33. On August 3, 2010, the circuit court held a collateral-attack hearing to determine if Gracia knowingly, intelligently, and voluntarily waived his Sixth Amendment right to counsel before he pleaded no contest to his second OWI in 1998. Both Gracia and the State agree that Gracia made a prima facie showing that the 1998 waiver was invalid because the judge accepting the waiver of counsel did not use a colloquy which included an explanation of the ways that an attorney might be helpful to him. In other words, there was not a significant explanation of the difficulties and disadvantages of self-representation. At the collateral attack hearing, Gracia stated that he did not hire an attorney in 1998 because he was guilty and the State had recommended the minimum. Gracia also asserted that he did not know during the 1998 hearing that a lawyer could look into defenses other than innocence. Gracia admitted that in 1998 he understood that a lawyer could "go to court" for him and that he had some familiarity with lawyers through television. He was also aware of the O.J. Simpson trial.

¶ 34. At the hearing, the circuit court found that Gracia's testimony was "forthright to an extent. . . [ajlthough somewhat self-serving when indicating that he had no idea what an attorney could do." The court noted that Gracia had finished high school and did not have education deficiencies. The circuit court stated:

I'm going to find in this case that he made the conscious decision. He knew basically that a lawyer would be able to possibly help him out but he decided not to because he just didn't think that in the end result - it was more of a cost benefit analysis and that's why he didn't consider talking to the lawyer.

Because of these findings, the circuit court held that Gracia knowingly, intelligently, and voluntarily waived his right to an attorney in his 1998 plea hearing; therefore, his collateral attack to his second OWI conviction failed, making the charge that he faced a fourth offense. Gracia appealed. The court of appeals affirmed.

¶ 35. This court reviews de novo whether a defendant validly waived his or her right to counsel although we benefit from the analysis of the circuit court and the court of appeals. Ernst, 283 Wis. 2d 300, ¶ 10. This court illustrated the requirements for a valid waiver of counsel in Klessig, 211 Wis. 2d 194.

To prove such a valid waiver of counsel, the circuit court must conduct a colloquy designed to ensure that the defendant: (1) made a deliberate choice to proceed without counsel, (2) was aware of the difficulties and disadvantages of self-representation, (3) was aware of the seriousness of the charge or charges against him, and (4) was aware of the general range of penalties that could have been imposed on him.

Id. at 206. A defendant makes a prima facie showing by showing a violation of these colloquy requirements and can then attempt to collaterally attack that prior conviction. Ernst, 283 Wis. 2d 300, ¶ 25. After the prima facie case is made, the State must then prove by clear and convincing evidence that the plea was made knowingly, intelligently, and voluntarily. Id., ¶ 27.

¶ 36. As noted above, the State and Gracia agree that he made a prima facie showing because the judge accepting his waiver did not sufficiently cover the requirements in the colloquy. Gracia specifically challenges whether he was made aware of "the difficulties and disadvantages of self-representation," and therefore did not knowingly, intelligently, and voluntarily waive his right to counsel in 1998. Gracia cites Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980), for the proposition that to satisfy that requirement he must "have an awareness of the technical rules governing the proceedings and an attorney's role during them." Petitioner's Reply Brief at 9. Pickens states only that the defendant must have "an awareness that there are technical rules . . . and that presenting a defense is not a simple matter of telling one's story." Id. at 563 (emphasis added). We are persuaded by the court of appeals' recent interpretation of Pickens that the law requires that the defendant "understand the role counsel could play in the proceeding," not that the defendant must understand every possible defense. State v. Schwandt, No. 2011AP2301-CR, unpublished slip op., ¶ 14 (Wis. Ct. App. May 16, 2012).

