State v. Imbruglia

Decision Date08 February 2012
Docket NumberNo. 2011AP1373–CR.,2011AP1373–CR.
Citation812 N.W.2d 540,340 Wis.2d 498,2012 WI App 40
PartiesSTATE of Wisconsin, Plaintiff–Respondent, v. Michael A. IMBRUGLIA, Defendant–Appellant.
CourtWisconsin Court of Appeals

OPINION TEXT STARTS HEREAppeal from a judgment and an order of the circuit court for Ozaukee County: Thomas R. Wolfgram, Judge. Affirmed.

¶ 1GUNDRUM, J.1

Michael A. Imbruglia appeals from an Ozaukee county judgment convicting him of operating a motor vehicle while under the influence of an intoxicant (OWI) fourth offense, possession of Tetrahydrocannabinol (THC) and possession of drug paraphernalia. He further appeals from an order denying his postconviction motion. Imbruglia advances an issue preclusion argument, an argument that a prior Colorado conviction cannot be counted because it was under a statute not substantially similar to Wisconsin's statute and a collateral attack on a prior Wisconsin conviction. None of Imbruglia's arguments persuade. We affirm.

¶ 2 On October 5, 2009, Imbruglia was convicted of OWI second offense (the Ozaukee I conviction) before Judge Paul V. Malloy after Imbruglia successfully argued against counting a 2002 Colorado conviction as a prior conviction. 2 On October 6, 2009, the day after his Ozaukee I conviction, Imbruglia was again arrested in Ozaukee county for OWI. His resulting fourth offense conviction (the Ozaukee II conviction) is the subject of this appeal.

¶ 3 The facts are not in dispute. At approximately 5:12 p.m., in Ozaukee county, a police officer clocked Imbruglia driving fifty-six miles per hour in a twenty-five mile per hour zone. The officer activated his emergency lights and sirens. The officer gave chase on a curving road traveling sixty-five miles per hour and, despite reaching ninety-five miles per hour, the officer was unable to catch up to Imbruglia. Another officer eventually located Imbruglia. While speaking with Imbruglia, the officer could smell a strong odor of intoxicants and observed that Imbruglia had bloodshot eyes and slurred speech. Imbruglia admitted he had fled from the police pursuit. Imbruglia performed unsatisfactorily in field sobriety testing and his preliminary breath test result was over the legal limit. He was arrested and his subsequent blood test result showed a blood alcohol content of .209 percent.

¶ 4 After Imbruglia's October 6, 2009 arrest, the State charged him with OWI fourth offense, operating a motor vehicle with a prohibited alcohol concentration (PAC) fourth offense, operating after revocation, possession of THC and possession of drug paraphernalia. The complaint detailed Imbruglia's prior record, showing as a basis for the OWI fourth and PAC fourth charges his 2009 Ozaukee I conviction, a 2005 OWI conviction in the city of Wauwatosa municipal court and his 2002 Colorado conviction.

¶ 5 Issue preclusion. In response to the criminal complaint, Imbruglia filed a motion before Judge Thomas R. Wolfgram to strike the 2002 Colorado conviction and amend the OWI and PAC counts to third offenses based on the doctrine of issue preclusion. Imbruglia predicated his issue preclusion argument on Judge Malloy's ruling in Ozaukee I that the Colorado conviction could not be counted as a prior conviction.

¶ 6 In Paige K.B. v. Steven G.B., 226 Wis.2d 210, 594 N.W.2d 370 (1999), our supreme court established a two-step analysis for issue preclusion. The first step is whether a litigant is in privity or has sufficient identity of interest with the party to the prior proceeding. Id. at 224, 594 N.W.2d 370. Whether privity exists is a question of law reviewed de novo. Masko v. City of Madison, 2003 WI App 124, ¶ 5, 265 Wis.2d 442, 665 N.W.2d 391. Obviously, this is only a question when issue preclusion is used against a nonparty to the former action. Id.

¶ 7 The second step addresses whether application of issue preclusion is consistent with fundamental fairness. Paige K.B., 226 Wis.2d at 225, 594 N.W.2d 370. The relevant factors for the court to consider are: (1) could the party against whom preclusion is sought, as matter of law, have obtained review of the judgment; (2) is the question one of law that involves two distinct claims or intervening contextual shifts in the law; (3) do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue; (4) have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; or (5) are matters of public policy and individual circumstances involved that would render the application of issue preclusion to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action. Masko, 265 Wis.2d 442, ¶ 6, 665 N.W.2d 391.

