State v. Herman, 01-1118-CR.

• Decision Date: 18 December 2001
• Docket Number: No. 01-1118-CR.,01-1118-CR.
• Citation: 640 N.W.2d 539,2002 WI App 28,250 Wis.2d 166
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jacob E. HERMAN, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

250 Wis.2d 166

2002 WI App 28

640 N.W.2d 539

STATE of Wisconsin, Plaintiff-Respondent, v. Jacob E. HERMAN, Defendant-Appellant.¹

No. 01-1118-CR.

Court of Appeals of Wisconsin.

Submitted on briefs October 15, 2001.

Decided December 18, 2001.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Jefren E. Olsen, assistant state public defender, and Jack E. Schairer, assistant state public defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and James C. Babler, district attorney.

Before Cane, C.J., Hoover, P.J., and Peterson, J.²

¶ 1. CANE, C.J.

Jacob Herman appeals from the sentencing portion of a judgment convicting him of possession of THC contrary to WIS. STAT. § 961.41(3g)(e). The circuit court suspended Herman's operating privilege for six months after concluding that it had no discretion to impose less than the minimum suspension mandated by WIS. STAT. § 961.50, which applies to those who are convicted of violating WIS. STAT. ch. 961. This appeal presents a single issue: whether § 961.50 prescribes a "minimum sentence" as that term is used in WIS. STAT. § 961.438, which provides that minimum sentences for violations of ch. 961 are presumptive, rather than mandatory. We conclude that a suspension imposed pursuant to § 961.50 is not a "minimum sentence" as that term is used in § 961.438 and that it is a mandatory penalty. Accordingly, we affirm the judgment.

STATEMENT OF FACTS

¶ 2. The facts are undisputed. Herman pled guilty to misdemeanor possession of THC. Prior to sentencing, Herman asked the circuit court not to impose the minimum six-month suspension of operating privileges dictated by WIS. STAT. § 961.50. Herman asserted that the suspension was not warranted because he was not driving at the time of his offense and he needs his car for employment. Herman argued that the court had discretion to suspend his operating privilege for less than six months because the § 961.50 suspension is presumptive rather than mandatory, pursuant to WIS. STAT. § 961.438.

¶ 3. The court withheld sentence and placed Herman on probation for one year. However, the court also suspended Herman's operating privilege for six months after concluding that it had no discretion to impose less than the six-month suspension dictated by WIS. STAT. § 961.50. The court agreed that if it had discretion to impose a shorter suspension, it would consider doing so. This appeal followed.

APPLICABLE STATUTES

¶ 4. Two statutes are at issue in this case.³ The first, WIS. STAT. § 961.438, provides:

Minimum sentence. Any minimum sentence under this chapter is a presumptive minimum sentence. Except as provided in s. 973.09(1)(d),[⁴] the court may impose a sentence that is less than the presumptive minimum sentence or may place the person on probation only if it finds that the best interests of the community will be served and the public will not be harmed and if it places its reasons on the record.

¶ 5. The second statute, WIS. STAT. § 961.50, provides:

Suspension or revocation of operating privilege. (1) If a person is convicted of any violation of this chapter, the court shall, in addition to any other penalties that may apply to the crime, suspend the person's operating privilege, as defined in s. 340.01(40), for not less than 6 months nor more than 5 years. The court shall immediately take possession of any suspended license and forward it to the department of transportation together with the record of conviction and notice of the suspension. The person is eligible for an occupational license under s. 343.10 as follows:

(a) For the first such conviction, at any time.

(b) For a 2nd conviction within a 5-year period, after the first 60 days of the suspension or revocation period.

(c) For a 3rd or subsequent conviction within a 5-year period, after the first 90 days of the suspension or revocation period.

(2) For purposes of counting the number of convictions under sub. (1), convictions under the law of a federally recognized American Indian tribe or band in this state, federal law or the law of another jurisdiction, as defined in s. 343.32(1m)(a), for any offense therein which, if the person had committed the offense in this state and been convicted of the offense under the laws of this state, would have required suspension or revocation of such person's operating privilege under this section, shall be counted and given the effect specified under sub. (1). The 5-year period under this section shall be measured from the dates of the violations which resulted in the convictions.

(3) If the person's license or operating privilege is currently suspended or revoked or the person does not currently possess a valid operator's license issued under ch. 343, the suspension or revocation under this section is effective on the date on which the person is first eligible and applies for issuance, renewal or reinstatement of an operator's license under ch. 343.

