State v. Reinhard
| Decision Date | 05 September 2001 |
| Docket Number | 01-0767 |
| Parties | This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. SeeWis. Stat. § 808.10 and Rule 809.62. State of Wisconsin, Plaintiff-Respondent, v. Bernie M. Reinhard, Defendant-Appellant.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Waukesha County: MICHAEL O. BOHREN, Judge. Affirmed.
¶1.
The guilty-plea-waiver rule blocks Bernie M. Reinhard's challenge to the retroactive application of Wis. Stat. §346.65(2)(b) that results in Reinhard being charged with a second offense operating while under the influence of an intoxicant (OWI). Therefore, we affirm.2
¶2. On November 2, 1993, Reinhard was convicted of a first offense OWI. At that time, Wis. Stat. § 346.65(2)(b) (1993-94) provided that in computing prior convictions for the purpose of enhancing a sentence for a second OWI offense, "the total number of suspensions, revocations, and convictions counted under s. 343.307(1) ... in a 5-year period" were to be considered. (Emphasis added.) That section was amended in 1998 to provide that "the total number of suspensions, revocations, and convictions counted under s. 343.307(1) ... in a 10-year period" were to be considered. 1997 Wis. Act 237, § 527yg (emphasis added). The amendment to the statute was effective on
January 1, 1999.3 Id. at § 9448(2f). Reinhard was arrested for OWI on
June 25, 2000, and was charged with a second offense because of his prior conviction for OWI on November 2, 1993.
¶3. Reinhard filed a motion to dismiss the criminal complaint charging a second offense OWI on the grounds that having successfully driven for five years from the date of his first offense without a second or subsequent OWI conviction, he had a vested right not to face criminal penalties. He argued that the retroactive application of the amendment to Wis. Stat. §346.65(2)(b) to include his first conviction violated the ex post facto clause and the due process clause of the federal and state constitutions. The trial court denied Reinhard's motion.
¶4. Immediately after the denial of his motion, Reinhard's counsel advised the court:
We would like to enter a conditional no contest plea to the OWI, reserve our right to challenge your rulings on appeal and ask the court [to] withhold sentence while we appeal it to the appellate court.
The court took a brief adjournment to permit Reinhard and his counsel to complete a guilty plea questionnaire. When the court reconvened, it engaged in a plea colloquy with Reinhard. In the colloquy, the court assured itself that Reinhard understood that he was entering a no contest plea to a criminal charge and that he understood he was giving up the constitutional rights specified in the plea questionnaire. The court also quizzed Reinhard on whether he understood that the motions that had been denied were filed by Reinhard's counsel as After hearing recommendations from the State and defense counsel, the court imposed a sentence consistent with conviction for a second offense OWI. Reinhard now appeals.
¶5. We do not address the substantive issues Reinhard raises on appeal.4 It is a general principle of law that a plea of guilty, voluntarily and understandingly made, constitutes a waiver of nonjurisdictional defects and defenses, including claims of constitutional dimension.5 State v. Riekkoff, 112 Wis. 2d 119, 122-23, 332 N.W.2d 744 (1983). Waiver also applies in the case of no contest pleas. State v. Princess Cinema, 96 Wis. 2d 646, 651, 292 N.W.2d 807 (1980). Reinhard contends that the guilty-plea-waiver rule does not apply because his constitutional challenges "focus on the authority, capacity, power, and right by which the lower court compelled him to come before it and whether the court could hear and determine the controversy and pronounce sentence." For the following reasons, we conclude that the guilty-plea-waiver rule applies.
¶6. First, Reinhard cannot avoid the guilty-plea-waiver rule by entering a "conditional plea" and reserving the right to appeal. InRiekkoff, 112 Wis. 2d at 122, the issue was whether the parties and the trial court may stipulate to the right of appellate review. The supreme court held that "even the express reservation of the right to appeal a prior ruling will not survive a guilty plea in respect to a matter which clearly would be waived absent the reservation." Id. at 127. Thus, we determine that Reinhard could not enter a conditional plea in an attempt to reserve his right to appeal and avoid the guilty-plea-waiver rule.
