State v. Jorgensen

• Citation: 2003 WI 105,264 Wis.2d 157,667 N.W.2d 318
• Decision Date: 11 July 2003
• Docket Number: No. 01-2690-CR.,01-2690-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Patty E. JORGENSEN, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

264 Wis.2d 157

2003 WI 105

667 N.W.2d 318

STATE of Wisconsin, Plaintiff-Respondent, v. Patty E. JORGENSEN, Defendant-Appellant-Petitioner.

No. 01-2690-CR.

Supreme Court of Wisconsin.

Oral argument February 18, 2003.

Decided July 11, 2003.

For the defendant-appellant-petitioner there were briefs and oral argument by Charles Bennett Vetzner, assistant state public defender.

For the plaintiff-respondent the cause was argued by Christopher G. Wren, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. JON P. WILCOX, J.

This is a review of an unpublished court of appeals decision, State v. Jorgensen, No. 01-2690-CR, unpublished slip op. (Wis. Ct. App. June 27, 2002),¹ in which the court of appeals affirmed a judgment of conviction and order denying a postconviction motion entered by the Dane County Circuit Court, Steven D. Ebert, Judge. The defendant, Patty Jorgensen, contends that the court of appeals erred in affirming her conviction for operating a motor vehicle while intoxicated, fourth offense, and the denial of her postconviction motion. She now seeks relief from this court on the ground that the sentencing guidelines established by the Fifth Judicial District for certain "operating while intoxicated" offenses under the authority of Wis. Stat. § 346.65(2m)(a), are unconstitutional. Jorgensen claims the circuit court violated her rights to due process and equal protection of the laws by relying upon the local guidelines authorized by § 346.65(2m)(a). She asserts the guidelines operate to increase disparity in sentencing based only on the geographic location of the offense. Jorgensen further claims that the guidelines relied upon by the court exceed the authority granted by the legislature in § 346.65(2m)(a) and that the guidelines, on their face, are inapplicable to her.

¶ 2. We hold that the sentencing guidelines established by the Fifth Judicial District are authorized by Wis. Stat. § 346.65(2m)(a). We further conclude that under the plain language of § 346.65(2m)(a), the sentencing guidelines apply only to Wis. Stat. § 346.63(1)(b), not Wis. Stat. § 346.63(1)(a), under which Jorgensen was sentenced. However, because circuit courts have a great amount of sentencing discretion, we find that reference to the sentencing guidelines in a § 346.63(1)(a) case does not constitute error. That being the case, a defendant such as Jorgensen sentenced under § 346.63(1)(a) may potentially be sentenced by a court referring to the sentencing guidelines established for § 346.63(1)(b). Therefore, we must address Jorgensen's argument that these guidelines are unconstitutional. We agree with the court of appeals' conclusion that the sentencing guidelines are constitutional and, accordingly, we affirm.

I. BACKGROUND

¶ 3. For purposes of this appeal, the following facts are not in dispute. In the early morning hours of May 21, 1999, a witness found Jorgensen in her vehicle in a ditch near his home and summoned police. Responding officers found Jorgensen asleep in the driver's seat of her vehicle. Jorgensen failed field sobriety tests administered by the police, and she was arrested for operating a vehicle while intoxicated. Subsequent blood testing showed that Jorgensen's blood alcohol content was .276.

¶ 4. Jorgensen was charged with violating Wis. Stat. § 346.63(1)(a) and Wis. Stat. § 346.63(1)(b).² She utilized her right to a jury trial. She stipulated to many of the facts and the only issue remaining for jury determination was whether or not Jorgensen was the person operating the vehicle. At trial, Jorgensen claimed that another person was driving.

¶ 5. A jury found Jorgensen guilty of operating a vehicle while under the influence of an intoxicant (OWI) in violation of Wis. Stat. § 346.63(1)(a) and of operating a motor vehicle while having a prohibited blood alcohol concentration (PAC) in violation of Wis. Stat. § 346.63(1)(b), either of which would constitute her fourth "operating under the influence" offense.

¶ 6. Section 346.63(1)(c) of the Wisconsin Statutes provides that although a defendant may be charged and prosecuted for both OWI and PAC, violations of §§ 346.63(1)(a) and (b), respectively, a defendant may not be "convicted" and sentenced for both OWI and PAC if the charges arise out of the same incident or occurrence. Rather, "[i]f the person is found guilty of both pars. (a) and (b) for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under ss. 343.30(1q) and 343.305." Wis. Stat. § 346.63(1)(c). Jorgensen's judgment of conviction was entered on the OWI count, § 346.63(1)(a).

