State v. Neill
Decision Date | 14 February 2020 |
Docket Number | No. 2018AP75-CR,2018AP75-CR |
Citation | 2020 WI 15,390 Wis.2d 248,938 N.W.2d 521 |
Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Charles L. NEILL, IV, Defendant-Appellant-Petitioner. |
Court | Wisconsin Supreme Court |
For the plaintiff-respondent, there was a brief filed by Michael C. Sanders, assistant attorney general, with whom on the brief was Joshua L. Kaul attorney general there was an oral argument by Michael C. Sanders.
For the defendant-appellant-petitioner, there were briefs filed by Pamela Moorshead, assistant state public defender. There was an oral argument by Pamela Moorshead.
¶1 Charles L. Neill, IV seeks review of the court of appeals decision1 affirming the judgment and order upholding his sentence for third-offense OWI.2 This appeal involves only the $4,800 fine Neill was ordered to pay. The issue presented requires the interpretation of the penalty enhancers in Wisconsin's OWI statutes. Specifically, we consider how the penalty enhancers' provisions requiring "doubling" and "quadrupling" of the fine for a third-offense OWI should be determined when multiple penalty enhancers apply. Neill faced two penalty enhancers: (1) having a minor passenger in his car, which requires doubling of the fine, and (2) driving with a high blood alcohol concentration, which requires quadrupling of his fine.
¶2 The court of appeals decided that the first penalty enhancer changes the "applicable minimum" fine Wis. Stat. § 346.65(2)(am) 3 sets for third-offense OWI, and as a result, when applying the second penalty enhancer, a court must use this already-enhanced applicable minimum instead of the specific applicable minimum for third-offense OWI contained in § 346.65(2)(am)3.
¶3 We reject this interpretation. The statute's text requires that each penalty enhancer use the specific "applicable minimum" contained in Wis. Stat. § 346.65(2)(am) 3, which for third-offense OWI is $600. Accordingly, the court of appeals erred when it affirmed the $4,800 fine imposed by the circuit court. Because the text of § 346.65(2)(am) 3 sets the minimum applicable fine at $600, both penalty enhancers must be calculated using $600 as the applicable minimum.
¶4 Neill's first penalty enhancer for OWI with a minor passenger, Wis. Stat. § 346.65(2)(f) 2, requires "the applicable fine" be doubled. Accordingly, the circuit court should have started with $600 and multiplied it by two for an enhanced fine of $1,200. Neill's second penalty enhancer for OWI with a high BAC, Wis. Stat. § 346.65(2)(g) 3, requires "the applicable fine" in § 346.65(2)(am) 3 be quadrupled. Consequently, the circuit court should have started with $600 and multiplied it by four for an enhanced fine of $2,400. These two fines total $3,600, not $4,800. We reverse the decision of the court of appeals and remand with directions to amend the judgment to require Neill to pay a fine of $3,600.
¶5 In July 2016, Neill was arrested for OWI. At the time, he had his one-year-old child in the car and had a blood alcohol concentration of .353 percent. The State charged Neill with third-offense OWI, based on his prior convictions from 2005 and 2008. The Complaint and the Information listed the charge as: third-offense OWI "with a minor child in the vehicle." These documents then listed the .353 percent blood alcohol concentration under "penalty enhancer."
¶6 Neill pled guilty to third-offense OWI and the circuit court imposed and stayed a sentence of 15 months initial confinement followed by 9 months of extended supervision. The circuit court placed Neill on probation for 3 years with 6 months jail time as a condition of probation. The circuit court imposed a fine of $4,800.
¶7 During sentencing, defense counsel objected to the $4,800 fine:
¶8 The circuit court entered judgment imposing a fine of $4,800. In October 2017, Neill filed a postconviction motion asking the circuit court to decrease the $4,800 fine. The motion alleged the circuit court failed to use the $600 applicable minimum from the statute in assessing the fine and instead incorrectly used the $1,200 applicable minimum alleged in the Complaint. As noted, the Complaint listed the crime as "Operating a motor vehicle while intoxicated – Third Offense, with a minor child in the vehicle" and listed a single penalty enhancer for high BAC. The Complaint listed the minimum fine as $1,200. Neill's motion asserted that having a minor child in the car is a penalty enhancer—that the offense itself is OWI-third, and as a result of the misstatement in the Complaint, the circuit court incorrectly used $1,200 as the minimum fine instead of $600. Neill's postconviction motion argued that only the greater penalty enhancer should apply because the lesser penalty enhancer should be subsumed within the greater. In other words, because the doubled penalty enhancer resulted in a $1,200 fine and the quadrupled penalty enhancer resulted in a $2,400 fine, Neill argued he should have to pay only the greater of the two—$2,400.
¶9 The circuit court acknowledged that it incorrectly relied on the Complaint instead of the OWI statutes in computing the fine:
Viewing the complaint in isolation, it appears that operating a motor vehicle while intoxicated – third offense, with minor child in vehicle is a criminal offense in and of itself, but upon a review of the statutes, it becomes clear that the crime is operating a motor vehicle [while] intoxicated (3rd offense) and that "with minor in vehicle" is a penalty enhancer, which not only doubles the minimum and maximum penalties but also converts the offense from a misdemeanor to a felony. Although the State did not charge the "with minor child in vehicle" provision as a penalty enhancer, presumably for purposes of prosecuting this case in felony court, that is essentially what it is, and therefore, the complaint does not control the outcome of [the fine in] this case.
¶10 Nonetheless, the circuit court disagreed with Neill's position that the lesser fine is simply subsumed within the greater fine. The circuit court said both penalty enhancers should be applied under State v. Beasley, 2004 WI App 42, ¶14, 271 Wis. 2d 469, 678 N.W.2d 600 ( ), and refused to adopt Neill's position because doing so would give effect to only one of the penalty enhancers. Without further explanation, the circuit court found the proper fine to be $4,800.
¶11 Neill appealed the circuit court's decision to the court of appeals, which affirmed in a 2-1 decision. State v. Neill, 2019 WI App 4, 385 Wis. 2d 471, 922 N.W.2d 861. The majority of the court of appeals held that application of the first penalty enhancer "altered" the applicable minimum fine starting point. Id., ¶23. In other words, once the first penalty enhancer has been applied, a court uses the enhanced number instead of the $600 when it applies the second penalty enhancer. Because the first penalty enhancer doubled the $600 to $1,200, the court of appeals concluded the $1,200 must be used as the starting number when...
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