¶7. Second, the guilty-plea-waiver rule does not apply when a defendant raises a challenge to the validity of a statute that calls into question the subject matter jurisdiction of the court.6 State ex rel. Skinkis v. Treffert, 90 Wis. 2d 528, 538-39, 280 N.W.2d 316 (Ct. App. 1979). Reinhard vehemently argues that his constitutional challenge to the retroactive application of the ten-year look-back period of Wis. Stat. § 346.65(2)(b) is a challenge to the jurisdiction of the court. While Reinhard labels his attack as a constitutional challenge to the jurisdiction of the court, that label does not bind us. "Simply to label a claimed error as constitutional does not make it so." State v. Scherreiks, 153 Wis. 2d 510, 520, 451 N.W.2d 759 (Ct. App. 1989). The penalty structure of §346.65(2)(b) has been attacked many times, and each time the appellate court has concluded that it is "nothing more than a penalty enhancer similar to a repeater statute which does not in any way alter the nature of the substantive offense, i.e., the prohibited conduct, but rather goes only to the question of punishment." State v. Foust, 214 Wis. 2d 568, 574, 570 N.W.2d 905 (Ct. App. 1997) (emphasis added); see also State v. Wideman, 206 Wis. 2d 91, 98, 556 N.W.2d 737 (1996). Thus, we determine that Reinhard's challenge to the application of the statute does not call into question the subject matter jurisdiction of the court and the guilty-plea-waiver rule applies.
¶8. Third, we have held that under special circumstances, even if a defendant's constitutional challenge is not to the court's subject matter jurisdiction, he or she is nevertheless entitled to reassert the constitutional claims on appeal. SeeState v. Olson, 127 Wis. 2d 412, 427, 380 N.W.2d 375 (Ct. App. 1985). In Olson, we adopted the analysis of the United States Supreme Court inMenna v. New York, 423 U.S. 61 (1975) (per curiam):
The Menna Court explained that a guilty plea renders irrelevant constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not prevent a conviction, but, "[h]ere, however, the claim is that the State may not convict petitioner no matter how validly his factual guilt is established."
Olson, 127 Wis. 2d at 422. Reinhard does not fall under this exception because, despite the labels he attaches to the issues, he does not challenge the ability of the State to convict him of OWI-he only challenges the ability of the State to seek the imposition of criminal penalties. Thus, we conclude that Reinhard cannot reassert a nonjurisdictional constitutional challenge and the guilty-plea-waiver rule applies.
¶9. Reinhard maintains that if he is barred from challenging Wis. Stat. §346.65(2)(b) by the guilty-plea-waiver rule, his plea was defective and this case should be remanded to the trial court to permit him to withdraw his plea. The guilty-plea-waiver rule only applies if the defendant has entered a plea knowingly and understandingly. County of Racine v. Smith, 122 Wis. 2d 431, 434, 362 N.W.2d 439 (Ct. App. 1984). The record reflects that Reinhard's guilty plea was voluntary and intelligent. Reinhard acknowledged to the trial judge that he had reviewed the guilty plea questionnaire with his attorney and had signed that document. This alone would be sufficient to sustain a finding that the plea was knowing and voluntary. State v. Moederndorfer, 141 Wis. 2d 823, 827-29, 416 N.W.2d 627 (Ct. App. 1987). The trial judge here, however, engaged in a lengthy colloquy with Reinhard establishing a factual basis for concluding that Reinhard had indeed committed the alleged offenses and assuring that Reinhard:
(1) understood the elements of the crimes to which he was entering a no contest plea, (2) understood the penalties to which he was exposing himself, (3) was competent to understand his decision, (4) had reviewed his decision carefully with counsel, (5) was not acting under any threat or promise, (6) understood he was waiving those constitutional rights assured the criminally accused, and (7) was waiving the right to present any defenses. Thus, we determine that Reinhard entered his plea voluntarily and intelligently and the guilty-plea-waiver rule applies.
¶10. This does not end our analysis, however. The guilty-plea-waiver rule does not deprive us of our subject matter jurisdiction; rather, it is "a rule of administration and not of power." State v. Grayson, 165 Wis. 2d 557, 561, 478 N.W.2d 390 (Ct. App. 1991). We decline to deviate from the rule and consider Reinhard's challenge to the application of the ten-year look-back period for OWI...
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