State v. Neill

• Decision Date: 14 February 2020
• Docket Number: No. 2018AP75-CR,2018AP75-CR
• Citation: 2020 WI 15,390 Wis.2d 248,938 N.W.2d 521
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Charles L. NEILL, IV, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

390 Wis.2d 248

938 N.W.2d 521

2020 WI 15

STATE of Wisconsin, Plaintiff-Respondent,

v.Charles L. NEILL, IV, Defendant-Appellant-Petitioner.

No. 2018AP75-CR

Supreme Court of Wisconsin.

Oral Argument: October 14, 2019

Opinion Filed: February 14, 2020

For the plaintiff-respondent, there was a brief filed by Michael C. Sanders, assistant attorney general, with whom on the brief was Joshua L. Kaul attorney general there was an oral argument by Michael C. Sanders.

For the defendant-appellant-petitioner, there were briefs filed by Pamela Moorshead, assistant state public defender. There was an oral argument by Pamela Moorshead.

REBECCA GRASSL BRADLEY, J.

¶1 Charles L. Neill, IV seeks review of the court of appeals decision¹ affirming the judgment and order upholding his sentence for third-offense OWI.² This appeal involves only the $4,800 fine Neill was ordered to pay. The issue presented requires the interpretation of the penalty enhancers in Wisconsin's OWI statutes. Specifically, we consider how the penalty enhancers' provisions requiring "doubling" and "quadrupling" of the fine for a third-offense OWI should be determined when multiple penalty enhancers apply. Neill faced two penalty enhancers: (1) having a minor passenger in his car, which requires doubling of the fine, and (2) driving with a high blood alcohol concentration, which requires quadrupling of his fine.

¶2 The court of appeals decided that the first penalty enhancer changes the "applicable minimum" fine Wis. Stat. § 346.65(2)(am) 3 sets for third-offense OWI, and as a result, when applying the second penalty enhancer, a court must use this already-enhanced applicable minimum instead of the specific applicable minimum for third-offense OWI contained in § 346.65(2)(am)3.

¶3 We reject this interpretation. The statute's text requires that each penalty enhancer use the specific "applicable minimum" contained in Wis. Stat. § 346.65(2)(am) 3, which for third-offense OWI is $600. Accordingly, the court of appeals erred when it affirmed the $4,800 fine imposed by the circuit court. Because the text of § 346.65(2)(am) 3 sets the minimum applicable fine at $600, both penalty enhancers must be calculated using $600 as the applicable minimum.

¶4 Neill's first penalty enhancer for OWI with a minor passenger, Wis. Stat. § 346.65(2)(f) 2, requires "the applicable fine" be doubled. Accordingly, the circuit court should have started with $600 and multiplied it by two for an enhanced fine of $1,200. Neill's second penalty enhancer for OWI with a high BAC, Wis. Stat. § 346.65(2)(g) 3, requires "the applicable fine" in § 346.65(2)(am) 3 be quadrupled. Consequently, the circuit court should have started with $600 and multiplied it by four for an enhanced fine of $2,400. These two fines total $3,600, not $4,800. We reverse the decision of the court of appeals and remand with directions to amend the judgment to require Neill to pay a fine of $3,600.

I. BACKGROUND

¶5 In July 2016, Neill was arrested for OWI. At the time, he had his one-year-old child in the car and had a blood alcohol concentration of .353 percent. The State charged Neill with third-offense OWI, based on his prior convictions from 2005 and 2008. The Complaint and the Information listed the charge as: third-offense OWI "with a minor child in the vehicle." These documents then listed the .353 percent blood alcohol concentration under "penalty enhancer."

¶6 Neill pled guilty to third-offense OWI and the circuit court imposed and stayed a sentence of 15 months initial confinement followed by 9 months of extended supervision. The circuit court placed Neill on probation for 3 years with 6 months jail time as a condition of probation. The circuit court imposed a fine of $4,800.

¶7 During sentencing, defense counsel objected to the $4,800 fine:

[DEFENSE COUNSEL]: Your Honor ... our position is that the minimum fine would be four times the regular minimum fine of $600.

I know the State is of the position it should be multiplied by eight because of the two possible enhancers. I don't see anything in the statutes or case law that direct us whether those multipliers -- the one for having the child in the car and one for the high BAC -- should be multiplied together, if the Court's following me, so because --

THE COURT: The minimum fine is $1,200. It must be multiplied by four because of his BAC.

[DEFENSE COUNSEL]: What is the Court citing?

THE COURT: I'm looking at the complaint.

[DEFENSE COUNSEL]: And the--

THE COURT: The complaint says that the minimum fine for a third offense under 343.307(1) since January 1st, 1989 be fined not less than $1,200, nor more than $4,000.

