State v. Hanson

• Decision Date: 26 June 2001
• Docket Number: No. 99-3142-CR.,99-3142-CR.
• Citation: 2001 WI 70,628 N.W.2d 759,244 Wis.2d 405
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jeremy J. HANSON, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

244 Wis.2d 405

2001 WI 70

628 N.W.2d 759

STATE of Wisconsin, Plaintiff-Respondent, v. Jeremy J. HANSON, Defendant-Appellant-Petitioner.

No. 99-3142-CR.

Supreme Court of Wisconsin.

Oral argument April 12, 2001.

Decided June 26, 2001.

For the defendant-appellant-petitioner there were briefs by James B. Connell and Crooks, Low, Connell & Rottier, S.C., Wausau, and oral argument by James B. Connell.

For the plaintiff-respondent the cause was argued by Kathleen M. Ptacek, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

¶ 1. ANN WALSH BRADLEY, J.

The defendant, Jeremy J. Hanson (Hanson), seeks review of a decision of the court of appeals upholding the circuit court's judgment convicting him of operating a motor vehicle while his operating privileges were revoked as a habitual traffic offender (HTO).¹ Hanson contends that because his HTO status was rescinded pursuant to Wis. Stat. § 351.09 (1997-98),² the circuit court erroneously imposed a criminal sentence rather than a civil forfeiture.

¶ 2. We conclude that a criminal sentence based solely upon Hanson's HTO status, which was rescinded under § 351.09 prior to his conviction, is a sentence in excess of that authorized by law and is invalid under Wis. Stat. § 971.13. However, given the state of the record, we cannot determine whether Hanson's driving record supported a criminal sentence even without consideration of his HTO status. Accordingly, we reverse the decision of the court of appeals and remand to the circuit court for such a determination.

I

¶ 3. On four occasions in 1996, Hanson was convicted of operating a motor vehicle after his license had been revoked or suspended (OAR/OAS), contrary to Wis. Stat. § 343.44(1) (1995-96). As a consequence of the four OAR/OAS convictions, Hanson was classified as an HTO in December 1996 pursuant to Wis. Stat. § 351.02 (1995-96). His HTO classification resulted in the revocation of his driving privileges for a period of five years. See Wis. Stat. § 351.025(1) (1995-96). The five-year HTO revocation was one of a number of suspensions and revocations imposed upon Hanson for his numerous 1996 violations.

¶ 4. While still subject to the HTO revocation, and perhaps to other suspensions and revocations, Hanson was caught illegally driving a fifth time on October 31, 1998. Hanson was charged with his fifth violation of Wis. Stat. § 343.44(1). In the criminal complaint, the State listed the four 1996 OAR/OAS convictions and alleged that for his fifth offense Hanson was subject to a maximum fine of $2,500 and a potential sentence of one year in jail.

¶ 5. The complaint also set forth that Hanson's sentence was subject to enhancement due to his HTO classification. The state alleged that under Wis. Stat. § 351.08, Hanson was subject to an additional $5,000 fine and a possible 180 additional days of imprisonment.

¶ 6. Following the issuance of the complaint, Hanson pursued a rescission of his HTO status through the Department of Transportation (Department). As part of the 1997 legislative overhaul of the offense of OAR/OAS, which included the removal of OAR/OAS as a predicate offense that may be used to classify a driver as an HTO, the Department was authorized to redetermine a driver's HTO status without consideration of OAR/OAS convictions. Wis. Stat. § 351.09; 1997 Wis. Act 84, §§ 149, 151. In February 1999, the Department rescinded Hanson's HTO status, which was based on his OAR/OAS convictions, pursuant to Wis. Stat. § 351.09.³

¶ 7. Subsequent to the rescission of his HTO status, in May 1999, the defendant entered a plea of no contest to the charge of OAR, fifth offense, as an HTO, as alleged in the criminal complaint. During the plea colloquy, Hanson admitted that the OAR offense was his fifth offense and that as a result the court could impose a sentence of up to one year in jail. Hanson also admitted that he had been adjudged an HTO in December 1996 and that as a consequence of his HTO status the court could impose an additional 180 days in jail. Thereafter, the circuit court accepted his plea of no contest, imposed a fine of $300, and sentenced Hanson to 20 days in jail. In rendering the sentence, the circuit court did not articulate whether the OAR offense, the HTO enhancer, or both, provided the basis for the criminal penalty.

¶ 8. Thereafter, Hanson pursued a post-conviction motion challenging the imposition of a term of imprisonment and requesting that the circuit court substitute the criminal sentence with a civil forfeiture. His argument was premised on the February 1999 rescission of his HTO status. Hanson argued that because his HTO status had been rescinded, it could not be the basis for the imposition of a criminal sentence. He further advanced that in the absence of the HTO enhancer, there was no basis for imposing a criminal sentence.

