State v. Konrath
| Decision Date | 22 May 1998 |
| Docket Number | No. 96-1261-CR,96-1261-CR |
| Citation | 218 Wis.2d 290,577 N.W.2d 601 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Lance Terry KONRATH, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs by Ralph A. Kalal and Kalal & Associates, Madison and oral argument by Ralph A. Kalal.
For the plaintiff-respondent the cause was argued by James M. Freimuth, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.
This case is on review from an unpublished decision of the court of appeals 1 affirming a judgment of the circuit court. The Waukesha County Circuit Court, Joseph E. Wimmer, Judge, denied Lance Terry Konrath's ("Konrath") motion to vacate the order for seizure of his motor vehicle in accord with Wis. Stat. § 346.65(6)(1993-94), 2 resulting from Konrath's fifth conviction for operating a motor vehicle under the influence of an intoxicant contrary to Wis. Stat. § 346.63(1)(a).
¶2 In his motion to vacate the seizure order, Konrath raised three constitutional challenges to the impending seizure and possible forfeiture of his motor vehicle. First, Konrath argued that Wis. Stat. § 346.65(6) violates Article I, section 12 of the Wisconsin Constitution by permitting forfeiture of estate because the statute does not require a nexus between the motor vehicle and the crime from which the seizure and forfeiture result. 3 Second, Konrath argued that § 346.65(6) violates the Double Jeopardy Clauses of the Fifth and Fourteenth Amendments to the United States Constitution by permitting successive punishments because the statute does not require a nexus between the motor vehicle and the crime from which the seizure and forfeiture result. 4 Third, Konrath argued that § 346.65(6) violates the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution by its failure to provide notice and hearing prior to seizure of the motor vehicle or a prompt post-deprivation hearing. 5
¶3 In its response to Konrath's motion, the State did not address Konrath's constitutional claims but instead objected to the timeliness of the motion. The State argued in part that Konrath's motion had been brought pursuant to Wis. Stat. § 974.06. 6
¶4 The circuit court determined that Konrath had not specifically sought relief under Wis. Stat. § 974.06, and that the motion could not be brought in accord with § 974.06 in any event because that statutory section applies to appeals and post-conviction relief for a prisoner in custody. The circuit court dismissed Konrath's motion to vacate the seizure order because it was untimely under Wis. Stat. § 974.02 7 and no appeal had been taken from the original sentence. Konrath appealed.
¶5 The court of appeals affirmed the circuit court's order denying Konrath's motion to vacate the seizure order. The court of appeals concluded that Konrath had failed to raise his constitutional claims through a timely appeal from the judgment of conviction in accord with Wis. Stat. § 974.02. The court of appeals noted that the forfeiture proceeding, which would commence after seizure of the motor vehicle, would afford Konrath another opportunity to raise any constitutional challenges to the seizure and forfeiture.
¶6 We conclude that Konrath lacks standing to assert a claim of forfeiture of estate as prohibited by Article I, section 12 of the Wisconsin Constitution. Wisconsin Stat. § 346.65(6) is constitutional as applied to Konrath, since the forfeiture is civil in nature and there is a nexus between the motor vehicle to be seized and forfeited and the crime. Because § 346.65(6) is constitutionally applied to Konrath, and his claims do not implicate the First Amendment to the United States Constitution, Konrath may not assert a facial overbreadth challenge that § 346.65(6) may be unconstitutionally applied in instances not presently before this court.
¶7 Similarly, Konrath lacks standing to assert a violation of the Double Jeopardy Clauses of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, section 8 of the Wisconsin Constitution. 8 The forfeiture of Konrath's motor vehicle under Wis. Stat. § 346.65(6) is an in rem civil forfeiture. In rem civil forfeitures are distinct from punishment for a criminal offense and, therefore, the Double Jeopardy Clause prohibiting multiple punishments is inapplicable. Thus, since § 346.65(6) is constitutional as applied to Konrath, and his claims do not implicate the First Amendment to the United States Constitution, Konrath lacks standing to assert a facial overbreadth challenge that § 346.65(6) may be unconstitutionally applied in instances not presently before this court.