[DEFENSE COUNSEL]: I'm--

THE COURT: ... [B]ecause the BAC -- the penalty enhancer for the BAC, he had an alcohol concentration of .25 or above, the applicable minimum and maximum fines are quadrupled, so that's why it's $4,800.

[DEFENSE COUNSEL]: ... Where I'm getting my information from is 346.65, which is the penalty section for OWIs --

THE COURT: Yep.

[DEFENSE COUNSEL]: -- (2)(3), which is penalties for third offense. The minimum fine is $600.

THE COURT: ... It's not a third offense. It's this offense.

[DEFENSE COUNSEL]: And--

THE COURT: And the minimum fine for this offense, operating while intoxicated third offense with a minor child ... in the vehicle is $1,200. And by law ... because of his BAC, it has to be quadrupled. I don't have any choice. I don't like it, but that's what the law says.

[DEFENSE COUNSEL]: And I--

THE COURT: So his fine is $4,800.

[DEFENSE COUNSEL]: Judge, I just want to make a record.

THE COURT: Go ahead.

[DEFENSE COUNSEL]: Make my objection in case Mr. Neill wants to appeal what the minimum fine is. What we have is -- is two penalty enhancers, and we don't have any direction from the statutes or case law from what I can tell that tell us whether they should both be applied together, you know, minimum fine of six hundred times two and the times four because it's -- there's no statute covering that situation.

The way we get to [$]1,200 is because of (f)(2) of that same section that doubles the minimum fine if there's a child in the car. And then we have the section on the BAC, which is (g)(3), which says that if the BAC is .25 or above the minimum fines are quadrupled. But there's nothing to say they should be multiplied together four and the times two. So our position is that since it's ambiguous, the rule of leniency means that only one of those should apply, and it should be the quadrupled.

THE COURT: I don't see any ambiguity at all. The minimum fine is $1,200 for this crime, and by law, this crime's minimum has to be quadrupled to [$]4,800. I don't like it. That's what the statute says, so the fine is $4,800.

¶8 The circuit court entered judgment imposing a fine of $4,800. In October 2017, Neill filed a postconviction motion asking the circuit court to decrease the $4,800 fine. The motion alleged the circuit court failed to use the $600 applicable minimum from the statute in assessing the fine and instead incorrectly used the $1,200 applicable minimum alleged in the Complaint. As noted, the Complaint listed the crime as "Operating a motor vehicle while intoxicated – Third Offense, with a minor child in the vehicle" and listed a single penalty enhancer for high BAC. The Complaint listed the minimum fine as $1,200. Neill's motion asserted that having a minor child in the car is a penalty enhancer—that the offense itself is OWI-third, and as a result of the misstatement in the Complaint, the circuit court incorrectly used $1,200 as the minimum fine instead of $600. Neill's postconviction motion argued that only the greater penalty enhancer should apply because the lesser penalty enhancer should be subsumed within the greater. In other words, because the doubled penalty enhancer resulted in a $1,200 fine and the quadrupled penalty enhancer resulted in a $2,400 fine, Neill argued he should have to pay only the greater of the two—$2,400.

¶9 The circuit court acknowledged that it incorrectly relied on the Complaint instead of the OWI statutes in computing the fine:

Viewing the complaint in isolation, it appears that operating a motor vehicle while intoxicated – third offense, with minor child in vehicle is a criminal offense in and of itself, but upon a review of the statutes, it becomes clear that the crime is operating a motor vehicle [while] intoxicated (3rd offense) and that "with minor in vehicle" is a penalty enhancer, which not only doubles the minimum and maximum penalties but also converts the offense from a misdemeanor to a felony. Although the State did not charge the "with minor child in vehicle" provision as a penalty enhancer, presumably for purposes of prosecuting this case in felony court, that is essentially what it is, and therefore, the complaint does not control the outcome of [the fine in] this case.

¶10 Nonetheless, the circuit court disagreed with Neill's position that the lesser fine is simply subsumed within the greater fine. The circuit court said both penalty enhancers should be applied under State v. Beasley, 2004 WI App 42, ¶14, 271 Wis. 2d 469, 678 N.W.2d 600 (recognizing multiple penalty enhancers may be applied), and refused to adopt Neill's position because doing so would give effect to only one of the penalty enhancers. Without further explanation, the circuit court found the proper fine to be $4,800.

¶11 Neill appealed the circuit court's decision to the court of appeals, which affirmed in a 2-1 decision. State v. Neill, 2019 WI App 4, 385 Wis. 2d 471, 922 N.W.2d 861. The majority of the court of appeals held that application of the first penalty enhancer "altered" the applicable minimum fine starting point. Id., ¶23. In other words, once the first penalty enhancer has been applied, a court uses the enhanced number instead of the $600 when it applies the second penalty enhancer. Because the first penalty enhancer doubled the $600 to $1,200, the court of appeals concluded the $1,200 must be used as the starting number when...