State v. Socha
| Decision Date | 25 April 2023 |
| Docket Number | 2021AP1083-CR,2021AP2116-CR |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. James J. Socha, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEALS from orders of the circuit court for Milwaukee County: Nos. 2004CF7137, 2008CF6377, MILTON L. CHILDS, SR. and GLENN H. YAMAHIRO, Judges. Reversed and remanded with directions.
Before Brash, C.J., Dugan and White, JJ.
WHITE J.
¶1 James Socha, pro se, appeals from the trial and circuit courts' orders denying his postconviction motions seeking sentence modification.[1]In Socha's first case on appeal, he was convicted, upon a guilty plea, for operating a motor vehicle while under the influence of an intoxicant (OWI) as a tenth or subsequent offense, which was committed in December 2004. In his second case on appeal, Socha was convicted, upon a jury's verdict, for operating a motor vehicle while under the influence of an intoxicant (OWI) as a tenth or subsequent offense, which was committed in December 2008. Socha asserts in each case that the trial and circuit courts erred when it failed to modify his sentence after he presented evidence that multiple prior OWI convictions relied upon to impose his sentence had been vacated after he was sentenced.[2] Although we reject Socha's contention that his sentences should be automatically modified by commuting his sentence pursuant to Wis.Stat. § 973.13,[3] we conclude that Socha's allegations that some of his prior OWI conviction were lawfully vacated after he was sentenced in these cases sufficiently alleged a new factor such that if he meets his burden to prove that some of his prior convictions were lawfully vacated, it may warrant sentence modification. We reverse the trial and circuit courts' orders and remand with directions to reopen Socha's motions for sentence modification and determine which, if any, of Socha's prior OWI convictions were lawfully vacated and to exercise their discretion in imposing sentences within the range of the applicable subsections of Wis.Stat. § 346.65(2) based on the number of Socha's prior OWI convictions after determining how many, if any, of his prior convictions have been lawfully vacated.
Milwaukee County Circuit Court case No. 2021AP1083-CR (the Whitefish Bay case)
¶2 Socha's first case on appeal begins with his arrest for OWI in December 2004 in Whitefish Bay, after a police officer observed him swerving and running a stop sign. The officer further noted that Socha smelled of alcohol, that his speech was slurred, and that he swayed when he walked; he also failed field sobriety tests. The officer reviewed Wisconsin Department of Transportation (DOT) records that showed that he had nine prior OWI convictions. Socha was charged with OWI as a fifth or subsequent offense, contrary to Wis.Stat §§ 346.63(1)(a), 346.65(2)(e) (2003-04).[4] Later testing showed that his blood alcohol concentration (BAC) was 0.289 ¶3 Socha pled guilty to the charge in February 2005. The trial court[5] ordered a presentence investigation report (PSI)-the report listed nine prior OWI offenses.[6] During the sentencing hearing in July 2005, Socha's counsel informed the court that Socha had recent convictions for OWI, bail jumping, and operating after revocation in Ozaukee County, which occurred after he committed the OWI in the Whitefish Bay case. Counsel also advised the trial court that Socha was sentenced in total to six years of initial confinement and five years of extended supervision in that case prior to his sentencing in the Whitefish Bay case. Thus, it appears that at the time of his sentencing in the Whitefish Bay case, Socha had ten prior OWI convictions. Counsel also referenced that Socha had nine prior OWI convictions in discussing Socha's alcoholism with regard to counsel's request for concurrent sentencing.
¶4 In discussing the reasoning behind its sentencing, the trial court referenced that Socha was on his tenth OWI offense that he had a 0.289 BAC for the current offense, and that he had a long struggle with alcoholism. The trial court also stated that Socha committed the Ozaukee County OWI offense while on bail for the Whitefish Bay case, which the court was sentencing in Milwaukee County Circuit Court. The court imposed a six year term of imprisonment divided as two years of initial confinement and four years of extended supervision to be served consecutively to any other sentence he had. The court also granted Socha eligibility for the earned release program upon his successful completion of an AODA program.
