State v. Devries

• Decision Date: 17 May 2011
• Docket Number: No. 2009AP3166–CR.,2009AP3166–CR.
• Citation: 2011 WI App 78,334 Wis.2d 430,801 N.W.2d 336
• Parties: STATE of Wisconsin, Plaintiff–Respondent,v.Marilee DEVRIES, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

334 Wis.2d 430

801 N.W.2d 336

2011 WI App 78

STATE of Wisconsin, Plaintiff–Respondent,

v.Marilee DEVRIES, Defendant–Appellant.

No. 2009AP3166–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 3, 2011.Opinion Filed May 17, 2011.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Matthew S. Pinix of Law Office of Matthew S. Pinix, LLC, Milwaukee.On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Michael C. Sanders, assistant attorney general.Before CURLEY, P.J., FINE and KESSLER, JJ.FINE, J.

[334 Wis.2d 433] ¶ 1 Marilee Devries appeals the judgment convicting her of drunk driving as a fifth offense, see Wis. Stat. §§ 343.307(1), 346.63(1)(a), & 346.65(2)(am) 5, the judgment convicting her after the revocation of her probation, and the circuit court order denying her motion for postconviction relief. The only issue on this appeal is whether the circuit court erred in counting Arizona and California drunk-driving matters as prior “ convictions” under the Wisconsin statutes. We affirm.

I.

¶ 2 Devries's appeal requires that we apply Wis. Stat. §§ 340.01(9r) and 343.307(1)(d). Our review of what they require is de novo. See Village of Shorewood v. Steinberg, 174 Wis.2d 191, 201, 496 N.W.2d 57, 61 (1993). We apply statutes as they are written unless they are ambiguous or unconstitutional. See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 44, 271 Wis.2d 633, 662, 681 N.W.2d 110, 123–124. Further, we will not overturn a circuit court's findings of fact unless they are “clearly erroneous.” Wis. Stat. RuleE 805.17(2) (trial court's findings of fact accepted on appeal unless they are “clearly erroneous”) (made applicable to criminal proceedings by Wis. Stat. § 972.11(1)). When evidence is purely documentary, as it is here, our review is de novo. State v. Love, 2005 WI 116, ¶ 70, 284 Wis.2d 111, 148, 700 N.W.2d 62, 81; Schimmels v. Noordover, 2006 WI App 7, ¶ 10, 288 Wis.2d 790, 796, 709 N.W.2d 466, 470. Finally, proof of a crime's elements may be made by circumstantial evidence that logically flows from the direct evidence. State v. Poellinger, 153 Wis.2d 493, 501, 507–508, 451 N.W.2d 752, 755, 758 (1990). We now turn to the statutes.

¶ 3 As material, Wis. Stat. § 343.307(1) provides:

The court shall count the following ... to determine the penalty under ... [s.]346.65(2):

....

(d) Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws.

As material, Wis. Stat. § 340.01(9r) provides:

“Conviction” ... means ... a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or an authorized administrative tribunal, an unvacated forfeiture of property deposited to secure the person's appearance in court ... or [a] violation of a condition of release without the deposit of property, regardless of whether or not the penalty is rebated, suspended, or probated, in this state or any other jurisdiction.¹

Devries had argued that this definition does not apply to Wis. Stat. § 343.307(1)(d). After Devries filed her initial brief on this appeal, State v. Carter, 2010 WI 132, ¶ 43, 330 Wis.2d 1, 17, 794 N.W.2d 213, 220, held that it did. Devries recognizes this and withdraws her argument to the contrary. By using the disjunctive word “or” in § 340.01(9r) to separate the various ways a person may be “convicted,” the legislature provided that each way was independent of the others. See State v. Dearborn, 2008 WI App 131, ¶ 21, 313 Wis.2d 767, 780, 758 N.W.2d 463, 469, aff'd 2010 WI 84, 327 Wis.2d 252, 786 N.W.2d 97.

II.

¶ 4 In support of its contention that Devries had four prior “convictions” under § 343.307(1)(d), the State introduced certified copies of proceedings involving Devries in Arizona and California.² A. The Arizona Matters.

¶ 5 The State introduced the following certified copies of Arizona documents:

• An “Arizona Traffic Ticket and Complaint” (uppercasing omitted) that indicates that Devries was arrested on August 31, 2005, for driving while intoxicated. Devries's signature and fingerprint appears on the document under a checked box that reads: “Without admitting guilt, I promise to appear on the court date listed above.” The document told Devries in bold letters: “You Must Appear At: “CITY OF PHOENIX MUNICIPAL COURT[,] 300 West Washington Street [,] Phoenix, AZ 85003 Phone (602) 262–6421” (Paragraphing altered.) The court date is given as September 9, 2005.