¶ 9. The circuit court denied Hanson's motion, and Hanson appealed. In an unpublished decision, the court of appeals concluded that Hanson had waived the right to challenge his conviction and sentence by the entry of his no contest plea.

II

¶ 10. In order to adequately address the parties' arguments, we believe a brief introduction to the recent legislative changes and relevant statutory scheme is necessary.

¶ 11. In 1997, the Wisconsin legislature enacted sweeping changes to the treatment of the motor vehicle offenses of operating after suspension (OAS) and operating after revocation (OAR). These changes were made in response to the recommendations of the 1995 Governor's Task Force on Operating After Revocation and Operating While Intoxicated and reflect an intent to simplify the previously confusing and complicated law of OAR and OAS.

¶ 12. Prior to August 1, 2000, the effective date of many of the relevant provisions of 1997 Wis. Act 84, operating after revocation and operating after suspension were treated as one offense (OAR/OAS). See Wis. Stat. § 343.44(1).⁴ The punishment upon conviction was dependent upon the underlying basis for the revocation or suspension and the number of prior OAR/OAS convictions. See Wis. Stat. § 343.44(2). A driver who violated a suspension or revocation imposed solely for failure to pay a fine or forfeiture was subject only to a civil forfeiture. See, e.g., Wis. Stat. § 343.44(2)(e)2. The amount of that forfeiture increased with each successive OAR/OAS conviction. A driver whose privileges were suspended or revoked for any other reason was subject to a civil forfeiture for the first offense of OAR/OAS, but faced potential imprisonment for all subsequent offenses. See Wis. Stat. § 343.44(2).

¶ 13. Currently, as a result of the 1997 legislation, the offenses of OAS and OAR are individual offenses. See Wis. Stat. § 343.44(1)(a) & (b) (1999-2000). The legislature has provided that revocation of driving privileges is to occur for more serious violations. See generally Wis. Stat. § 343.30 (1999-2000). Consequently, OAR is treated as a criminal offense, the violation of which carries the potential for imprisonment. Wis. Stat. § 343.44(2)(b) (1999-2000). Suspensions, on the other hand, are now reserved for more minor infractions. See generally Wis. Stat. § 343.30 (1999-2000). Thus, OAS is treated as a less serious violation, for which the only penalty is a civil forfeiture. Wis. Stat. § 343.44(2)(a) (1999-2000).

¶ 14. 1997 Wis. Act 84 also made changes to chapter 351, which defines and regulates habitual traffic offenders. 1997 Wis. Act 84, §§ 149-52. Under the prior statutory scheme, a person who had been convicted of four OAR/OAS offenses was classified as an HTO pursuant to Wis. Stat. § 351.02(1)(a)4 (1995-96). Classification as an HTO subjects the driver to a five-year revocation and also serves as a penalty enhancer for subsequent violations of § 343.44. Wis. Stat. § 351.025 & § 351.08. A driver classified as an HTO who is convicted of violating § 343.44 is subject to an additional fine of up to $5,000 and an additional term of imprisonment of up to 180 days in jail. Wis. Stat. § 351.08.

¶ 15. Consistent with the legislative intent to decriminalize OAS, 1997 Wis. Act 84 amended chapter 351 to alleviate the effect of prior OAR/OAS convictions on repeat offenders who had been classified as HTOs as a result of those convictions. It did so by removing OAR/OAS from the list of offenses that may serve as the basis for determining HTO status. 1997 Wis. Act 84, § 149.

¶ 16. Most important for our purposes, the legislature also provided for the recalculation of HTO status of those drivers already determined to be HTOs because of OAR/OAS convictions through the creation of Wis. Stat. § 351.09. Under § 351.09, a driver can request that the Department recalculate a previous HTO determination without consideration of OAR/OAS convictions, and may have the HTO status rescinded and driving privileges reinstated, if appropriate:

If the recalculation demonstrates that the person is not a habitual traffic offender or repeat habitual traffic offender, the department shall rescind the order declaring the applicant a habitual traffic offender or repeat habitual traffic offender. Upon the completion of the recalculation under this section, the department shall provide written notice to the person of the result of the recalculation, of the order of rescission, if any, under this section and, if appropriate, of the process for reinstating the person's operating privilege.

Wis. Stat. § 351.09.

¶ 17. When it enacted 1997 Wis. Act 84, the legislature assigned to the Department the authority to determine the effective dates of the various provisions of the act. Wis. Stat. § 85.515. Many provisions, including the revisions to § 343.44, did not become effective until August 1, 2000. Wis. Admin. Reg. No. 534, 24-25 (June 2000). However, the Department implemented § 351.09 on an earlier date, allowing the recalculation and rescission of HTO determinations to begin on August 1, 1998. Note, Wis. Stat. § 351.09; ...