State v. Eric Allan Erickson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 31, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2021AP1826-CR Cir. Ct. No. 2021CT10

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

ERIC ALLAN ERICKSON,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Green County:
FAUN MARIE PHILLIPSON, Judge. Affirmed.

¶1 FITZPATRICK, J.1 Eric Erickson was charged in the Green County
Circuit Court with operating a motor vehicle under the influence of an intoxicant as
a third offense and operating a motor vehicle with a prohibited alcohol concentration
as a third offense. The complaint alleges that Erickson had two valid prior

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This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2021AP1826-CR

convictions for operating while under the influence of an intoxicant, the first in 2002
and the second conviction in 2006. Erickson filed a motion collaterally attacking
the 2006 conviction, arguing that the 2006 conviction was not valid (and should not
be counted as a prior conviction) because the circuit court in that case did not ensure
that Erickson made a knowing, intelligent, and voluntary waiver of his right to
counsel. See State v. Klessig, 211 Wis. 2d 194, 206-07, 564 N.W.2d 716 (1997);
State v. Ernst, 2005 WI 107, ¶¶18, 25-27, 283 Wis. 2d 300, 699 N.W.2d 92. The
circuit court determined in the present case that Erickson made a prima facie claim
that the 2006 OWI conviction was invalid, and the circuit court at a later hearing
ruled that Erickson’s motion must be granted based on factual findings of the court
made at that evidentiary hearing. The State appeals.

¶2 The State filed a brief-in-chief in this appeal. Erickson filed a
responsive brief that establishes the following: facts in the record relied on by the
State in its brief-in-chief are irrelevant, and the State ignores facts that are
dispositive to issues before this court. In addition, the responsive brief from
Erickson has citations to authorities, on issues before me in this appeal, that squarely
rebut authorities relied on by the State in its brief-in-chief. The records of the clerk
of this court show that the State has not filed a reply brief in this appeal. Thus, by
failing to reply to Erickson’s arguments, the State concedes the forfeiture of issues
raised by the State in this appeal. See United Coop. v. Frontier FS Coop., 2007 WI
App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to respond in
reply brief to arguments made in responsive brief may be taken as concessions).

¶3 By failing to file a reply brief, the State has attempted, in effect, to put
any judge of this court assigned to this appeal in the position of drafting a reply brief
for the State. That I cannot and will not do. See Industrial Risk Insurers v.

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No. 2021AP1826-CR

American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d
82 (a judge of this court may not act as an advocate for a litigant).

¶4 For these reasons, the order of the circuit court is affirmed.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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