¶8 Finally, we reject Konrath's claim that his rights under the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, section 1 of the Wisconsin Constitution have been violated. 9 Wisconsin Stat. 346.65(6) sets forth procedural due process protections including providing notice of the seizure and a hearing prior to forfeiture of the motor vehicle. Moreover, Konrath was notified of the impending seizure and possible forfeiture on several occasions. Such notification included written notice in the complaint, the amended complaint, the second amended complaint, and the judgment of conviction. Konrath was also notified orally at the status conference, as well as at the plea and sentencing hearing. In addition, Konrath had an opportunity to be heard at the status conference and the plea and sentencing hearing before the circuit court. At each of these hearings, the circuit court directly discussed seizure and forfeiture of the motor vehicle and Konrath had an opportunity to respond. Furthermore, this case presents the limited extraordinary circumstances under which immediate seizure of Konrath's motor vehicle is constitutionally permissible without preseizure notice and hearing. After Konrath's motor vehicle is seized, 10 he will again be provided notice of the seizure, and a forfeiture hearing will be held at which time Konrath will be given yet another opportunity to be heard on any claims in relation to the seizure and forfeiture of his motor vehicle.
¶9 The facts are undisputed for purposes of our review. On November 15, 1993, the State filed a complaint charging Konrath with four counts of criminal conduct, namely: (1) operating a motor vehicle while under the influence of an intoxicant (fifth offense) contrary to Wis. Stat. § 346.63(1)(a); (2) operating a motor vehicle with a prohibited alcohol concentration (fifth offense) contrary to Wis. Stat. § 346.63(1)(b); (3) operating a motor vehicle after license revocation (third offense) contrary to Wis. Stat. § 343.44(1), and; (4) fleeing from a traffic officer contrary to Wis. Stat. § 346.04(3). 11
¶10 Pursuant to a negotiated plea agreement, Konrath pled guilty to the count of operating a motor vehicle while intoxicated (fifth offense) and to the count of fleeing a traffic officer. In exchange, the State moved to dismiss the charges of operating a motor vehicle with a prohibited alcohol concentration and operating a motor vehicle after revocation. 12
¶11 The plea and sentencing hearing was held on June 9, 1995. Prior to the entry of his plea, the circuit court engaged in a lengthy colloquy with Konrath to ensure that Konrath understood the nature of the charges and the potential penalties associated with pleading guilty. As part of this dialogue, Konrath indicated to the circuit court that he was aware that pleading guilty to operating while intoxicated as a fifth offense would result, in part, in seizure and forfeiture of Konrath's motor vehicle in accord with Wis. Stat. § 346.65(6).
¶12 The circuit court accepted Konrath's guilty plea and convicted him of the counts of operating a motor vehicle while intoxicated and fleeing a traffic officer. With respect to the charge of operating while intoxicated, the circuit court imposed a fine of $2,000 plus costs, revocation of Konrath's license for three years, alcohol assessment, and a 12-month jail term. In addition, the circuit court ordered "that a vehicle be forfeited pursuant to the statute." The judgment of conviction was entered on June 9, 1995. The judgment stated in part that the "court orders that a vehicle be forfeited."
¶13 On June 17, 1995, the circuit court entered a written order for seizure of Konrath's motor vehicle, namely, the 1988 Pontiac Firebird that had been identified in the complaint and the amended complaints as the vehicle Konrath had been driving during the incident from which the charged offenses arose. Konrath brought a motion to vacate the seizure order, arguing that the order was unconstitutional because it resulted in forfeiture of estate, because it subjected him to double jeopardy, and because his procedural due process rights had been violated.
¶14 As set forth previously in this opinion, the circuit court denied Konrath's motion on procedural grounds. The circuit court first concluded that the motion did not qualify as a post-conviction motion pursuant to Wis. Stat. § 974.06. The circuit court also concluded that the motion was untimely because it was not filed within the time limitations for a direct criminal appeal pursuant to Wis. Stat. § 974.02. Finally, the circuit court concluded that the forfeiture procedure to be commenced under...
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