¶ 37. The 1998 and 2010 hearings demonstrate that Gracia knowingly, intelligently, and voluntarily waived his right to counsel in 1998. At the 2010 hearing, Gracia explained that he did not hire an attorney in 1998 because he was guilty and the recommendation was for the minimum. This demonstrates a calculated decision on Gracia's part not to spend the money to hire an attorney in such a situation. The judge in 2010 found that Gracia's testimony was "somewhat self-serving when indicating that he had no idea what an attorney could do," pointing to the fact that Gracia had no educational deficiencies and he had completed high school and attended college briefly. Gracia testified 12 years after he initially waived his right to counsel, he had additional convictions in the intervening years, and at that point he faced an enhanced penalty for his 1998 conviction. We agree with the circuit court's determination that when he waived his right to counsel Gracia made a cost-benefit decision and knew what he was giving up.

¶ 38. Gracia also briefly raises the point that the court in 1998 did not make a finding of competency to proceed pro se. As the court of appeals noted, he does not argue that he was not competent to proceed pro se. There is nothing in the record that would support such a determination. Gracia graduated from high school and attended college for a brief period of time studying engineering. He does not appear to have any problems that would cause him to lack competence to proceed pro se. Klessig, 211 Wis. 2d at 212.

¶ 39. Because he knowingly, intelligently, and voluntarily waived his right to counsel, his waiver was valid, and the prior conviction stands.

IV CONCLUSION

¶ 40. We hold that the circuit court properly denied Gracia's motion to suppress. The test for the community caretaker exception was recently laid out by this court in Pinkard and looks at whether a search or seizure took place, whether the police exercised a bona fide community caretaker function, and whether the intrusion was reasonable based on the attendant circumstances. Pinkard, 327 Wis. 2d 346, ¶ 29. Here, the police were following up on a major single-vehicle accident which left the front end of the car driven by Gracia extensively damaged and a traffic pole completely knocked down. They validly entered the home on consent of Gracia's brother and after his brother broke open Gracia's bedroom door, without any prompting by the police, reasonably exercised their community caretaker function when they crossed the threshold into Gracia's bedroom. The police acted on their concern that Gracia might have sustained a significant injury in the auto accident. Given these facts, the warrantless search was reasonable under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Wisconsin Constitution.

¶ 41. We further hold that despite a technically deficient plea colloquy, Gracia knowingly, intelligently, and voluntarily waived his right to counsel before he pleaded no contest to his second OWI in 1998, a violation of Wis. Stat. § 346.63(l)(b) (1997-98), operating with a prohibited alcohol concentration. He understood the difficulties and disadvantages of self-representation. He had familiarity with the role of lawyers, and he made a cost-benefit decision not to hire an attorney because he was guilty and the district attorney offered him the minimum penalty. The circuit court properly denied the collateral attack of his earlier conviction and thus considered the 1998 conviction in determining that Gracia had three prior relevant convictions.

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

1 State v. Gracia, No. 2011AP813-CR, City of Menasha v. Gracia, No. 2011AP814, unpublished slip op. (Wis. Ct. App. Dec. 28, 2011).

2 The parties do not dispute that a search occurred for purposes of the Fourth Amendment when the officers entered Gracia's bedroom and talked to him, which led to their discovery that Gracia was intoxicated.

3 The circuit court also found that Gracia unreasonably refused to submit to a test for intoxication. The refusal and the appeal from the judgment of conviction for fourth-offense OWI have been consolidated.

4 Wis. Stat. § 346.63, entitled "Operating under influence of intoxicant or other drug," prohibits drivers from both operating a motor vehicle under the influence and operating a motor vehicle with a prohibited alcohol content. See Wis. Stat. § 346.63 (2009-10). To avoid unnecessary confusion, this opinion will usually refer to violations of Wis. Stat. § 346.63 as "OWI" unless specifically noted.

5 All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.

6 Wisconsin has a progressive penalty system for OWIs in which prior convictions are used to determine the appropriate penalties. See Wis. Stat. § 346.65. The penalty structure for these convictions changes depending on the number of prior similar convictions the driver has. Wisconsin Stat. § 343.307 enumerates relevant prior conduct for penalties under Wis. Stat. § 346.65.

