State v. Verhagen

• Citation: 827 N.W.2d 891,346 Wis.2d 196,2013 WI App 16
• Decision Date: 23 January 2013
• Docket Number: Nos. 2011AP2033–CR, 2011AP2192–CR, 2011AP2478–CR, 2011AP2889–CR.,s. 2011AP2033–CR, 2011AP2192–CR, 2011AP2478–CR, 2011AP2889–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Kim M. VERHAGEN, Defendant–Appellant. State of Wisconsin, Plaintiff–Respondent, v. Christopher J. Nickles, Defendant–Appellant.<SUP>†</SUP> State of Wisconsin, Plaintiff–Respondent, v. Craig M. Van Asten, Defendant–Appellant.<SUP>†</SUP> State of Wisconsin, Plaintiff–Respondent, v. James L. Bell, Defendant–Appellant.<SUP>†</SUP>
• Court: Court of Appeals of Wisconsin

346 Wis.2d 196

827 N.W.2d 891

2013 WI App 16

STATE of Wisconsin, Plaintiff–Respondent,

v.Kim M. VERHAGEN, Defendant–Appellant.^†

State of Wisconsin, Plaintiff–Respondent,

v.Christopher J. Nickles, Defendant–Appellant.^†

State of Wisconsin, Plaintiff–Respondent,

v.Craig M. Van Asten, Defendant–Appellant.^†

State of Wisconsin, Plaintiff–Respondent,

v.James L. Bell, Defendant–Appellant.^†

Nos. 2011AP2033–CR, 2011AP2192–CR, 2011AP2478–CR, 2011AP2889–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 16, 2012.

Opinion Filed Jan. 23, 2013.

On behalf of the defendants-appellants, the cause was submitted on the briefs of John Miller Carroll of John Miller Carroll Law Office, Appleton.

On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Cynthia L. Vopal, assistant district attorney, Green Bay; and Michael C. Sanders, assistant attorney general, and J.B. Van Hollen, attorney general.

Before HOOVER, P.J., MANGERSON, J., and THOMAS CANE, Reserve Judge.

MANGERSON, J.

[346 Wis.2d 202]¶ 1 Kim Verhagen,¹ Christopher Nickles, Craig Van Asten and James Bell appeal ² judgments of conviction for criminal operating while intoxicated (OWI). In each case, the appellant contends the circuit court erroneously denied his pretrial motion seeking an order requiring the State to prove before the jury and beyond a reasonable doubt all elements of his first-offense OWI conviction. We conclude the elements of an underlying first-offense OWI need not be proven to a jury beyond a reasonable doubt in a criminal proceeding for a subsequent OWI violation.

¶ 2 Separately, Van Asten mounts a collateral attack on a prior conviction for second-offense OWI. He contends this conviction was obtained in violation of his Sixth Amendment right to counsel. We conclude Van Asten has failed to make a prima facie showing that he was denied the right to counsel.

¶ 3 We affirm each appellant's conviction.

BACKGROUND

¶ 4 The relevant facts are undisputed. The facts pertaining to each individual appellant are as follows:

Kim Verhagen

¶ 5 The State filed a criminal complaint on November 29, 2010, charging Verhagen with third-offense OWI with an alcohol concentration enhancer. Verhagen struck a parked vehicle and admitted he had been drinking and driving. The complaint indicated that at the time of arrest, a computer check disclosed Verhagen had been previously convicted of OWI in 1998 and 2001.

¶ 6 Verhagen filed a pretrial motion based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In it, he sought an order requiring the State to prove beyond a reasonable doubt, and to a jury, the facts underlying his civil first-offense OWI. He also argued that, without any such requirement, Wis. Stat. § 343.307(1), describing which convictions are to be counted to determine the penalty for OWI, was unconstitutional as applied.³ The circuit court denied this motion, and Verhagen pleaded no contest.

Christopher Nickles

¶ 7 Nickles was charged with fifth-offense OWI on November 29, 2010. He made an improper turn and, when stopped, failed field sobriety testing. The complaint alleged that Nickles had been previously convicted of OWI-related offenses in 1991, 1993, 1994, and [346 Wis.2d 204]1999. Like Verhagen, Nickles filed a pretrial motion invoking Apprendi and mounting an as-applied challenge to Wis. Stat. § 343.307(1). The court denied the motion and Nickles pleaded no contest.

Craig Van Asten

¶ 8 Van Asten was charged with fifth-offense OWI on March 15, 2010. During a brief detention, a Kaukauna police officer smelled intoxicants on Van Asten, who displayed a “poor performance” on subsequent field sobriety tests. Van Asten admitted to having four prior OWI-related offenses, in 1996, 1999, and twice in 2001.

¶ 9 Van Asten filed a pretrial motion collaterally attacking his second OWI-related conviction, case number 1999–CT–145, on the ground that his plea had been entered without a valid waiver of counsel. In connection with this motion, Van Asten filed an affidavit in which he stated that, to the best of his knowledge, he was not “made aware by the Court ... of the difficulties or disadvantages of not having counsel on a matter such as this....” He also stated that, to the best of his knowledge, the court did not make him aware of the seriousness of the charges against him or the general range of penalties that could be imposed, particularly the length of time his driver's license could be suspended.

