State v. Delaney

Decision Date04 March 2003
Docket NumberNo. 01-1051-CR.,01-1051-CR.
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Richard W. DELANEY, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

259 Wis.2d 77
2003 WI 9
658 N.W.2d 416

STATE of Wisconsin, Plaintiff-Respondent,
Richard W. DELANEY, Defendant-Appellant-Petitioner

No. 01-1051-CR.

Supreme Court of Wisconsin.

Oral argument October 15, 2002.

Decided March 4, 2003.

259 Wis.2d 79
For the defendant-appellant-petitioner there were briefs by Joseph R. Cincotta and Schweitzer & Cincotta LLP, Milwaukee, and oral argument by Joseph R. Cincotta.

259 Wis.2d 80
For the plaintiff-respondent the cause was argued by David J. Becker, assistant attorney general, with whom on the brief was James E. Doyle, attorney general


Petitioner Richard W. Delaney (Delaney) seeks review of an unpublished court of appeals decision, affirming his judgment of conviction and sentence for operating while intoxicated (OWI), third offense. Specifically, Delaney asks this court to determine whether Wis. Stat. § 939.62 (1999-2000)1 was properly applied to his already enhanced OWI offense under Wis. Stat. § 346.65(2)(c), based on the existence of a past non-OWI offense, so as to enhance Delaney's penalty twice for count one of his judgment of conviction. We answer in the affirmative, and conclude that a defendant convicted of the crime of second—or subsequent—offense OWI, as Delaney has been, is subject to the penalty enhancements provided for in both §§ 346.65(2) and 939.62, so long as the application of each enhancer is based on a separate and distinct prior conviction or convictions.


¶ 2. The facts are undisputed. On November 19, 1999, Officer Kenneth Clelland was attempting to locate a brown station wagon with a certain license plate that had been involved in a hit-and-run accident. Dispatch identified the suspected driver as either Richard Delaney or Randy Delaney. Officer Clelland located the vehicle in front of Martin Delaney's residence. Martin Delaney is the brother of Richard and Randy Delaney.

259 Wis.2d 81
After finding Richard Delaney hiding in the house, Officer Clelland placed both Randy and Richard Delaney in custody. During the investigation, Richard Delaney confessed that he had been the driver of the offending vehicle. Officer Clelland then formally placed Richard Delaney (Delaney) under arrest and transported him to the police department

¶ 3. Count One of the eight-count criminal complaint charged Richard with OWI pursuant to Wis. Stat. § 346.63(1)(a). The complaint also alleged that Richard had been previously convicted of OWI in July, 1992, and that his driving privileges had been previously revoked for failing to submit to a chemical test in July, 1990, making him a third-time offender pursuant to § 346.65(2)(c). In addition, the complaint alleged that Richard had been previously convicted of attempted possession of THC with intent to deliver, a felony, in July, 1996, making him a repeat offender pursuant to § 939.62.

¶ 4. Delaney moved to suppress the pre-Miranda oral statements he made to Officer Clelland. He also moved to dismiss the applicability of the habitual criminal penalty enhancer under Wis. Stats. § 939.62 from Count One of the complaint. Delaney's motions were denied after an evidentiary hearing on January 14, 2000.2

259 Wis.2d 82
¶ 5. On April 3, 2000, Delaney entered a no contest plea to OWI, third offense, as a repeater pursuant to Wis. Stat. §§ 346.63(1)(a), 346.65(2)(c), and 939.62. He also pled no contest to two counts of causing injury while operating while intoxicated in violation of § 346.63(2)(a)1

¶ 6. The circuit court for Kenosha County, the Honorable S. Michael Wilk, presiding, imposed the following sentence:

Count One [OWI, third offense]: sentence withheld and six years probation to run concurrent with Count Three (R. 30:56).
Count Three [Causing injury by motor vehicle while under the influence of intoxicant as a repeater]: 14 months prison stayed and six years probation to run concurrent with Count One and consecutive to Count Five (R. 30:56).
Count Five [Causing injury by motor vehicle while under the influence of intoxicant as a repeater]: three years prison (R. 30:55, 30:56).
If probation is revoked, a potential three years for the withheld sentence plus 14 months for the stayed sentence (R 30:56, 30:57).

¶ 7. Delaney filed motions for post-conviction relief on February 19, 2001, seeking to reverse the circuit court's ruling applying the penalty enhancer under Wis. Stat. § 939.62, and reserving the right to challenge the circuit court's denial of the motion to suppress his pre-Miranda statements on direct appeal. After negotiation with the State, a stipulated sentence modification order was entered on March 28, 2001, disposing of Delaney's post-conviction motion challenging the circuit

259 Wis.2d 83
court's denial of the motion to suppress his pre-Miranda statements.3 Delaney filed a notice of appeal on April 16, 2001.