7 The license plate found at the scene was registered to Jesus Gracia-Valenzuela. The officers went to the address connected to the license plate and did not find the vehicle. They also checked another address for the car's registered owner on Jefferson Street. The police then learned from the people at that address that the Gracias no longer lived there. The police checked another address. Then a family member of the Gracias told police that Juan Gracia usually drove that vehicle and gave the police his address on Wendy Way.

8 Gracia also refused to take a test for intoxication. The circuit court held a joint suppression and refusal hearing. The only grounds Gracia alleges for the refusal is the constitutionality of the search. The refusal will not be dealt with separately in this opinion because in this situation, it rises and falls with the community caretaker exception analysis. Because we find the entry a valid exercise of the community caretaker function, the refusal was unreasonable.

9 If a collateral attack is successful, the prior conviction cannot be used to enhance the penalties for the current conviction. See State v. Peters, 2001 WI 74, ¶ 22, 244 Wis. 2d 470, 628 N.W.2d 797.

10 The consensual entry into the trailer home is more like Illinois v. Rodriguez, 497 U.S. 177 (1990), than Georgia v. Randolph, 547 U.S. 103 (2006), because when consent was being given to enter the home, no one objected. The United States Supreme Court has allowed warrantless entry when police obtain voluntary consent of an occupant who shares authority over the common area with a co-occupant even when later the co-occupant objects to the use of evidence obtained. See Illinois v. Rodriguez, 497 U.S. 177. In Georgia v. Randolph, 547 U.S. 103, the United States Supreme Court held that "a physically present co-occupant's stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him." Id. at 106. See also State v. St. Martin, 2011 WI 44, ¶ 6, 344 Wis. 2d 290, 800 N.W.2d 858 (holding that "the rule stated in Randolph does not apply ... because we conclude that St. Martin was not physically present at what the United States Supreme Court called the 'threshold colloquy.'")

11 The subjective intent cuts both ways here. As explained above, the officers continually showed their concern for Gracia by explaining to Gracia's brother that Gracia might be hurt. This continued concern could reasonably be viewed as demonstrating the subjective belief of the police that Gracia was hurt and needing assistance.

12 There is nothing to indicate that the police did anything to encourage Jaime Gracia to break open the door. In fact, officer Matthew Lenss testified at a hearing that he did not ask Jaime to break open the door, stating, "I actually remember looking at Officer Swenson in disbelief thinking to myself, wow, he just put his shoulder through the door. I never asked him to do that."

13 In a footnote in his brief, Gracia states, "[e]ven if he had been injured, Mr. Gracia would have a constitutional right to decline unwanted medical assistance," citing Cruzan by Cruzan v. Dir. Mo. Dep't of Health, 497 U.S. 261, 278 (1990) and Lenz v. L.E. Phillips Career Dev. Ctr., 167 Wis. 2d 53, 63, 482 N.W.2d 60 (1992). Petitioner's Brief at 17 n.l. This argument is undeveloped, and we do not usually address undeveloped arguments. See Saddle Ridge Corp. v. Board of Review for Town of Pacific, 2010 WI 47, ¶ 46 n.23, 325 Wis. 2d 29, 784 N.W.2d 527. Further, this assertion does not change our analysis of whether the police were exercising a bona fide community caretaker function and whether they reasonably exercised that function.

14 The plain view exception to the warrant requirement requires four things:

The police must have a prior justification for the intrusion which placed them in the position to observe the evidence in plain view, the evidence must be in plain view, the discovery must be inadvertent, and the item seized, in itself or in itself with facts known to the officer at the time of the seizure, provides probable cause to believe there is a connection between the evidence and criminal activity.

State v. McGovern, 77 Wis. 2d 203, 210, 252 N.W.2d 365 (1977). The situation the police found themselves in after Jaime Gracia broke open the door has many of the same characteristics of a plain view discovery.