¶ 8 Whether applying issue preclusion is consistent with fundamental fairness is a mixed question of law and fact subject to both de novo review and the erroneous exercise of discretion standard. See id.

¶ 9 At the motion hearing on issue preclusion, Judge Wolfgram determined that, of the five fundamental fairness considerations, one through four weighed in favor of issue preclusion. The fifth consideration, however, public policy and individual circumstances, weighed heavily against issue preclusion and drove his decision. Judge Wolfgram explained that it “would be unfair essentially or provide an inadequate opportunity to have this matter fully and fairly litigated [as to] whether it's a fourth offense.” Judge Wolfgram noted that Wisconsin's policy of counting substantially similar out-of-state convictions is in place to protect public safety by imposing progressively higher penalties as the number of prior convictions rises. In declining to apply issue preclusion, Judge Wolfgram emphasized that Imbruglia's arrest for OWI occurred a day after his Ozaukee I OWI conviction, providing “individual circumstances which in [his] view warrant[ed] a relook” in this case. Judge Wolfgram correctly applied the law and correctly exercised his discretion in declining to apply issue preclusion.

¶ 10 Under the two-step analysis for issue preclusion, step one looks to whether the parties were in privity. Privity is not at issue here because the State and Imbruglia were the parties in both Ozaukee I and Ozaukee II. Thus, as a matter of law, privity exists. See Masko, 265 Wis.2d 442, ¶ 5, 665 N.W.2d 391.

¶ 11 That determined, we turn to the second step, whether application of issue preclusion is consistent with fundamental fairness. See Paige K.B., 226 Wis.2d at 224–25, 594 N.W.2d 370. We address the five factors in order. See Masko, 265 Wis.2d 442, ¶ 6, 665 N.W.2d 391.

¶ 12 The first factor favors issue preclusion. The State had the opportunity to seek review of the Ozaukee I decision. It did not.3

¶ 13 The second factor, whether the issue is a question of law involving distinct claims or intervening shifts in the law, weighs against issue preclusion. In the intervening time since Judge Malloy's decision in Ozaukee I that the Colorado conviction is not countable as a prior conviction, recent decisions have signaled a shift in the law to cast a wider net when determining what out-of-state prior convictions are countable. See, e.g., State v. Carter, 2010 WI 132, ¶ 63, 330 Wis.2d 1, 794 N.W.2d 213 (where our supreme court clarified that the legislature has promulgated language in Wis. Stat. § 343.307(1)(d) “to encompass a broad array of convictions, suspensions, and revocations under the laws of another jurisdiction for counting purposes”); see also, e.g., State v. Puchacz, 2010 WI App 30, ¶ 13, 323 Wis.2d 741, 780 N.W.2d 536 (where, in counting defendant's out-of-state convictions, this court relied on the public policy supporting Wisconsin's OWI laws and a “broad interpretation and application” of what is countable under § 343.307(1)(d)).

¶ 14 The third factor, whether significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue, weighs in favor of issue preclusion; there is no indication of significant differences in the quality or extensiveness between the proceedings in Ozaukee I and the case at bar, Ozaukee II.

¶ 15 The fourth factor, have the burdens of persuasion shifted such that Imbruglia had a lower burden of persuasion in the first case than in the second, also weighs in favor of issue preclusion because the burden in both cases was the same.

¶ 16 Finally, we examine the fifth factor, whether matters of public policy and individual circumstances involved would render the application of issue preclusion fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action. As Judge Wolfgram noted, Wisconsin's policy of counting substantially similar out-of-state convictions is in place to protect public safety by imposing progressively higher penalties as the number of prior convictions rises. Moreover, Imbruglia's case presented

Judge Wolfgram with an individual circumstance not present in Ozaukee I: a defendant who, the day after his OWI second conviction, was again arrested for OWI, in an incident that could have ended tragically given the high rates of speed at which the officer traveled in attempting to catch up to Imbruglia and given Imbruglia's PAC of over twice the legal limit.

¶ 17 After review of all the factors, we conclude Judge Wolfgram properly declined to apply issue preclusion.

¶ 18 Countability of Colorado conviction underWis. Stat.§ 343.307(1)(d). After the circuit court declined to apply issue preclusion, Imbruglia filed a second motion to strike his prior Colorado conviction, this time arguing that the Colorado statute he was previously convicted under, Colo.Rev.Stat. § 42–4–1301(1)(b), is not substantially similar to Wis. Stat. § 346.63(1)(a) and therefore does not constitute a prior offense under § 343.307(1)(d) or a penalty enhancer under Wis. Stat. §...

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