¶ 8. On January 23, 2002, the court of appeals affirmed the circuit court, finding the statutory language of Wis. Stat. §§ 939.62 and 346.65(2)(c) unambiguous. The court of appeals stated:

Both statutes permit an enhanced penalty and the facts squarely support the implementation of both statutes. [Delaney's] present conviction qualifies him as a repeater pursuant to Wis. Stat. § 939.62(1) because the conviction is not for an escape or a failure to report. And [Delaney's] prior felony conviction for attempted possession of THC with intent to deliver further qualifies him as a repeater because the conviction is not a motor vehicle or juvenile offense. Therefore, [Delaney] was properly sentenced as a repeater under both statutes.

State v. Delaney, 2002 WI App 56, ¶ 38, 251 Wis. 2d 481, 640 N.W. 2d 565.

¶ 9. Delaney petitioned this court for review, which we granted on April 22, 2002.

¶ 10. Delaney contends that his sentence was improperly enhanced by the circuit court's application of both the repeater provisions of Wis. Stat. §§ 346.65(2)(c) and 939.62(1)(a). Delaney does acknowledge that he was properly subjected to the repeater provision of § 346.65(2)(c), based on his prior OWI conviction and his refusal to submit to a chemical test. Therefore, we must determine whether § 939.62 applies

259 Wis.2d 84
to Delaney's already enhanced OWI offense based on the existence of a past non-OWI offense.

¶ 11. Delaney advances the following arguments in support of his contention that the general repeater statute, Wis. Stat. § 939.62, may not be applied to an already enhanced sentence under § 346.65: (1) that the statutory language of § 939.62, and our decision in State v. Wideman, 206 Wis. 2d 91, 94, 556 N.W.2d 737 (1996), illustrate that the legislature intended to exempt motor vehicle offenses from § 939.62, and (2) that the court of appeals decision in State v. Ray, 166 Wis. 2d 855, 481 N.W.2d 288 (Ct. App. 1992), prohibits the application of the general repeater statute when a specific enhancer has already been utilized.



¶ 12. Delaney's arguments require us to construe the language of Wis. Stat. §§ 346.65 and 939.62, raising questions of law, which we review independently. Wideman, 206 Wis. 2d at 94.


¶ 13. The purpose of statutory construction is to determine and give effect to the legislative intent, which is ascertained by considering the language of the statute, and if necessary the scope, history, context, subject matter and object intended to be remedied or accomplished. Ray, 166 Wis. 2d at 872. When construing multiple statutes, we seek to harmonize them. Id. at 873. "It is a cardinal rule of statutory construction that conflicts between statutes are not favored and will be held not to exist if the statutes may otherwise be reasonably construed." Wyss v. Albee, 193 Wis. 2d 101, 110, 532 N.W.2d 444 (1995).

259 Wis.2d 85
[5, 6]

¶ 14. We first look to the language of a statute and attempt to interpret it based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986). Only when statutory language is ambiguous may we examine other construction aids such as legislative history, scope, context, and subject matter. State v. Waalen, 130 Wis. 2d 18, 24, 386 N.W.2d 47 (1986). A statute is ambiguous if reasonable persons could disagree as to its meaning. Williquette, 129 Wis. 2d at 248.


¶ 15. As noted above, if the statute is clear and unambiguous, we need not look beyond the statutory language to ascertain its meaning. However, we may construe a clear and unambiguous statute "if a literal application would lead to an absurd or unreasonable result," Coca-Cola Bottling Co. of Wisconsin v. La Follette, 106 Wis. 2d 162, 170, 316 N.W.2d 129 (Ct. App. 1982).



¶ 16. Delaney contends that the penalty enhancer under Wis. Stat. § 939.62 should not have been applied to the OWI count, since it was improperly used to further enhance his already enhanced penalty under the OWI provisions in § 346.65(2)(c). We disagree. The circuit court and court of appeals did not err in applying the general penalty enhancer under § 939.62 to further enhance Delaney's already enhanced sentence under § 346.65(2)(c).

¶ 17. Delaney bases his argument upon language in Wis. Stat. § 939.62(3) that he contends seemingly excludes motor vehicle offenses from its scope. However,

259 Wis.2d 86
a careful reading of the statute reveals that the plain language of § 939.62 does not exclude OWI offenses under § 346.63(1) from the scope of crimes to which the penalty enhancer applies. Wisconsin Stat. § 939.62(1) states:
If the actor is a repeater, as that term is defined in sub. (2), and the present conviction is for any crime for which imprisonment may be imposed, except for an escape under s. 946.42 or a failure to report under s. 946.425, the maximum term of imprisonment prescribed by law for that crime may be increased as follows:
(a) A maximum term of one year or less may be increased to not more than 3 years.
(b) A maximum term of more than one year but not more than 10

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