State v. Matke

• Decision Date: 09 December 2004
• Docket Number: No. 03-2278-CR.,03-2278-CR.
• Citation: 278 Wis.2d 403,692 N.W.2d 265,2005 WI App 4
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Brandon J. MATKE, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

278 Wis.2d 403

2005 WI App 4

692 N.W.2d 265

STATE of Wisconsin, Plaintiff-Respondent, v. Brandon J. MATKE, Defendant-Appellant.¹

No. 03-2278-CR.

Court of Appeals of Wisconsin.

Submitted on briefs May 6, 2004.

Decided December 9, 2004.

On behalf of the defendant-appellant, the cause was submitted on the briefs of James B. Connell of Crooks, Low & Connell, S.C., Wausau.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Michael C. Sanders, assistant attorney general, and Peggy A. Lautenschlager, attorney general.

Before Deininger, P.J., Vergeront and Higginbotham, JJ.

¶ 1. DEININGER, P.J.

Brandon Matke appeals a judgment that convicted him of operating a motor vehicle while under the influence of an intoxicant (OMVWI) and imposed a sentence for sixth-offense OMVWI. He claims the trial court erred in sentencing him for a sixth offense because, at the time he committed the instant offense, he had only three prior OMVWI convictions. We conclude that, because Matke had five prior OMVWI convictions at the time of sentencing, the trial court properly sentenced him as a six-time offender. We also reject Matke's claim that the trial court erroneously exercised its discretion in ordering his sentence for the present offense to be consecutive to any sentences he was then serving. Accordingly, we affirm the appealed judgment.

BACKGROUND

¶ 2. Matke committed his present OMVWI offense on June 19, 2001. At that time, WIS. STAT. § 346.65(2)(d) (2001-02)² provided that a fourth-offense OMVWI was punishable by imprisonment "for not less than 60 days nor more than one year in the county jail." A fifth or subsequent OMVWI conviction, however, was punishable as a felony, with a specified range of imprisonment of "not less than 6 months nor more than 5 years." Section 346.65(2)(e). The present action began as a misdemeanor prosecution for fourth-offense OMVWI but ended with Matke's conviction and sentencing for a sixth offense. The court imposed a four-year prison sentence, consisting of two years confinement followed by two years extended supervision, the same to be served consecutive to any sentences Matke was then serving.

¶ 3. Matke challenges only the sentence imposed for sixth-offense OMVWI. His principal claim of error is grounded on the order in which he committed and was convicted of six OMVWI offenses between 1998 and 2003. He makes no claim that the guilty verdict for his present OMVWI offense should be set aside. Accordingly, we provide no details of Matke's present offense or of the jury trial at which he was found guilty. Instead, we present the relevant chronology of his six OMVWI offenses:

February 2, 1998: First OMVWI committed.

February 10, 1998: Second OMVWI committed.

February 28, 1998: Third OMVWI committed.

May 20, 1998: Convicted of 2-10-98 and 2-28-98 offenses.

June 3, 1999: Convicted of 2-2-98 offense.

June 19, 2001: Commits present OMVWI, originally charged as fourth offense and prosecuted as misdemeanor.

July 14, 2001: Commits new OMVWI offense.

December 6, 2001: Convicted of 7-14-01 offense, sentenced as fourth offender.

December 13, 2001: State dismisses misdemeanor action, files felony complaint charging present (6-19-01) offense as fifth offense.

August 10, 2002: Commits new OMVWI offense.

October 15, 2002: Convicted of 8-10-02 offense, sentenced as fifth offender.

January 3, 2003: Amended information filed, charging present (6-19-01) as sixth offense.

January 23, 2003: Convicted of 6-19-01 offense, sentenced as sixth offender.

ANALYSIS

[1, 2]

¶ 4. Matke first argues that the trial court erred in sentencing him as a six-time OMVWI offender because "conduct which was a misdemeanor when committed cannot be transformed into a felony by subsequent conduct." His claim principally raises a question of statutory interpretation, to wit, should the number of prior OMVWI convictions for purposes of penalty enhancement under WIS. STAT. § 346.65(2) be determined as of the date that an offense is committed or as of the date of sentencing for the offense?³ We must therefore decide a question of law, which we do independently of the trial court's analysis and conclusions. State v. Ludeking, 195 Wis. 2d 132, 138, 536 N.W.2d 392 (Ct. App. 1995),partially overruled on other grounds by State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662. Matke also suggests that the trial court's interpretation results in a violation of his constitutional right of due process, a question we also decide de novo. State v. Navarro, 2001 WI App 225, ¶ 6, 248 Wis. 2d 396, 636 N.W.2d 481.

