State v. Van Riper, 03-0385-CR.

• Decision Date: 01 October 2003
• Docket Number: No. 03-0385-CR.,03-0385-CR.
• Citation: 267 Wis.2d 759,2003 WI App 237,672 N.W.2d 156
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Kevin J. VAN RIPER, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

267 Wis.2d 759

2003 WI App 237

672 N.W.2d 156

STATE of Wisconsin, Plaintiff-Respondent, v. Kevin J. VAN RIPER, Defendant-Appellant.

No. 03-0385-CR.

Court of Appeals of Wisconsin.

Submitted on briefs September 10, 2003.

Decided October 1, 2003.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Anthony L. O'Malley of Zacherl, O'Malley & Endejan, S.C., of Fond du Lac.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Joan C. Aguado, assistant district attorney, Winnebago county.

Before Anderson, P.J., Nettesheim and Snyder, JJ.

¶ 1. NETTESHEIM, J.¹

Kevin J. Van Riper appeals his conviction for operating with a prohibited alcohol concentration (PAC) of 0.08, as a third offense, contrary to Wis. STAT. § 346.63(1)(b) (2001-02). Van Riper contends that the State's submission of his certified Department of Transportation (DOT) driving transcript was inadmissible evidence and, in any event, was insufficient to establish his repeater status as an element of the offense beyond a reasonable doubt. Van Riper requests this court to remand for sentencing as a PAC, first offense.

¶ 2. We hold that Van Riper's DOT certified driving transcript was admissible evidence and that the transcript established Van Riper's repeater status as an element of the PAC offense beyond a reasonable doubt. We therefore affirm Van Riper's conviction, but we remand with directions that the trial court enter an amended judgment to reflect that Van Riper's conviction is for PAC, not operating while intoxicated (OWI).²

FACTS

¶ 3. Following his arrest for OWI and PAC on April 7, 2002, the State filed a criminal complaint against Van Riper alleging a third offense OWI and third offense PAC. The complaint included a DOT driving record abstract indicating two prior OWI convictions against Van Riper.

¶ 4. Prior to trial, Van Riper stipulated that he had operated the vehicle and that he had an alcohol content in excess of .08 at the time of such operation contrary to Wis. STAT. § 340.01(46m)(b), which sets the prohibited alcohol content for a third-time offender at "0.08 or more." However, Van Riper contested the remaining element of the offense—the alleged two prior OWI convictions. The parties agreed that this remaining element would be tried to the court.

¶ 5. At the ensuing trial, the State filed a certified DOT transcript of Van Riper's driving record, which reflected a November 1989 OWI conviction in Minnesota and an October 1993 OWI conviction in Wisconsin. The issue at the trial was whether the certified DOT transcript was admissible evidence and, if so, whether it sufficed to prove Van Riper's repeater status beyond a reasonable doubt. The trial court received the certified DOT driving record as evidence at the trial and further ruled that it established Van Riper's status as a repeat offender beyond a reasonable doubt. Van Riper appeals from the ensuing judgment of conviction.

DISCUSSION

¶ 6. Van Riper was convicted of operating a motor vehicle with a PAC of greater than .08 contrary to WIS. STAT. § 346.63(1)(b). Pursuant to WIS. STAT. § 340.01(46m)(a) and (b), "prohibited alcohol concentration" means an alcohol concentration of 0.1 or more if a person has one or no prior convictions as counted under WIS. STAT. § 343.307(1) or an alcohol concentration of 0.08 if, like Van Riper, a person has two prior convictions as counted under § 343.307. Thus, the crime of PAC—.08 has three elements: (1) the defendant drove or operated a motor vehicle on a highway, (2) the defendant had a PAC at the time he or she drove or operated the motor vehicle, and (3) the defendant had two or more convictions, suspensions or revocations as counted under § 343.307(1) at the time the defendant drove or operated the motor vehicle. Wis JI—CRIMINAL 2660B.

¶ 7. Here, Van Riper stipulated to the first and second elements of the offense, but contested the third element—his alleged prior convictions. Van Riper contends that the trial court erred by: (1) admitting the certified DOT transcript of his driving record into evidence; and (2) by holding that such evidence satisfied the State's burden to establish his repeater status beyond a reasonable doubt. Both issues present questions of first impression. [1, 2]

¶ 8. Generally, the admissibility of evidence is a matter within the trial court's discretion. State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983). Consequently, a trial court's evidentiary ruling will not be upset on appeal if the court had "a reasonable basis" and it was made "in accordance with accepted legal standards and in accordance with the facts of record." Id. (citations omitted).