LEGAL STANDARDS

[1-4]

¶ 6. Resolution of this issue requires construction of WIS. STAT. §§ 961.50 and 961.438, an issue of law that we review independently. See State v. Schmitt, 145 Wis. 2d 724, 729-30, 429 N.W.2d 518 (Ct. App. 1988)

. The aim of all statutory construction is to ascertain the legislature's intent. Kerkvliet v. Kerkvliet, 166 Wis. 2d 930, 939, 480 N.W.2d 823 (Ct. App. 1992). In determining that intent, we first consider the statutory language. Id. We also bear in mind that statutes relating to the same subject matter should be read together and harmonized if possible. See id.

[5-7]

¶ 7. A statute is ambiguous when it is capable of being understood in two or more different senses by reasonably well-informed persons. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506 (1997). If a statute is ambiguous, we look to the scope, history, context, subject matter and object of the statute in order to ascertain legislative intent. Id. Whether a statute is ambiguous is a question of law. Awve v. Physicians Ins. Co., 181 Wis. 2d 815, 822, 512 N.W.2d 216 (Ct. App. 1994).

DISCUSSION

[8]

¶ 8. At issue is whether a suspension imposed pursuant to WIS. STAT. § 961.50 constitutes a "minimum sentence" as that term is used in WIS. STAT. § 961.438. If a suspension is a "minimum sentence" under § 961.438, then it would be presumptive, rather than mandatory. We conclude that § 961.50 suspensions are not "minimum sentences" subject to § 961.438 and that they are mandatory.

¶ 9. As Herman recognizes, the term "sentence" is not defined in WIS. STAT. § 961.438 or anywhere else in WIS. STAT. ch. 961. Nor has case law construed the term "sentence" as used in § 961.438, except in cases acknowledging that it applies to incarceration. See, e.g., State v. Mohr, 201 Wis. 2d 693, 696, 701, 549 N.W.2d 497 (Ct. App. 1996)

(citing § 161.438 (1993-94), now renumbered WIS. STAT. § 961.438, court states that law presumes defendant, convicted of violating 161.41(1m)(cm)2 (1993-94), will be sentenced to at least two years in prison unless the defendant convinces the court that the best interests of the community would be served and the public would not be harmed by probation or a lesser sentence).

¶ 10. Nonetheless, case law has generally defined "sentence" as "the judgment of conviction by which the court imposes the punishment or penalty provided by the statute for the offense" upon the person being found guilty. See State v. Price, 231 Wis. 2d 229, 232, 604 N.W.2d 898 (Ct. App. 1999)

. Price also recognized that, in appropriate cases, the terms "sentence" and "sentencing" will be given their stricter legal meaning if the statute or law so requires. See id. "[W]hether a `sentence' will be construed in a narrow or broad fashion depends on the purpose of the particular statute under consideration." Id. at 234.

¶ 11. Herman argues that the term "minimum sentence" in WIS. STAT. § 961.438 is ambiguous because it is capable of being understood in two or more different senses by reasonably well-informed persons. He contends the term can be construed narrowly to cover only the minimum terms of imprisonment and minimum fines prescribed in WIS. STAT. ch. 961. In the alternative, it can be construed broadly to cover all "penalties and punishments" provided in ch. 961 and imposed in the judgment of conviction, including the suspension of operating privileges under WIS. STAT. § 961.50. We agree that § 961.438 is, on its face, ambiguous.

¶ 12. However, we conclude that WIS. STAT. § 961.50 is not, on its face, ambiguous. First, § 961.50(1) provides that the penalty imposed is an additional penalty, above and beyond other penalties in WIS. STAT. ch. 961. The statute states, "the court shall, in addition to any other penalties that may apply to the crime, suspend the person's operating privilege. . . ." (emphasis added). See Karow v. Milwaukee County Civil Serv. Comm'n, 82 Wis. 2d 565, 570, 263 N.W.2d 214 (1978)

(use of the word "shall" creates a presumption that the statute is mandatory). Moreover, there is no explicit attempt to incorporate WIS. STAT. § 961.438 in the statute, which arguably shows a lack of intent to apply § 961.438 to § 961.50.

¶ 13. Also, WIS. STAT. § 961.50 does not anticipate that an offender will receive a suspension of less than six months, or no suspension at all. The statute provides that the circuit court "shall immediately take possession of any suspended license." The statute also lays out a specific timeline for seeking an occupational license. This specificity does not contemplate that a person's operating privilege may have been suspended for less than six months, or not at all.

[9]

¶ 14. Although we have concluded that WIS. STAT. § 961.50 is unambiguous on its face, we recognize that a statute that is plain on its face may be rendered ambiguous by the context in which it is sought to be applied. See Weinberger v. Bowen, 2000 WI App 264, ¶ 13, 240 Wis. 2d 55, 622 N.W.2d 471

. We...