• A Phoenix Municipal Court “Record of Proceedings” (uppercasing omitted) referencing Devries's traffic ticket and complaint. The document has an entry for “9/16/05” that recites: “Past Court date. CMS Issued Summons.” The document also indicates: “Attorney Name: Bruce Aldridge.”

• A November 28, 2005, decision by an Arizona Department of Transportation administrative law judge suspending Devries's “Arizona driver's license/driving privileges” for ninety days. The decision noted that although Devries had requested a hearing on the proposed suspension, she did not appear. The decision also determined that Devries had been arrested in connection with the drunk-driving matter.

• A Phoenix Municipal Court “Record of Proceedings” (uppercasing omitted) referencing Devries's traffic ticket and complaint. The document noted that there was a “Current Trial Date: 06/07/06” (bolding omitted). An entry on the document dated June 2, 2006, recites “? told ? Atty she was not going to be here. ? Atty has left multiple messages for about trial date.”

These documents are evidence that: (1) Devries was arrested on August 31, 2005 for drunk driving; (2) Devries was directed to appear in court on the specified date; (3) Devries promised to appear in court on the specified date; (4) Devries had a lawyer for the Arizona matter; and (5) Devries defaulted on her obligation and promise to appear in court. Indeed, one of Devries's trial lawyers conceded that Devries had “violated a condition of her bond” in Arizona. Thus, the documents support the circuit court's conclusion that Devries had a “conviction” as that word is defined by Wis. Stat. § 340.01(9r) because she did not appear in court when required. See § 340.01(9r) (defining “conviction” as including: a “fail[ure] to comply with the law in a court of original jurisdiction”; and a “violation of a condition of release without the deposit of property.”) We will look at Devries's contentions to the contrary after we examine the California materials.B. The California Matters.

¶ 6 The State introduced the following certified copies of California documents:

• A “Notice to Appear” (uppercasing omitted) on a form used by the “Sheriff's Department County of Riverside” (uppercasing omitted) California. This document indicates the following:

• Devries's “Date of Violation” was December 26, 2003;

• Devries was “arrest[ed]”;

• Devries was arrested for “DUI”;

• Devries was “[i]n custody”;

• Devries was “ordered to appear in the municipal Court of Riverside County” on February 2, 2004; • On December 27, 2003, at 4:15 a.m., Devries signed the form, which included the following:

“1. Without admitting guilt, I promise to appear at the time and place indicated below.

“2. I understand that this court may require that I give bail or other assurance for my appearance.

“3. I understand that failure to appear on the date indicated will result in a warrant being issued for my arrest.”

• A complaint filed on January 26, 2004, in the Superior Court for Riverside County that charged Devries with drunk driving on December 26, 2003.

• A document titled “Case Print” (uppercasing omitted) for the Riverside courts referencing Devries's arrest on December 26, 2003. The document noted the following.

• There was an “[a]rraignment” on February 2, 2004, but Devries did not appear.

• At the February 2 proceeding, a “Bench Warrant Issued for Failure to Appear. Bail set at $10000.00.”

• Devries appeared in court on March 2, 2004, with her lawyer “J. Kendall.” After a stipulated “advisement of rights” (uppercasing omitted), Devries pled “not guilty.” The bench warrant was “[r]ecalled.” A pretrial hearing was set for April 6, 2004.

• On April 6, 2004, Devries's lawyer asked for an adjournment. The matter was reset for May 4, 2004.

• On May 4, 2004, Devries's lawyer asked for an adjournment. The matter was reset for June 1, 2004.

• On June 1, 2004, Devries did not appear. The document notes: “Defendant represented by private counsel J. Kendall.” It also recites: “O.R. Revoked [.] Bench Warrant Issued for Failure to Appear. Bail set at $10000.00.”

¶ 7 These documents are evidence that: (1) Devries was arrested on December 26, 2003, for drunk driving; (2) Devries was “ordered” to appear in court on the date specified in the Notice to Appear; (3) Devries promised to appear in court on the date specified in the Notice to Appear; (4) Devries did not appear on the date specified in the Notice to Appear; (5) Devries had a lawyer for the California matter; (6) Devries pled “not guilty”; and (7) Devries did not appear for trial. Thus, the documents support the circuit court's conclusion that Devries had a “conviction” as that word is defined by Wis. Stat. § 340.01(9r) because she did not appear in court after she was arrested and released even though she was “ordered” to do so, and she did not appear on the date scheduled for trial. See § 340.01(9r) (defining “conviction”...