[3]

¶ 9. The State relies on our supreme court's decisions in State v. Wideman, 206 Wis. 2d 91, 556 N.W.2d 737 (1996), and State v. Spaeth, 206 Wis. 2d 135, 556 N.W.2d 728 (1996), in support of its contention that a certified DOT driving record is admissible evidence and competent proof of a defendant's prior convictions. In both cases, the defendants challenged the evidence offered in support of their prior convictions to support the application of a penalty enhancer at sentencing. Wideman, 206 Wis. 2d at 94-95; Spaeth, 206 Wis. 2d at 142-43. We address each case in turn.

¶ 10. Wideman was charged with OWI, third offense. At the sentencing, Wideman's defense counsel stated that "the `state of the record' indicated that this was a third conviction on the offense of operating while intoxicated." Wideman, 206 Wis. 2d at 97. The trial court accepted this statement as sufficient proof of Wideman's prior convictions. Wideman later sought to vacate the enhanced penalty, arguing that the conviction should be reduced to a civil forfeiture. Id. at 97 n.7. Wideman contended that his counsel's statement was inadequate to support a finding that the had two prior offenses within the previous five years. Id. at 97. Because Wis. STAT. § 346.65(2), the OWI penalty enhancer, did not address the means by which the State is to establish prior offenses at sentencing, Wideman argued that the requirements for establishing prior offenses as set forth in Wis. STAT. § 973.12(1) of the criminal code applied to the penalty enhancement provisions of § 346.65(2).³Wideman, 206 Wis. 2d at 98-99.

¶ 11. The supreme court rejected Wideman's argument, stating:

We conclude that the difference between the two statutes rests upon a rational basis. The nature of OWI offenses and the penalties under [WIS. STAT.] § 346.65(2) justify the legislature's imposing on the State different proof requirements than those prescribed by [Wis. STAT.] § 973.12(1). Large numbers of OWI offenses are prosecuted. Moreover, in contrast with § 973.12(1), the enhanced penalties under § 346.65(2) are penalties for misdemeanors, with relatively short periods of incarceration and moderate fines. The efficient administration of the justice system militates in favor of the legislature's choice not to require the same method of establishing repeat offenses under § 346.65(2) as under § 973.12(1).

Wideman, 206 Wis. 2d at 106-07. Assuming that defense counsel had adequately investigated the defendant's driving record, the court concluded, "Allowing the accused's counsel to respond about a prior offense adequately protects an accused's due process right to a sentence based on legitimate considerations." Id. at 106. The court also instructed that if the allegations of prior convictions are incorrect or cannot be verified by defense counsel, "The State should be prepared at sentencing to establish the prior offenses by appropriate official records or other competent proof." Id. at 108.

¶ 12. Spaeth, released the same day as Wideman, was an operating after revocation (OAR) case, not an OWI case. There, the supreme court held: "[T]he State establishes the existence of a defendant's prior OAR convictions by competent proof when, at a minimum, it introduces into the record at any time prior to the imposition of sentence, either: (1) an admission; (2) copies of prior judgments of conviction for OAR; or (3) a teletype of the defendant's [DOT] driving record." Spaeth, 206 Wis. 2d at 153.

¶ 13. Thus, the cumulative effect of Wideman and Spaeth is as follows: (1) the proof requirements of Wis. STAT. § 973.12(1), the repeater statute in the criminal code, do not apply in OWI prosecutions (Wideman); and (2) a DOT teletype is competent proof of a defendant's prior convictions (Spaeth).

¶ 14. Van Riper distinguishes Wideman and Spaeth because they addressed the proof of penalty enhancement convictions at sentencing, whereas the instant case concerns proof of prior convictions at trial as an element of the substantive offense to prove a defendant's repeater status. While we appreciate the distinction, we nevertheless deem the cases instructive and persuasive.

¶ 15. In State v. Saunders, 2002 WI 107, ¶ 49, 255 Wis. 2d 589, 649 N.W.2d 263, the supreme court observed that "proof of prior convictions directly affects the sentence a criminal defendant may receive, and thus affects a major liberty interest." Both Wideman and Spaeth involved the liberty interests of the defendants. Were it not for the penalty enhancers, which rested on proof of prior convictions, neither defendant would have been subjected to jail confinement. Spaeth, 206 Wis. 2d at 143 & n.4; Wideman, 206 Wis. 2d at 97 & n.7. Despite the distinction between the trial and sentencing phases of a criminal proceeding involving a repeat offender, it makes no sense to deem the liberty interests of one category of offenders greater or lesser than the other by prescribing a differing form of evidence sufficient to prove a prior conviction. In both situations, the end result is an enhanced penalty calling for confinement based upon a prior conviction or convictions. From that, it logically follows that the proof requirements in both settings should be the same.

¶ 16. If, pursuant to Spaeth, a teletype of a defendant's DOT...