¶ 7. The sentencing guidelines at issue, the "Fifth Judicial District OWI Sentencing Guidelines," were established by the Chief Judge of the Fifth Judicial District under the authority granted by the legislature in Wis. Stat. § 346.65(2m)(a).³ For a fourth offense such as the one here, the guidelines are provided in a table format and include factors to consider and corresponding sentencing recommendations. The horizontal headings on the table are: "BAC Levels," "Minimum Driving No Accident," and "Aggravated Driving Accident or Injury Bad Driving Record." The specific guideline relevant to sentencing in this case provided that for a fourth offense, a defendant with a blood alcohol content level of .20 or above faces periods of incarceration with ranges of 60 to 150 days and 90 days to one year, depending upon the court's determination of the specific circumstances surrounding the offense.

¶ 8. At sentencing on September 7, 2000, both the prosecutor and defense counsel made arguments based on these sentencing guidelines. Explicitly noting guideline factors, the State requested an eight- to nine-month sentence. Defense counsel did not dispute application of the guidelines at the time. Rather, Jorgensen's counsel noted the guideline provisions and argued that a three-month sentence was more appropriate under the circumstances. After hearing these arguments, the circuit court, explicitly referencing the sentencing guidelines, sentenced Jorgensen to seven months in jail. ¶ 9. Jorgensen filed a motion for postconviction relief on several grounds, including the issue now before this court, whether the circuit court erroneously relied upon local sentencing guidelines because § 346.65(2m)(a), the authorizing statute, is unconstitutional. The circuit court denied the motion.

¶ 10. Jorgensen appealed from both the judgment of conviction and the order denying her motion for postconviction relief. She again claimed that the sentencing guidelines relied upon by the circuit court were unconstitutional.⁴ The court of appeals affirmed the circuit court, holding that the circuit court did not violate Jorgensen's due process and equal protection rights by using the local sentencing guidelines. On October 21, 2002, this court accepted Jorgensen's petition for review.

II. STANDARD OF REVIEW

¶ 11. The question before this court is whether the circuit court erred in using the Fifth Judicial District sentencing guidelines to sentence Jorgensen. We review the circuit court's exercise of discretion in sentencing Jorgensen. More specifically, we look at the legal bases for the circuit court's sentencing determination.

[1, 2]

¶ 12. Sentencing falls within the discretionary authority of the circuit court. McCleary v. State, 49 Wis. 2d 263, 277, 182 N.W.2d 512 (1971); State v. Eckola, 2001 WI App 295, ¶ 4, 249 Wis. 2d 276, 638 N.W.2d 903. This court has held that it "will not interfere with the circuit court's sentencing decision unless the circuit court erroneously exercised its discretion." State v. Lechner, 217 Wis. 2d 392, 418-19, 576 N.W.2d 912 (1998); see also Eckola, 249 Wis. 2d 276,

¶ 4. The circuit court erroneously exercises its discretion if the exercise of discretion is based on an error of law. State v. Davis, 2001 WI 136, ¶ 28, 248 Wis. 2d 986, 637 N.W.2d 62; State v. Hutnik, 39 Wis. 2d 754, 763, 159 N.W.2d 733 (1968).

[3, 4]

¶ 13. In reviewing the circuit court's sentencing determination in this case, we must also interpret the provisions of § 346.65(2m)(a). Statutory interpretation is reviewed de novo. Burg v. Cincinnati Cas. Ins. Co., 2002 WI 76, ¶ 15, 254 Wis. 2d 36, 645 N.W.2d 880. The first step in statutory interpretation is to look at language of the statute. Id., ¶ 16.

[5-7]

¶ 14. If we find that the sentencing guidelines established by the Fifth Judicial District do not exceed the authority granted by the legislature in Wis. Stat. § 346.65(2m)(a), the analysis must focus on the constitutionality of that statute. The constitutionality of a statute is a question of law which this court reviews de novo. State v. McManus, 152 Wis. 2d 113, 129, 447 N.W.2d 654 (1989); Employers Health Ins. Co. v. Tesmer, 161 Wis. 2d 733, 737, 469 N.W.2d 203 (Ct. App. 1991). Statutes are presumed constitutional, and the party bringing the constitutional challenge bears the burden of proving the statute unconstitutional beyond a reasonable doubt. McManus, 152 Wis. 2d at 129 (internal citation omitted); Stanhope v. Brown County, 90 Wis. 2d 823, 837, 280 N.W.2d 711 (1979); State v. Hanson, 182 Wis. 2d 481, 485, 513 N.W.2d 700 (Ct. App. 1994); Employers Health, 161 Wis. 2d at 737. If there is no suspect classification or fundamental right involved, "`it is the court's obligation to locate or to construct, if possible, a rationale that might have influenced the legislature and that reasonably upholds the legislative determination.'" Tomczak v. Bailey, 218 Wis. 2d 245, 264, 578 N.W.2d 166 (1998) (internal citation omitted); McManus, 152 Wis. 2d at 129 ("`If the court can conceive any facts on which the legislation could reasonably be based, it must hold the legislation constitutional.'") (quoting State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 506, 261 N.W.2d 434 (1978)); see also Employers Health, ...