¶5 Socha completed the earned release program and had the balance of his initial confinement term converted to extended supervision in February 2008. In December 2008, Socha was arrested for the OWI at issue in the second appeal in this case, Milwaukee County Circuit Court case No. 2021AP2116-CR (the Glendale case). His supervision in the Whitefish Bay case was subsequently revoked, and he was ordered reconfined for the amount of time remaining on his sentence-approximately five years and eleven months. In December 2014, the Wisconsin Department of Corrections (DOC) notified the trial court that Socha's sentence did not comply with the statutory requirements for his conviction of a class H felony pursuant to Wis.Stat. §§ 973.01(2)(b)8. and 973.01(2)(d)5. (2003-04), which limited the term of extended supervision to three years. Accordingly, the trial court ordered the term of extended supervision-which had been converted to confinement time for his supervision violation-to be commuted to three years.
Milwaukee County Circuit Court case No. 2021AP2116-CR (the Glendale case)
¶6 Socha's second case on appeal begins with his arrest for OWI on December 21, 2008, when a Glendale Police Department officer observed that Socha's vehicle appeared to be stuck in a snow bank on the side of the road. When the officer made contact with Socha, she noticed that Socha had a strong odor of intoxicants and glassy and bloodshot eyes. The officer subsequently checked Socha's driving record, which showed he had eleven prior OWI convictions and a revoked driver's license. Socha was then arrested for driving with a revoked licensed and conveyed to Glendale Police Department where he performed poorly on standard field sobriety tests. Socha refused a chemical test of his blood and he was transported to a hospital for a forced blood draw. The blood test result showed a 0.32 BAC.
¶7 Socha was charged with an OWI as a tenth or subsequent offense,[7] on the basis that the criminal complaint alleged eleven prior convictions, contrary to Wis.Stat. § 346.63(1)(a), 346.65(2)(am)7. (2007-08).[8] As the case proceeded against Socha, he brought multiple pretrial motions. Socha's attorney questioned the validity of certain prior OWI convictions and then unsuccessfully attempted to preclude the State from using his prior OWI convictions at sentencing, motions which were denied by the circuit court.[9] Additionally, the circuit court denied Socha's pretrial motion to collaterally attack his prior out-of-state OWI convictions.
¶8 After a four day jury trial in March 2011, the jury returned a guilty verdict for operating a motor vehicle while under the influence of an intoxicant. Prior to sentencing, Socha brought several motions for reconsideration of the circuit court's pretrial orders, which the circuit court denied, and a motion asking that the court require the State to provide "competent[,] reliable and applicable proof of all alleged prior OWI convictions it intends to rely on for use at sentencing." However, during the sentencing hearing on May 18, 2011, the circuit court denied any reconsideration of its prior orders from pretrial or presentencing motions. Although the State referenced it submitted documentation to the court, the circuit court concluded that Socha's presentencing motion was a continuation of his collateral attacks on his prior convictions and declined to consider the motion. Ultimately, the circuit court imposed a term of imprisonment of twelve years, divided as seven years of initial confinement and five years of extended supervision. The sentence was imposed consecutively to any other sentence.
¶9 In October 2012, Socha moved for postconviction relief, arguing that the circuit court erroneously relied upon defective prior convictions at his sentencing. This court remanded the matter for further fact-finding by the circuit court regarding the proper number of prior OWI convictions, which the circuit court determined to be "at least eleven." In January 2013, the circuit court denied the motion. In January 2015, this court affirmed Socha's judgment of conviction and the order denying him postconviction relief. See State v. Socha, No. 2013AP281-CR, unpublished slip op. (WI App Jan. 13, 2015) (Socha I).
¶10 Relevant to the current appeal, in Socha I, this court addressed Socha's contention that his prior OWI convictions had not been properly counted. First this court noted that Socha affirmed by affidavit that he was convicted and sentenced for five OWIs in Ohio from 1989 through 1992, and convicted for two OWIs in Illinois, violations which occurred in 1998 and 1999, and for which he was sentenced for both in May 2000. Id., ¶19. Therefore, this court concluded that "that the challenged Ohio and Illinois convictions were properly counted." Id., ¶22. While we noted that Socha claimed that "two of his Wisconsin convictions had been vacated," we ultimately concluded that "Socha admitted to at least nine prior convictions making the trial court's imposition of sentence for a tenth or subsequent offense appropriate." Id., ¶¶25-26.
Socha's current appeals
¶11 In 2020, Socha began filing the motions that led to these appeals; as the arguments...
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