¶ 10 The court held an evidentiary hearing on Van Asten's collateral attack. Judge Des Jardins, who presided over Van Asten's jury trial, testified he had no specific recollection of Van Asten's case, but stated he generally discusses the right to an attorney with the accused. Judge Des Jardins then described his pro se pretrial process:

What I had done in the past is go back to chambers with a pro se individual and discuss sort of the ground rules for the trial, and then you bring up the subject of an attorney and advise them generally that if they wanted to have an attorney, there would be a continuance and explain to him ... you could benefit from an attorney. If you had an attorney, might be able to discover a defense to the case, also discover facts that could lessen the penalty or negotiate a better offer than what you already have, would do those types of things, and you know, see if they wanted to have an attorney and advise them if you want one, it's going to cost you the price of the jury.

¶ 11 Van Asten also testified. He “slightly” remembered his 1999 case and at first stated he did not remember whether anyone spoke with him about retaining an attorney. On cross-examination, however, he testified that no one mentioned his right to an attorney. Van Asten admitted that the minutes of his initial appearance in the 1999 case indicated the complaint had been read and he had been “advised of rights and options.” He also admitted he had requested a public defender and, when informed he was ineligible, subsequently requested more time to obtain counsel.

¶ 12 The circuit court rejected Van Asten's collateral attack. It found that Van Asten was aware of his right to, and the potential benefits of, an attorney. The court stressed Van Asten's testimony that he “doesn't really remember the details,” Van Asten's request for a public defender, Judge Des Jardins's testimony regarding his standard practice, and the initial appearance minutes indicating Van Asten had been advised of his rights. The court determined Van Asten failed to establish a prima facie case that he had been denied his right to counsel.

[346 Wis.2d 206]¶ 13 Van Asten also filed a motion seeking an order requiring the State to prove the elements of his first offense under Apprendi and challenging the constitutionality of Wis. Stat. § 343.307(1). The court denied the motion and Van Asten pleaded no contest to fifth-offense OWI.

James Bell

¶ 14 Bell was charged in a five-count complaint with fifth-offense OWI, refusal to submit to intoxication testing, operating after revocation, disorderly conduct, and misdemeanor bail jumping. On October 2, 2009, an individual appeared in person at the Shawano Police Department and informed them that an intoxicated man was about to get in a car parked nearby. She provided the license plate number and an officer located the vehicle, which was registered to and being driven by Bell. Bell was severely impaired and refused to submit to testing. He then threatened an officer and urinated inside the rear of the patrol vehicle on the way to the Shawano County Jail. A review of Department of Transportation records revealed Bell had been convicted of four prior OWI-related offenses, in 1990, 1992, 2000, and 2002.

¶ 15 Like the other appellants, Bell sought an order under Apprendi and raised an as-applied challenge to the constitutionality of Wis. Stat. § 343.307(1). The motion was denied and Bell pled no contest to the OWI charge.

DISCUSSION

¶ 16 These consolidated appeals present a common issue: whether, in a prosecution for a subsequent OWI-related offense, the State is required to prove the elements of an underlying first-offense OWI to a jury beyond a reasonable doubt for the purpose of penalty enhancement. The appellants argue that Wis. Stat. § 343.307(1), which describes what convictions must be counted when determining the penalty for drunk driving, is unconstitutional as applied to them because it required the courts to count civil convictions obtained without the guarantees of a jury trial or criminal burden of proof.

¶ 17 The application of constitutional standards to undisputed facts presents a question of law, which we review de novo. State v. Foust, 214 Wis.2d 568, 571–72, 570 N.W.2d 905 (Ct.App.1997). Interpretation and application of state OWI statutes also present questions of law. State v. Saunders, 2002 WI 107, ¶ 15, 255 Wis.2d 589, 649 N.W.2d 263. “[A] statute is presumed constitutional, and the party seeking to overcome the presumption must prove the statute unconstitutional beyond a reasonable doubt.” State v. Janssen, 219 Wis.2d 362, 370, 580 N.W.2d 260 (1998). “It is insufficient to merely establish doubt as to an act's constitutionality nor is it sufficient to establish the act is probably unconstitutional.” Quinn v. Town of Dodgeville, 122 Wis.2d 570, 577, 364 N.W.2d 149 (1985).

¶ 18 We begin with a brief discussion of the OWI penalty scheme. In Wisconsin, a first-offense OWI is punishable only by forfeiture. SeeWis. Stat. §§ 346.63(1); 346.65(2)(am)1. It is not a crime. SeeWis. Stat. § 939.12. However, second and subsequent violations of § 346.63(1) are crimes and are subject to penalties that increase with the number of prior violations. See § 346.65(2)(am)2.–7. In determining the number of prior violations, § 346.65 generally directs the court to consider certain enumerated offenses “plus the total number of suspensions, revocations, and other convictions counted under s. 343.307(1)....” Para...