State v. Spaeth
| Citation | 556 N.W.2d 728,206 Wis.2d 135 |
| Decision Date | 20 December 1996 |
| Docket Number | No. 95-1827-CR,95-1827-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. William E. SPAETH, Defendant-Appellant. |
| Court | United States State Supreme Court of Wisconsin |
For the defendant-appellant the cause was submitted on the briefs of John D. Lubarsky, Assistant State Public Defender.
For the plaintiff-respondent the cause was submitted on the briefs of Pamela Magee, Assistant Attorney General and James E. Doyle, Attorney General.
This case is before the court on certification by the court of appeals, following the sentencing of the defendant, William E. Spaeth, by the circuit court for Washington County, Richard T. Becker, Judge, for a fifth offense within a five-year period of operating a motor vehicle after revocation (OAR). The defendant asserts that he did not admit to, and the State did not prove, the four prior OAR convictions necessary to impose the statutorily enhanced penalties prescribed for fifth-time OAR offenders. Because we conclude that the record does not adequately establish the defendant's prior OAR convictions, we reverse and commute the defendant's sentence.
Initially, we must determine the appropriate standard for proving prior OAR convictions for purposes of sentencing under the repeat OAR penalty enhancement provisions of Wis.Stat. § 343.44(2) (1993-94). 1 We then consider whether the record in this case satisfies that standard. The resolution of these issues requires us to apply statutory language and constitutional principles to undisputed facts, which we do without deference to the circuit court. Reginald D. v. State, 193 Wis.2d 299, 305-06, 533 N.W.2d 181 (1995); State v. Anderson, 141 Wis.2d 653, 667-68, 416 N.W.2d 276 (1987).
The relevant facts are not in dispute. On July 24, 1994, Donald Kocan informed the Washington County Sheriff's Department that he observed the defendant driving an automobile in a dangerous manner on Main Street in the Town of Addison. Based upon Kocan's statement, Kocan's identification of the defendant in a photograph array, and a record check revealing that the defendant's operating privileges were in a revoked status, Deputy Dale K. Schmidt issued a citation to the defendant for operating after revocation. The citation alleged that the defendant was an "HTO," or habitual traffic offender, and that the incident was his fifth OAR violation.
At his initial appearance, without counsel, the defendant was provided with a copy of the criminal complaint. The complaint is subscribed and sworn by Captain John G. Theusch of the Washington County Sheriff's Department. Theusch alleges that the defendant operated a motor vehicle on July 24, 1994, during a period of license revocation. He then recites the enhanced penalties prescribed for both a fifth OAR offense and for committing an OAR offense while revoked as a habitual traffic offender. See Wis.Stat. §§ 343.44(2)(e)1, 351.08. 2 Theusch provides two sources for the allegations he makes in the complaint. He first refers to Kocan's statement that the latter observed the defendant driving on the date in question. The complaint then provides:
Complainant further bases his information upon review of the official police report of Deputy Dale K. Schmidt of the Washington County Sheriff's Department, who states that upon verifying the defendant's identification a subsequent record check with the Wisconsin Department of Transportation, Motor Vehicle Division, indicated that the defendant's driving privileges were revoked on November 21, 1990 as an habitual traffic offender for a period of five years and have not been reinstated. Said record check further indicates that notice of revocation was sent to the defendant at his last known address by first class mail on January 31, 1991 and that same was not returned for any reason. Said record check further indicates that the defendant was convicted of operating after revocation on February 28, 1990 for an offense occurring on December 17, 1989, on November 21, 1990 for an offense occurring on May 27, 1990, on June 6, 1993 for an offense occurring on October 1, 1992 and on May 4, 1994 for an offense occurring on March 16, 1994.
During the defendant's initial appearance, the circuit court engaged him in a colloquy, describing the charged offense and its potential penalties. When asked if he understood that he was being charged with a fifth OAR offense within a five-year period, and with driving during a habitual traffic offender revocation, the defendant answered affirmatively. The defendant also stated that he understood the potential penalties for being convicted of the charged offense. At a subsequent hearing, the defendant, now represented by counsel, entered a plea of not guilty.