¶ 5. How and when to count prior OMVWI convictions for purposes of penalty enhancement under WIS. STAT. § 346.65(2) has been settled law since at least 1981, when the supreme court decided State v. Banks, 105 Wis. 2d 32, 313 N.W.2d 67 (1981). The court distinguished the enhancement scheme under the OMVWI statute from that of "general repeater statutes" such as WIS. STAT. § 939.62. Id. at 44-45. Then, as now, § 346.65(2) did not specify that convictions for prior offenses must precede the commission of the present offense, as does § 939.62, the "general repeater" statute. Id. at 45-47. The statutory language examined in Banks provided, much as it does now, that enhanced penalties apply "if the total of ... convictions for [OMVWI] equals" a certain number within a specified period.⁴Id. at 45. The court concluded that the language evinced the legislature's intent that enhanced penalties apply when the requisite number of convictions have accumulated within the period specified "regardless of the order in which the offenses were committed and the convictions were entered." Id. at 48. The court also rejected the defendant's claim of a due process violation in so construing the statute, concluding that the statute gives "ample notice" to a driver who wishes to avoid enhanced penalties that additional OMVWI offenses will result in enhanced penalties upon successive convictions. Id. at 50-51.

[3, 4]

¶ 6. A year later, the supreme court concluded in State v. McAllister, 107 Wis. 2d 532, 319 N.W.2d 865 (1982), that the number of a defendant's prior OMVWI convictions to be counted for penalty enhancement purposes is not an element of the offense of OMVWI. Thus, in order to obtain a conviction for the crime of second-offense OMVWI, the State need only prove beyond a reasonable doubt that the defendant (1) operated a motor vehicle (2) while under the influence of an intoxicant. Id. at 535. The number of prior convictions for penalty enhancement purposes need only "be proven by certified copies of conviction or other competent proof offered by the state before sentencing." Id. at 539.

¶ 7. After the OMVWI convictions reviewed in Banks and McAllister, the legislature created the offense of operating a motor vehicle with a "prohibited alcohol concentration" (PAC).⁵See WIS. STAT. § 346.63(1)(b) (1981-82). The prohibited concentration was initially established as being "0.1% or more by weight of alcohol in the person's blood or 0.1 grams or more of alcohol in 210 liters of the person's breath." Id. The legislature subsequently amended the definition of PAC to provide that the 0.1 level applied to persons having one or no prior OMVWI/PAC convictions, but that after two or more convictions, the prohibited level dropped to 0.08.⁶See WIS. STAT. § 340.01(46m) (1991-92). We concluded in Ludeking that the bifurcated PAC definition did not create simply a "repeater statute or penalty enhancer," rather, the statutory definition served to define an element of the offense for a defendant with two or more prior convictions. Ludeking, 195 Wis. 2d at 140. Accordingly, we held that, in order to convict someone of a third or subsequent PAC offense at the reduced level of 0.08, the State needed to prove that, "at the time the defendant ... operated a motor vehicle, he had two or more convictions ...." Id. at 136 n.6.

¶ 8. The supreme court agreed with our conclusion in State v. Alexander, 214 Wis. 2d 628, 640, 571 N.W.2d 662 (1997). The court concluded, however, that a defendant could avoid having the jury learn of his or her prior convictions by stipulating to that element. Id. at 651. To the extent that Matke relies on Ludeking and Alexander to support his claim that only convictions occurring prior to his commission of the present OMVWI offense may be used to enhance the penalties for committing it, he is mistaken. His present conviction was for OMVWI, not PAC, and the statute under review is WIS. STAT. § 346.65(2), a penalty enhancement statute, not WIS. STAT. § 340.01(46m), which defines an element of certain PAC offenses.

[5]

¶ 9. Thus, the holdings in Banks and McAllister, not those in Ludeking and Alexander, govern the present facts, requiring that we affirm Matke's sentence as a six-time OMVWI offender. There can be little question that, under Banks and McAllister, the proper time to determine the number of a defendant's prior convictions for sentence enhancement purposes is at sentencing, regardless of whether some convictions may have occurred after a defendant committed the present offense. Not only must we apply the supreme court's interpretation of WIS. STAT. § 346.65(2), we are also bound by its conclusion that no due process violation occurs simply because the severity of a defendant's punishment may depend on events that occur after he or she committed the present offense. See Banks, 105 Wis. 2d at 50-51.

¶ 10. But for this court's decision in State v. Skibinski, 2001 WI App 109, 244 Wis. 2d 229, 629 N.W.2d 12, our analysis of Matke's first claim of error would be at an end. Matke points to Skibinski, however, which he claims, "like the decisions in Ludeking and Alexander, stands for the proposition that prior convictions are an element of the offense" of OMVWI. Therefore, according to Matke, in order to be counted for enhancement purposes, prior convictions "must be in existence at the time the [OMVWI] offense was...