State v. Jewett

• Decision Date: 30 August 2016
• Docket Number: No. 2015AP1014–CR.,2015AP1014–CR.
• Citation: 886 N.W.2d 592 (Table),371 Wis.2d 759
• Parties: STATE of Wisconsin, Plaintiff–Appellant, v. Ronald Marshall JEWETT, Defendant–Respondent.
• Court: Wisconsin Court of Appeals

371 Wis.2d 759

886 N.W.2d 592 (Table)

STATE of Wisconsin, Plaintiff–Appellant,

v.Ronald Marshall JEWETT, Defendant–Respondent.

No. 2015AP1014–CR.

Court of Appeals of Wisconsin.

Aug. 30, 2016.

¶ 1 HRUZ, J.¹

The State appeals a judgment convicting Ronald Jewett of first-offense operating a motor vehicle while intoxicated (OWI). While the State successfully prosecuted the underlying OWI offense to a finding of guilt, the circuit court declined to convict and sentence Jewett for a third-offense OWI, as charged. Instead, the circuit court concluded Jewett had submitted sufficient “exculpatory” evidence regarding his two prior OWI convictions, both of which occurred in Minnesota in 1992 and for which the State of Minnesota no longer retains documents. The State argues the court erred in refusing to consider an unrebutted, certified driving record from the Wisconsin Department of Transportation (DOT) as sufficient proof of Jewett's two prior OWI convictions. We agree with the State, reverse Jewett's conviction for first-offense OWI, and remand for the circuit court to enter a judgment of conviction for third-offense OWI and to conduct a new sentencing hearing as well as any other necessary proceedings.

BACKGROUND

¶ 2 In February 2014, Jewett was arrested and ultimately charged with OWI and operating a motor vehicle with a prohibited alcohol concentration (PAC), both as third offenses. The facts surrounding the underlying offense and arrest are largely immaterial to this appeal and we therefore do not set them forth in detail. Following a bench trial, the circuit court found Jewett guilty of OWI, but it convicted and sentenced him only for a first, not a third, OWI offense.

¶ 3 During the trial, the State offered a certified driving record from the Wisconsin DOT as evidence of Jewett's OWI repeater status. The driving record indicates that Jewett has two previous Minnesota OWI convictions, both occurring in 1992. Jewett objected to the exhibit's admission, arguing Wisconsin “has no authority, no duty, no jurisdiction, over the State of Minnesota so that it can't certify anything relative to accuracy or anything else,” and the record was “not a record that was in fact compiled in the State of Wisconsin under some duty thereby making it some certified record or public record.”

¶ 4 Jewett also offered a letter from the Ramsey County (Minnesota) Clerk of Court, which stated: “After a search of our records, we have determined that no documents remain on these cases as they are past retention. Ramsey District Court has no further information regarding this matter.” Jewett argued that because Minnesota no longer kept records of the cases, his two Minnesota OWI convictions should not be counted for OWI repeater purposes. The circuit court asked Jewett's attorney, “Is this a collateral attack motion or something?” to which counsel responded, “Right.” The State objected to Jewett's exhibit on relevance grounds. It also argued Wisconsin case law establishes that a Wisconsin DOT certified driving record is admissible and sufficient for the State to meet its burden of proving a defendant's OWI repeater status, including for prior offenses in another state.

¶ 5 The circuit court admitted into evidence both the State's proffered certified Wisconsin DOT driving record for Jewett and the Ramsey County letter. It then concluded that, without the original court records from the prior OWI cases, defendants such as Jewett do not have a means of collaterally challenging allegations of such prior convictions. The court indicated it would have preferred to have heard this issue as a motion before trial,² but it ultimately concluded that “under the collateral attack cases and rules I have to throw out ... the two old 1992 Minnesota convictions because there's no way this defendant can adequately challenge those because there's no records left.” The court did not mention particular cases or rules involving collateral attacks in reaching this conclusion.

¶ 6 The State further argued that if Jewett was bringing a collateral-attack motion, the State was entitled to an Ernst³ evidentiary hearing upon a finding that Jewett made a prima facie showing. The circuit court stated, “I agree. I can't disagree.... But this ... beyond a reasonable doubt is your burden. And they have submitted exculpatory evidence to me. I am exercising my discretion to eliminate the two Minnesota convictions.” The court then convicted Jewett of OWI as a first offense. The State now appeals the circuit court's ruling that Jewett should be convicted and sentenced only for a first-offense OWI, instead of a third-offense OWI.

DISCUSSION

¶ 7 The State argues the circuit court erred as a matter of law in refusing to consider Jewett's certified Wisconsin DOT driving records as sufficient evidence of his two prior OWI convictions. While contesting the State's argument in this regard, Jewett also argues the Double Jeopardy Clauses in both the Wisconsin and federal constitutions foreclose the State from obtaining the relief it seeks in this appeal. Because we typically reach questions of a constitutional dimension only when necessary, see Labor & Farm Party v. Elections Bd., State of Wis., 117 Wis.2d 351, 354, 344 N.W.2d 177 (1984), we first address the State's argument of error.