Before trial, the defendant stipulated that his license was revoked on the date in question, and that he had knowledge of the revocation. In response to the circuit court's questioning, the defendant acknowledged that the only element of OAR remaining for the State to establish was that he was driving on July 24, 1994. After a trial, the jury returned a guilty verdict, and the circuit court proceeded immediately to sentencing.
At sentencing, the State requested a 60-day jail term, fines of $568, and a six-month revocation of the defendant's driving privileges. In support of its request, the State noted:
[c]onsidering this is the fifth offense and he is alleged to be, and is, a habitual traffic offender, I think the sentence recommended is well within the limitations ... provided by the statute.
Defense counsel argued instead for a 30-day sentence and a minimal fine, stating that "I understand that there is some jail time that is necessary in this case...." Before imposing its sentence, the circuit court remarked:
[c]onsidering that we have got an HTO, alleged HTO situation, certainly there is not going to be a sentence greater than the base sentence for the charge, so whether or not Mr. Spaeth is actually an HTO is not particularly relevant. But I note the number of prior convictions here. In '89 offenses, convictions in '90; offenses in '89, '90, '92 and '94. Certainly calls for some jail time. 3
The court then ordered a 60-day jail sentence, a $311.80 fine, and a six-month license revocation.
The defendant filed a motion for postconviction relief with the circuit court. In his motion, the defendant requested an order vacating that portion of his sentence attributable to any repeater enhancement. The defendant argued that he had not admitted, and the State had failed to prove, the existence of prior OAR convictions. According to the defendant, he should have been sentenced as a first-time offender, which would have resulted in no jail time. 4
In denying the defendant's motion for postconviction relief, the circuit court acknowledged that the defendant did not admit the prior OAR convictions, and that the State had presented no proof of prior convictions either at trial or at sentencing. The circuit court nevertheless concluded that the defendant was properly sentenced. The court reasoned that because the enhanced penalties under Wis.Stat. § 343.44(2)(e)1 are "self-executing," the State need not come forward with specific proof of a defendant's prior OAR convictions.
The defendant appealed. The court of appeals certified the case to this court based upon our earlier acceptance of a petition for review of State v. Wideman, No. 95-0852-CR, unpublished slip op., 1995 WL 511332 (Wis.Ct.App. Aug. 30, 1995).
The defendant argues that the enhanced penalties for OAR recidivism are substantially similar to the increased penalties for habitual criminality provided in Wis.Stat. § 939.62(1), the general repeater statute. 5 He maintains that case law, as well as equal protection and due process considerations, require the State to prove prior OAR convictions under the same standards as exist for proving prior convictions under the general repeater statute. See Wis.Stat. § 973.12(1). 6
Section 343.44(2) provides a framework of escalating penalties for successive OAR convictions. However, the statute provides no procedural rules for establishing the existence of the prior OAR convictions necessary to invoke its penalty enhancements. The statute's legislative history is similarly bereft of any mention of a proof standard.
This court has previously determined that § 343.44(2) "is essentially in the nature of a repeater statute." Steeno v. State, 85 Wis.2d 663, 672, 271 N.W.2d 396 (1978); see also State v. Baker, 169 Wis.2d 49, 64, 485 N.W.2d 237 (1992) (). The defendant derives from this statement the proposition that the similarity between the escalating penalty structures of §§ 343.44(2) and 939.62(1) requires the State to prove prior OAR convictions in the same manner as it is required to prove prior convictions under the general repeater statute.
Initially, we note that the defendant does not, and cannot, assert a statutory mandate for applying the proof requirements under the general repeater statute to sentencing for successive OAR offenses. When a person is charged as a "repeater" under § 939.62(2), that section's enhanced penalties become available "[i]f the prior convictions are admitted by the defendant or proved by the state...." § 973.12(1). Prima facie evidence of the prior convictions is established by an agency's official report documenting each conviction. Id.
The defendant is not a repeater for purposes of § 973.12(1). As defined by § 939.62(2), a repeater is a person who has been convicted of at least one felony or three misdemeanors in the five years prior to the crime for which he or she is being sentenced. However, convictions for motor vehicle offenses under chs. 341-349 are expressly excluded from the definitions of "felony" and "misdemeanor." See § 939.62(3). Thus, a...
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