I. The circuit court erred in refusing to accept the State's unrebutted evidence of Jewett's prior OWI convictions as provided in the certified Wisconsin DOT records.

¶ 8 The basis upon which the circuit court refused to convict and sentence Jewett for third-offense OWI is somewhat unclear. It appears the court, as a matter of law, either deemed Jewett's Wisconsin DOT certified driving record insufficient proof of his prior OWIs for purposes of WIS. STAT. § 343.307(1), or it determined that such prior convictions cannot be counted when the original record documents of those convictions no longer exist—ostensibly because the absence of those documents either inhibits or forecloses a defendant from collaterally attacking those convictions. In reaching either conclusion, the circuit court believed it was acting within the scope of its discretion.⁴ We agree with the State that either conclusion ignores established case law and is otherwise erroneous.

¶ 9 Under Wisconsin's OWI penalty scheme, second and subsequent OWI offenses are crimes, subject to penalties that increase based on the number of a defendant's prior OWI-related violations. See WIS. STAT. § 346.65(2)(am)2.—7. ; State v. Verhagen, 2013 WI App 16, ¶ 18, 346 Wis.2d 196, 827 N.W.2d 891. A defendant's number of prior violations generally includes the number of convictions under WIS. STAT. §§ 940.09(1) and 940.25 during the defendant's lifetime, plus the total number of suspensions, revocations, and other convictions counted under WIS. STAT. § 343.307(1). See § 346.65(2)(am). In turn, § 343.307(1)(d), as relevant here, provides a court “shall count” convictions under the law of another jurisdiction that prohibit a person from “using a motor vehicle while intoxicated.”

¶ 10 The fact of a prior OWI violation is not an element of the crime of second- or greater-offense OWI. State v. McAllister, 107 Wis.2d 532, 538, 319 N.W.2d 865 (1982). Nonetheless, for the circuit court to impose an enhanced penalty under WIS. STAT. § 346.65(2), “the State must establish the prior offense,” State v. Wideman, 206 Wis.2d 91, 104, 556 N.W.2d 737 (1996) (citing McAllister, 107 Wis.2d at 539, 319 N.W.2d 865 ), and that offense must be proven to the court beyond a reasonable doubt, see State v. Saunders, 2002 WI 107, ¶ 3, 255 Wis.2d 589, 649 N.W.2d 263. The State can establish a prior offense through “appropriate official records or other competent proof.” Wideman, 206 Wis.2d at 108, 556 N.W.2d 737. Finally, the fact of prior OWI convictions is to be proven at sentencing. See State v. Matke, 2005 WI App 4, ¶ 9, 278 Wis.2d 403, 692 N.W.2d 265.

¶ 11 The most-relevant decision regarding repeat OWI offenses for purposes of this case is State v. Van Riper, 2003 WI App 237, 267 Wis.2d 759, 672 N.W.2d 156. There, we held, without qualification, that a certified driving record from the Wisconsin DOT is “admissible and sufficient” to prove a defendant's OWI repeater status beyond a reasonable doubt. Id., ¶ 16; see also id., ¶ 21.

¶ 12 In Van Riper, the defendant had two prior OWI convictions, one from Minnesota and the other from Wisconsin. Id., ¶ 5. The State offered Van Riper's certified Wisconsin DOT driving record, which showed these convictions, as proof of his prior OWIs. Id. This court held that the circuit court properly admitted this evidence and that “such evidence established Van Riper's repeater status as an element of the offense beyond a reasonable doubt.” Id., ¶ 21. We further stated that “certainly a certified DOT driving record is admissible and sufficient to prove the status of an alleged repeat offender in a PAC prosecution.” Id., ¶ 16 (citing and discussing State v. Spaeth, 206 Wis.2d 135, 556 N.W.2d 728 (1996) ). Specifically, we stated, “[h]ere, a certificate bearing the State of Wisconsin DOT seal and the signature of the [Department of Motor Vehicles] administrator accompanies Van Riper's DOT driving record. Both Wisconsin case law and statutes support the admission of this certified document as proof of Van Riper's prior convictions at trial.” Id., ¶ 18, 556 N.W.2d 728. Moreover, we concluded the fact “[t]hat one of Van Riper's convictions occurred in Minnesota does not change our decision.” Id., ¶ 19, 556 N.W.2d 728 (noting that the Wisconsin DOT is statutorily required to maintain a record of all matters that affect the counting of prior convictions for PAC purposes).

¶ 13 Van Riper controls the sufficiency of the State's proof of Jewett's prior OWI convictions. The State offered, and the circuit court accepted into evidence, Jewett's certified Wisconsin DOT driving record. As in Van Riper, the record contains the official seal of the Wisconsin DOT and the...